The Voting Bonus During Jim Crow

Justice John Paul Stevens (going strong at 93) gave an interesting speech a few weeks ago in which he talked about how the exclusion of African-American voters during Jim Crow gave white southerners a representation surplus in the House of Representatives and in the Electoral College.  What was the impact of that, he wondered?  It’s a good question.

Everybody knows that the original Constitution counted a slave as 3/5 of a person for purposes of representation.  What people sometimes forget is that the South wanted a slave as a whole person.  Not because they thought slaves were people, but because that ratio would give the South more representation.  As it was, those states still got a substantial advantage, as slaves could not vote and therefore could easily have not been counted at all.  Garry Wills wrote a book in which he pointed out that Jefferson’s election in 1800 was by the margin of this slave bonus, and other ante-bellum results can be traced to the same root.

When slavery was abolished, freed slaves were counted as people.  This posed a dilemma for John Bingham and his Republican colleagues, because the South was determined to keep African-Americans from voting.  In effect, the Confederacy would be rewarded with 2/5 more power in Washington than it had before Civil War.  Section Two of the Fourteenth Amendment was the first stab at solving this problem.  It said that if a state did not allow men over 21 to vote, then its representation would be reduced accordingly.  The Fifteenth Amendment was another prescription to ensure African-American voting. But following the defeat of the Populists (as I discussed in my last book), African-Americans were completely disenfranchised in the South.

This meant that between roughly 1900 and 1965, the ex-Confederacy had more members of Congress and more Electoral College votes than it was entitled to.  With respect to the House of Representatives, it’s hard to say how much this mattered.  There may be close votes that could have turned on the Jim Crow bonus, but that is not so clear.  (In the Senate, of course, representation does not change the number of senators per state.)  In the Electoral College, though, I think we can see some relevant examples.  For instance, Woodrow Wilson won the 1916 presidential election very narrowly–277 to 254–over Charles Evans Hughes.  Wilson carried every ex-Confederate State.  Did those states have 12 extra electoral votes as a result of the representation distortion?  Could be.

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5 Responses

  1. Joe says:

    “Not because they thought slaves were people”

    They did realize that slaves were people (e.g., by holding them guilty of crimes, unlike animals) though whatever the motivation here, if not “the people” as in a political class. Another historian challenged the 1800 election theory; at the very least, noting the footnote that if the Federalists truly played fair in PA that Jefferson would have won anyway.

    The 14A provision in question to my knowledge was never put into effect. In the mid-20th Century, an attempt was made to enforce it in court, but it was deemed a political question. Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870 (1946).

  2. Ken Rhodes says:

    One way to look at the question is as you have done; i.e., was the South overrepresented?

    A different take would be to suppose they had followed the Constitution (15th A) and accorded every citizen his vote. Then the South would not have been overrepresented, but the voting results might have been very different. Or maybe not.

  3. mls says:

    How exactly was Section 2 supposed to be enforced? It appears that one would take the census results and reduce them by the percentage of disenfranchised male voters over 21. This calculation would presumably be made by Congress after it received the census results and before it enacted a reapportionment law. Thus, there would be no way of enforcing the provision without a congressional enactment, which presents some obvious political problems.

    But it should be simple enough to take the census results from Southern states and calculate how much their census results would have changed based on the assumption that the entire African-American population was disenfranchised, and then figure out how this would have altered representation under the applicable formula. Has no one done this?

  4. Very interesting information. I was not really aware of how this all went down. It clearly had an impact, but I am not sure what it all means as far as shaping our future. In any event, very interesting.

  5. Reply to Ken says:

    We know the result would have been different because when blacks were allowed to vote during Congressional Reconstruction, Republicans dominated state government. Those Republican state governments spent money on education, health, and all sorts of things that ordinary people want. When blacks were prevented from voting, Democrats dominated state governments and funding for education, etc. almost disappeared. So, it’s hardly speculation to say that Jim Crow distorted American politics, making both the South and Congress more conservative.