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Peculiar
Institution
Alexander Keyssar
The Boston Globe
October 17, 2004
Critics say the Electoral College is
antiquated, undemocratic -- and, many fear, impossible to get rid
of. But in 1969, it almost met its end.
ONE OF THE MORE surprising features of the controversy surrounding
the 2000 election was its failure to spark any sustained effort to
abolish or reform the Electoral College. When it first became
apparent that Al Gore had won the popular vote but lost the
election, some politicians and pundits predicted that the end had
finally come for America's most peculiar political institution:
Americans, after all, believed that democracy meant majority rule.
But months later, when a variety of committees began to consider
reforms that could spare the country a repeat of Election 2000, the
spotlight focused on voting technology and provisional ballots
rather than the Electoral College. The National Commission on
Federal Election Reform, headed by former presidents Carter and
Ford, decided early on not to even discuss the issue. "I think
it is a waste of time to talk about changing the Electoral
College," Carter observed. "I would predict that 200 years
from now, we will still have the Electoral College."
Carter's prediction stemmed not from enthusiasm for the Electoral
College (he had strenuously urged its abolition when he was
president) but from a widely shared pessimism about the possibility
of getting rid of it. The key to that pessimism was the conviction
that the "small states" would never relinquish the
advantage that the Electoral College gives them.
According to the Constitution, each state casts a number of
electoral votes equivalent to the size of its delegation in the
House of Representatives (which is proportional to the state's
population) plus two (for its two Senators). This system gives
disproportionate weight to voters in small states: In 2000,
forexample, South Dakota had one electoral vote for every 230,000
people, while each of New York's electoral votes represented more
than 500,000. Whatever the merits of the arguments for and against
the Electoral College, it was assumed that the small states would
defend this numerical advantage and block any constitutional
amendment instituting a national popular election. Only fuzzy-minded
idealists would want to tilt against that windmill.
What was not discussed in the aftermath of the 2000 election was the
little-known fact that the United States came very close to
abolishing the Electoral College in the late 1960s. A constitutional
amendment calling for direct popular election of the president was
backed by the American Bar Association, the Chamber of Commerce, the
AFL-CIO, the League of Women Voters, and a host of other
un-fuzzy-minded pillars of civil society. On Sept. 18, 1969, the
House of Representatives passed the amendment by a huge bipartisan
vote of 338 to 70. President Nixon endorsed it, and prospects for
passage in the Senate seemed reasonably good. A poll of state
legislatures indicated that the amendment would likely be approved
by the requisite three-quarters of the states.
The effort ultimately failed -- but not because of concerted
opposition from the small states. In fact, many political leaders
from small states supported the amendment. What blocked the reform
movement was a more troublesome cleavage -- one involving race and
the political power of the South.
The way America elects its presidents has been controversial since
the early years of the Republic. Between 1790 and 1890, more than
200 amendments were introduced into Congress to alter the electoral
system, and a similar number appeared in the 20th century.
Between 1948 and 1956, Congress seriously considered several
amendments designed to eliminate the "winner take all"
allocation of electoral votes -- ironically, in order to reduce the
power of the large states, such as New York, which were viewed as
the keys to presidential elections. One amendment called for the
electoral votes of each state to be divided among candidates, in
proportion to the popular vote that they received (similar to the
proposal now on the ballot in Colorado). Another would have
distributed a state's electoral votes among its congressional
districts (much as Maine and Nebraska do now).
Amendments calling for a direct popular vote had also been
introduced as early as 1816, but for most of our history such
proposals were doomed by a stark political reality: The South would
never accept them. The issue was not small states versus big states
but slavery and racial discrimination.
Before the Civil War, the "three-fifths compromise" in the
Constitution meant that slaves counted (as three-fifths of a person)
towards a state's representation in Congress and thus in the
Electoral College. Had the president been elected by a popular vote,
Southern influence would have shrunk sharply, limited to the number
of votes actually cast.
This system operated even more perniciously during the Jim Crow era
(extending into the 1960s), when the white South benefited from what
could be called the "five fifths" clause: African
Americans counted fully towards representation in Congress and the
Electoral College, but they still could not vote. The number of
votes actually cast in the South between 1900 and 1960 was tiny in
comparison to the size of its electoral vote. A popular election for
president, thus, would have dramatically reduced the political power
of the South while creating pressure for Southern states to expand
the franchise.
Yet the landscape of racial exclusion was shifting in the 1960s, in
ways that opened the door to electoral reform. The 24th Amendment
banning poll taxes (1964), the Voting Rights Act of 1965, and a
series of Supreme Court decisions led to the enfranchisement of
African Americans in the South and to more uniform suffrage
requirements throughout the nation. In addition, the Supreme Court
embraced the principle of "one person, one vote,"
insisting that legislative districts be roughly equal in size.
Having a vote be "worth more in one district than in
another," the court declared in 1964, violated "our
fundamental ideas of democratic government."
These momentous changes meant that the South had less to lose from
direct presidential elections. They also reflected a broad-gauged
impulse to fully democratize American politics -- an impulse that
fed the drive to abolish the Electoral College. Senator Howard Baker
of Tennessee, a Republican from a small state and an ardent advocate
of direct elections, insisted that eliminating the Electoral College
was "a fundamental question of national fairness."
