Suppose an African American goes to the polls on Election Day. Although she registered to vote many months earlier, precinct workers turn her away. "You're black," they tell her, "and blacks can't vote." The following year, the same voter goes to the polls and is rejected again. This time, the election workers offer a new rationale. "Your name doesn't appear on our list," they say.
The year after that, the African American tries once more to vote. Much to her surprise, the workers allow her to cast a ballot. Because of a technological error, however, her ballot is never counted. "Mistakes happen," the precinct workers tell her.
Which of these instances reflects racial discrimination against the voter? And what, if anything, should we do about it?
The first episode is the easy one. Barring somebody from the polls on the explicit basis of race violates American law as well as our national conscience. When Congress passed the Voting Rights Act of 1965, many white Americans still thought that states and localities should be allowed to prevent blacks from participating in elections. Just three decades later, however, the majority of Americans — of every race — say that every citizen should have the same right to vote.
The next two instances — the faulty list and the rejected ballot — are much harder to judge. If registration and counting errors affected all races equally, it would be difficult to argue that our hypothetical African American suffered discrimination. But if these mistakes occurred disproportionately in black neighborhoods, then she might have a case.
In Florida, she does.
On Nov. 7, The New York Times has reported, registered black Floridians were more likely than other voters to be turned away from the polls. When a voter failed to appear on their lists, precinct workers were instructed to dial a central phone line or to check registration lists on a laptop computer. But very few majority-black districts received the laptops. If the phone line was busy, then workers in these precincts would not allow unlisted voters to cast ballots. White and Hispanic districts enjoyed greater access to the computers, so they also had an easier time verifying their voters.
Moreover, most black Floridians voted in counties that used the state's notoriously error-prone punch cards. Hence blacks were also more likely to have their ballots rejected as blank or invalid than were white voters, whose precincts generally used an optical scanning system to count ballots.
These troubling facts should make us re-examine our last disputed presidential contest, the Hayes-Tilden battle of 1876. Most recent commentators on this episode have focused upon the issue of the Electoral College, since the winner — Republican Rutherford B. Hayes — received fewer popular votes than did the loser, Democrat Samuel Tilden. But this emphasis upon our method of choosing presidents neglects the critical role of race, and thereby blinds us to the real lessons of history.
Like Vice President Al Gore, Tilden initially contested the outcome of the election. He eventually conceded, but not before his Democratic Party extracted its own concession: Hayes and the GOP would agree to withdraw federal troops from the old Confederacy, where they had been posted since 1867 to protect new black freedoms — especially the right to vote. "The whole South is in the hands of the very men that held us as slaves," one bitter African American noted.
In truth, the South had been handed back to whites several years earlier. Pressured by enemies within his own party, Republican President Ulysses S. Grant had stopped enforcing civil rights in the South by 1875. In the 1876 election, then, Southern blacks could not vote without risking attack — or death — at the hands of such white vigilantes as the Ku Klux Klan.
Some courageous blacks went to the polls. But many others stayed home, making the election far closer than it should have been. Had blacks been allowed to participate freely, they would have added thousands of votes to the party of Lincoln — and Hayes would have easily won the election at the ballot box, as virtually every leading historian of the period now maintains.
Fast forward to our own disputed election, where the party roles are reversed: African Americans cast their votes overwhelmingly for Gore and the Democrats, not for George W. Bush and the Republicans. If large numbers of black voters had not been turned away — and if large numbers of blacks' ballots had not been rejected — we can fairly assume that Gore would have taken Florida and would have advanced to the White House.
Yes, there is a difference between denying people the vote because of their race — as occurred in 1876 — and denying them the vote because of a bureaucratic error. Whatever their cause, however, Florida's electoral mistakes had a discriminatory effect: they disenfranchised black voters more often than white voters. That should worry any American who believes in racial equality.
There may soon come a time when Al Gore — like Samuel Tilden before him — is forced to concede this year's election. Whereas the Democrats of 1876 struck a blow against civil rights, though, the Democrats of 2000 have an opportunity to strengthen them. In exchange for recognizing the Bush victory, Gore should demand a full investigation of the Florida vote and a uniform federal law on election procedures. That would hardly atone for the sins of the past, of course, but it might make us less likely to repeat them in the future.
Jonathan Zimmerman teaches history and education at New York University. He is the author of "Small Wonder: The Little Red Schoolhouse in History and Memory" (Yale University Press).