When America Was A Dozen Votes from Abolishing The Electoral College
Why we failed then continues to haunt us today
In 2016, Donald Trump won the presidency, but lost the national popular vote by almost 3 million votes. Before Joe Biden’s victory last November, two of the previous three presidents had been elected by a minority of voters thanks to the electoral college. Such a scenario has only happened three other times in American history.
When the framers wrote the Constitution, they themselves didn’t think the electoral college was a good way to decide the presidency. They felt it was a hasty, slap-dash compromise born out of fatigue. Many thought it would be done away with in the near future. Throughout most of the twentieth and twenty-first centuries, a clear majority of Americans have consistently supported getting rid of it. Since our nation’s founding, we’ve tried to abolish it about 700 times. Why, then, do we still have it? Why is this provision in our Constitution so impervious to change?
During the late 1960s, an amendment abolishing the electoral college had bipartisan support in both the House and Senate, as well as the blessing of then President Richard Nixon. It appeared likely that the unpopular system was finally going to die. Why and how it lived on serves as an important guide for Democrats and the incoming Biden administration should they attempt to do away with this anachronistic way of electing the president.
While plans to replace the electoral college circulated throughout the late 19th and early 20th-centuries, it wasn’t until the 1960s, when the country was looking inward and grappling with the civil rights movement, that momentum for reform really began to gain traction. In 1966, at the request of congressional and executive officials, the American Bar Association (ABA) began work on a report about presidential election reform. A year later, the ABA issued a widely publicized report calling for a constitutional amendment that would make the President and Vice President elected by a direct, nationwide popular vote.
The ABA’s report reflected a growing consensus among the American public that the electoral college needed to be reformed. In 1966, for example, a Gallup Poll found that 63 percent of respondents favored abolishing the electoral college and implementing a national popular vote. While most believed reform was needed, there was disagreement over what exactly should be done. Multiple plans emerged.
Momentum began to build within the halls of Congress, too. In 1966, the Subcommittee on Constitutional Amendments, part of the Senate Judiciary Committee, started in-depth hearings on multiple plans for reforming the electoral college. Some thought a state’s electoral votes for president should automatically go to the candidate who won that state’s popular vote, a plan that would have solved rogue electors voting for someone else. Others thought a state’s electoral votes should be split between candidates in proportion to their share of the popular vote. Still others advocated for a direct popular vote.
Up until this point, the last time a candidate had won the presidency but lost the popular vote was in 1888, with the election of Benjamin Harrison. During the 1960s, many people were concerned this might happen again. And it nearly did in both 1948 and 1960. This anxiety was on a lot of people’s minds and further animated reform efforts. Here’s a clip of Senator Birch Bayh, the one who spearheaded reform efforts in the Senate, impressing upon his Democratic colleagues the dangers posed by the electoral college.
In 1968, fears of a president elected by a minority of voters were once again stoked after Richard Nixon edged out Democratic challenger, Hubert Humphrey, by less than one percent of the national total. After the election, the House and Senate, which were both made up of solid Democratic majorities, took up the issue of presidential election reform. A fresh round of hearings began in both chambers. The country, meanwhile, continued to debate. Newspapers and journals teemed with editorials for and against reform. Critics were hesitant to tamper with the Constitution. They believed that abolishing the electoral college would destroy the two-party system and drown out the voices of rural and small-state voters.
In September 1969, the Celler amendment — which proposed that the candidate with the largest total popular vote become president — emerged from the House Judiciary Committee and went to the floor for a vote. It surprisingly passed 339 to 70, much more than the 2/3rds majority required by the Constitution. President Nixon quickly endorsed it. This massive victory created a wave of optimism among reformers. A week after the vote, a Gallup poll indicated a staggering 81 percent of Americans supported an amendment for a direct national vote for president. To many Americans, it looked like this constitutional relic was finally going to be eliminated.
If the House was more or less united, the Senate was a different story. The Bayh amendment, the Senate equivalent of the Celler amendment, stalled in the republican led Senate Judiciary Committee. The Committee Chair, Senator James Eastland, a Mississippi planter and staunch defender of segregation, delayed bringing it to a vote. Eventually, seven months after the amendment passed the House, the Bayh amendment emerged out of Committee and was brought to the Senate floor. In that time, however, earlier momentum fizzled out and opponents of the national popular vote had time to regroup. Their procedural maneuvering drew the ire of the national press.
When the Bayh amendment finally came to the Senate floor, the outcome was far from certain. Each side claimed it had enough votes to defeat the other. There were about 12 undecided votes that had the potential to sway the outcome one way or the other. On top of this, the threat of a filibuster hung in the air.
Debate dragged on as critics of the amendment kept delaying calls for a vote. Those in the minority, including Senator Eastland, eventually filibustered. Bayh and supporters of the amendment failed to gain the necessary 2/3rds vote to proceed. The amendment, which a majority of Senators supported, was blocked by a coalition of southern Democrats and conservative Republicans from small states whose combined constituencies made up only 27% of the population. Any hope of eliminating the electoral college was dead.
The filibuster, a Senate procedural motion not outlined in the Constitution nor envisioned by the founders in any way, was eventually what preserved an electoral college system that an overwhelming majority of Americans did not want (and still don’t want). In 1969–70, the filibuster had only been used seven times in the Senate. Today, that number is 292 — and growing. The amendment still needed the requisite 38 states to become law but given its widespread support among the American public this seemed likely.
A half-century later, the worst fears of both Democrats and Republicans during the 1960s — that a candidate would win the popular vote but lose the election through the electoral college — has happened twice: once in 2000 with George W. Bush, an election that precipitated a constitutional crisis, and again in 2016 with Donald Trump. Since 1970, a clear majority of Americans have continued to support the reform or abolition of the electoral college. Every four years, it seems, the country comes together and collectively scratches its head, wondering why it is we continue to use an election system that our founders never thought was a good idea and one that a majority of us don’t want.
As one senator from the 1950s put it, “Every four years the electoral college is a loaded pistol pointed at our system of government. Its continued existence is a game of Russian roulette. Once its antiquated procedures trigger a loaded cylinder, it may be too late for the needed corrections.” We pulled that trigger in 2016 and, though hemorrhaging, remain alive. The bullet may have only grazed the skull, but the wound remains to be healed.
