As Americans once again look to the Electoral College to resolve another close presidential contest, it’s worth remembering that a half-century ago, the nation nearly did away with the system entirely.
Over the course of the 1960s, a movement to reform and, ultimately, get rid of the Electoral College steadily gained momentum.
“Mere procedural changes in the present system would be like shifting around the parts of a creaky and dangerous automobile engine."
In 1966, Sen. Birch Bayh, an Indiana Democrat, introduced an amendment calling for the direct election of the president by the popular vote. While others had called for small changes to the Electoral College before — removing the middlemen of electors, for instance, or allotting a state’s electoral votes on a more proportional basis — Bayh called for scrapping the antiquated system entirely.
“Mere procedural changes in the present system would be like shifting around the parts of a creaky and dangerous automobile engine, making it no less creaky and no less dangerous. What we may need is a new engine,” he suggested, “because we are in a new age.”
Arguably, we're still living through that crisis today. We've felt the restrictions of the Electoral College in this current election, as we watch former Vice President Joe Biden and President Donald Trump tediously battle it out for electoral votes county by county. In two of the previous five presidential elections, the winner of the popular vote was denied the presidency due to the Electoral College. And for a brief period this week, it seemed likely that it might happen once again in 2020.
In these instances, the margin between the popular-vote winner and the winner of the Electoral College has only grown. In 2000, Al Gore won the popular vote by a half million votes; in 2016, Hillary Clinton won it by nearly 3 million votes. As of Thursday evening, Joe Biden had racked up roughly a 4 million vote lead, with more votes yet to be counted, but not even that margin was enough to guarantee a win. (As some noted before the election, Biden could have won the popular vote by 5 or 6 percentage points and still had a real chance at losing the race.)
Biden could have won the popular vote by 5 or 6 percentage points and still had a real chance at losing the race.
Bayh’s proposed constitutional amendment fared better than any one like it, receiving bipartisan support from presidents and legislators alike and even passing in the House by wide margins. But of course, the reform movement failed and the Electoral College lived on. But the history of this effort serves as a powerful reminder that it wouldn’t be unthinkable to replace this engine, especially as it’s only gotten creakier and more dangerous over the years.
The spark for the 1960s movement came out of a series of landmark Supreme Court cases that together established the precedent that democratic elections should be based on the principle of “one person, one vote.” These cases, which Chief Justice Earl Warren later declared were the most important of his entire tenure on the court — more important than Brown v. Board of Education, even — involved “malapportionment” in state-level elections.
In the early 20th century, several states instituted new measures for counting votes in state elections, measures that exaggerated the political influence of older rural areas at the expense of newer urban ones. States from California to Vermont enacted these schemes, but the most notorious systems sprang up in the Jim Crow South.
As these states became more urbanized in the mid-20th century, the imbalances became impossible to ignore. In Tennessee’s system, a single vote cast in a rural county had the same weight as 19 votes from Hamilton County. Under Georgia’s program, meanwhile, a lone ballot in the state’s smallest county counted as much as 99 votes sent from Atlanta’s Fulton County.
The Supreme Court had long shied away from “political” cases, but the egregiousness of the imbalance — and the ramifications it had in southern and national politics — convinced the Warren court to wade in at last, articulating the “one person, one vote” principle and implementing it across the South and the nation.
Pointedly, the justices argued that geographic distinctions could not justify political inequalities. Warren explained in one decision, “The basic principle of representative government remains, and must remain, unchanged — the weight of a citizen's vote cannot be made to depend on where he lives.” Heavily populated cities didn’t deserve to be penalized, and sparsely populated rural regions didn’t deserve to be rewarded. “Legislators represent people,” the chief justice noted, “not trees or acres.”
“Legislators represent people,” the chief justice noted, “not trees or acres.”
The logic of the court’s rulings at the state level applied to nationwide presidential contests, of course, but the Electoral College’s place in the Constitution meant a change could only come through a constitutional amendment. That’s where Bayh came in.
In 1966, Bayh had a track record with constitutional amendments, successfully shepherding the 25th Amendment on presidential succession through Congress and through ratification by the states. The new proposal proved popular, too. In 1967, for instance, the Gallup Poll reported that 65 percent of Americans favored replacing the Electoral College with a new system in which the president was directly elected by the popular vote.
The very next presidential election underscored the need for change. Alabama Gov. George Wallace, running an independent third-party campaign, made a surprisingly strong showing, winning 45 electoral votes across the South. Wallace’s performance nearly denied Richard Nixon the votes needed to win in the Electoral College, a development that would have sent the election to the House of Representatives and sent the nation into chaos. America had narrowly avoided a “brush with catastrophe,” Bayh argued. Americans overwhelmingly agreed, with Gallup reporting that support for electing presidents by popular vote had jumped to 80 percent.
Bayh’s amendment quickly snapped up supporters from both parties, with nearly half the Senate signing on as formal sponsors. In September 1969, the change passed the House by an overwhelming margin of 339 to 70, with votes in favor drawn nearly equally from Democrats and Republicans alike. As the proposal headed to the Senate, Nixon announced his support as well.
But like many changes, the constitutional amendment was throttled in the Senate. Republican Strom Thurmond of South Carolina led a bipartisan coalition of southern conservatives against the measure. Convinced that the system’s inequalities were necessary to preserve their power, they vowed to defend it at all costs, with repeated procedural delays and filibusters. Ultimately, they kept the Senate from voting on the amendment and thus kept the Electoral College in place.
Bayh tried to keep the crusade alive, though he never succeeded. But his warnings remain with us. “It is essential,” he wrote in 1969, “that action be taken before we experience an actual crisis that could shake the very foundations of our democracy.”
At this rate, we’re on a course for an election soon in which one candidate wins the popular vote by a staggering margin — 8, 9 or perhaps 10 million votes — but is denied the presidency due to the archaic mechanisms of the Electoral College. If that happens, the engine will explode, and perhaps our democracy will, too.