"Any system which favors one citizen over another or one state
over another," Baker declared on the Senate floor, "is . .
. inconsistent with the most fundamental concept of a democratic
society."
Reform efforts were also spurred by some unusual twists in
presidential elections. In the four-person race of 1948, Dixiecrat
Strom Thurmond attempted to force the election into the House of
Representatives by preventing any candidate from gaining an
Electoral College majority. In 1960, John Kennedy's razor-thin
victory over Richard Nixon raised the specter of a president being
elected without winning the popular vote.
A final jolt came in the run-up to the 1968 election, when some
analysts feared that segregationist candidate George Wallace would
win enough electoral votes to deny a majority to either Nixon or
Hubert Humphrey and would then act as a king maker, offering his
electoral votes to the candidate most willing to cut a deal. As it
turned out, Nixon did not need any of Wallace's 46 electoral votes,
but the risks had been made apparent -- and they were underscored
when a "faithless" Nixon elector from North Carolina
decided to cast his vote for Wallace instead. Within months,
Congress went into action.
In February 1969, the House Judiciary committee, chaired by
81-year-old Emanuel Celler of New York, began hearings on electoral
reform. Uncommitted to any particular plan, the committee
entertained proposals for direct elections, proportional systems,
district systems, and minor tinkering that would simply cure the
problem of the "faithless" elector.
The committee listened to the testimony of more than 100 witnesses,
including business and labor leaders. Among the witnesses was law
professor John Banzhaf, the author of an influential
"mathematical analysis" showing that, contrary to popular
opinion, the Electoral College gave more "voting power" to
citizens of large states -- an inequality that could be remedied
only by popular elections. The committee endorsed that view in
April, approving a direct-election bill by a vote of 29 to 6.
On Sept. 10, the committee's proposal reached the floor of the
House, and eight days later it passed by far more than the required
two-thirds vote. Nixon went on to endorse the bill, and several
national polls indicated widespread public support for the abolition
of the Electoral College.
But the momentum for reform was about to slow. The Senate Judiciary
Committee was chaired by James Eastland of Mississippi and counted
Strom Thurmond among its members. Both men were die-hard
segregationists who had voted against every civil-rights and
voting-rights measure that had come before them. Neither wanted to
have presidents elected by a national, popular vote.
Eastland used his prerogatives as chair (and Thurmond's threat to
filibuster the committee) to keep electoral reform on the back
burner. Early in 1970, however, Birch Bayh -- an able young senator
from Indiana who chaired the subcommittee on constitutional
amendments and favored direct elections -- engaged in an adroit
procedural maneuver to force the Judiciary committee to address the
issue. When President Nixon nominated conservative Southerner G.
Harrold Carswell to the Supreme Court (after the Senate had rejected
the equally conservative but ethically challenged Clement Haynsworth
of South Carolina), Bayh threatened to hold up the Judiciary
committee's consideration until Eastland set a date for hearings on
the Electoral College.
Eastland and Thurmond relented, and the bill, after passing the
committee by a vote of 11 to 6, reached the Senate floor in early
September 1970 -- nearly a year after the momentum for reform had
crested. Senators Bayh, Baker, and others spoke eloquently about the
shortcomings of the Electoral College and the virtues of popular
election. But they were greeted by a prolonged filibuster led by Sam
Ervin of North Carolina, another opponent of civil rights and the
Voting Rights Act. For several weeks, Ervin, Thurmond, and their
allies took the floor to criticize the measure, arguing that it
would undercut states' rights, harm the small states, destroy the
two-party system, and encourage splinter parties, fraud, and
intrusive national voting requirements. They also stalled
relentlessly, even reading into the record the name of every prime
minister of France since 1800, as evidence that direct elections
produced instability.
The critical votes came on Sept. 17 and 29, on proposals to invoke
cloture (end debate) and bring the direct-election amendment to a
vote. The first cloture vote failed by six votes and the second by
five. On Oct. 5, the issue was shelved indefinitely.
So what was it that tripped up a reform whose time
seemed to have come? The votes on the cloture motions tell a key
part of the tale. More than two-thirds of all Democrats supported
cloture, presumably favoring the direct-election amendment. The
Republicans were evenly divided, as were Senators from the 26
smallest states.
The critical cleavage was regional: Only six southern senators voted
to end debate, while 20 did not. Sixty percent of all of the
"no" votes came from the South. What defeated the drive
for direct elections was not the opposition of the small states --
although that did play a minor role in the debates and the Senate
vote. The key instead was the resistance to change from a region
whose politics had long been shaped by racial exclusion.
The political landscape was indeed shifting, and after the Voting
Rights Act of 1965 the Electoral College could never serve the white
South as it had in the past. But in 1969 no one knew how it would
all turn out, or how George Wallace might fare in 1972. Savvy
old-timers like Ervin and Thurmond were preserving the familiar,
protecting states' rights wherever they could, resisting further
intrusions by the federal government. Direct elections were one more
threat to the old order, and this was a battle that the South could
-- and did -- win.
The outcome of that battle ultimately led to George Bush winning the
White House in 2000. It could also determine the victor in this
year's tight race. If a candidate once again wins the Electoral
College but loses the popular vote, pressure for change will
certainly mount, and there is no telling how different political
interests might line up.
What's New
Past Attempts at
Reform
Electoral College Table of
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