The electoral college is once again confounding the country as it prepares to meet Dec. 14 to ratify the election of Joe Biden as the 46th president of the United States. Just one problem: President Trump refuses to concede to Biden, making baseless claims of fraud while his surrogates urged Michigan legislators to overturn the election by appointing their own electors. On Saturday, Trump phoned Georgia Gov. Brian Kemp (R) and urged him to call a special session of the state legislature and persuade lawmakers to appoint electors that would back him instead of Biden, The Washington Post reported.
Biden is expected to win the electoral college by the same margin Trump did in 2016. Back then, Trump declared his victory a landslide, though he trailed in the popular vote by nearly 3 million while this time Biden leads the popular vote by more than 7 million.
The closest the country has ever come to abolishing the electoral college was after segregationist Gov. George Wallace’s presidential campaign nearly threw the 1968 election.
Wallace was a man accustomed to winning power on technicalities. The state constitution in Alabama forbade governors from serving two consecutive terms. When his first term as governor was running out in 1966, his wife Lurleen ran to succeed him, promising to “continue, with my husband’s help, the same type of government.” She won in a landslide.
So, when he decided to run for president in 1968 as a third-party candidate, he had a trick up his sleeve there, too. His goal wasn’t to beat the Democratic or Republican candidates for the White House; it was to deprive both men of the 270 electoral votes needed to win, thus kicking the decision to the House. Then, as his biographer Dan Carter put it in a 2001 PBS documentary, Wallace would be “in a position to dictate to either candidate, ‘Alright, if you support me on the following issues, then I’ll deliver the presidency.’ ” And what were those issues? An end to federal desegregation efforts, for starters.
By this time, Wallace had learned the art of the dog whistle and was no longer saying things like “segregation now, segregation tomorrow, segregation forever” out loud. But he still inflamed rally crowds with his talk of rioters, hippies and anarchists. In the chaos of 1968, many White voters flocked to him. By October, polls showed him with 22 percent support nationally, more than enough for his electoral college hack to work.
But then Wallace dealt himself his own October surprise. He announced his running mate, Curtis LeMay, a retired Air Force general, who promptly told a room full of reporters he wasn’t opposed to nuking Vietnam.
In the end, Wallace got 14 percent of the popular vote, and 46 electoral votes, carrying most of the South. But Republican Richard M. Nixon got 301 electoral votes, foiling Wallace’s plan. Had Wallace gotten 50,000 more votes in Tennessee and had Democrat Hubert Humphrey gotten 91,000 more votes in Ohio, it would have been successful.
The near miss was enough to spur Congress to action.
Enter Birch Bayh. In 1963, the young senator from Indiana had been assigned to chair a subcommittee on constitutional amendments — usually a sleepy gig, but not so for him. First, he wrote the 25th Amendment, which outlines rules for presidential replacement due to incapacitation, resignation or death. Later, he did the same with the 26th Amendment, lowering the voting age to 18. He also wrote the Equal Rights Amendment, which fell just short of ratification in the 1970s.
President Lyndon B. Johnson had asked Bayh to work on reforming the electoral college, but after studying it, he decided it couldn’t be reformed and had to be abolished. He had first introduced legislation to replace it with a direct popular vote in 1966. But other lawmakers didn’t pay much attention until Wallace’s wake-up call. Suddenly it had bipartisan support, as well as popular sentiment; Gallup polling showed public support for the direct vote of the president at 80 percent, up 22 points in two years.
American history showed that the franchise was constantly expanding — to White men without property, to women, to African Americans — and moving toward a direct vote, as it had for the Senate. So it was natural this pattern should continue, Bayh said. The electoral college and the winner-take-all system made one person’s vote in a swing state matter more than other votes elsewhere; all votes counting equally would encourage more people to vote, he said.
“We are at long last arriving at the place and time in our history where meaning has been brought to the preamble of our Constitution — ‘We, the People of the United States,’ ” he argued in a Senate speech.
In September 1969, the proposed amendment sailed through the House, passing 339 to 70. Nixon, a Republican, threw his support behind Democrat Bayh’s proposal, and it appeared a majority of state legislatures would ratify it.
So what happened to the senator’s bill? The Senate.
Southern senators led by South Carolina’s Strom Thurmond were perfectly happy with the system as it was. As Wallace had demonstrated, the electoral college increased the importance of the Southern White vote; and the winner-take-all system effectively canceled out the Black vote so long as Southern Blacks remained the minority.
The group blocked the amendment from moving forward with a filibuster. (For what it’s worth, the filibuster is another old convention that many argue should be abolished.) The amendment died on the Senate floor the next year.
Bayh tried throughout the 1970s to bring it to a vote, which finally happened in 1979 after President Jimmy Carter expressed support for direct election. It received a majority vote but not the two-thirds majority needed to pass a constitutional amendment.
Bayh, who died in 2019, lived long enough to see his worst fears — the loser of the popular vote winning the electoral college — realized.
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