On September 18, 1969, the U.S. House of Representatives voted by an overwhelming 338 to 70 to send a constitutional amendment to the Senate that would have dismantled the Electoral College, the indirect system by which Americans elect the president and vice president.
“It was the only time in American history that a chamber of Congress actually approved an amendment to abolish the Electoral College,” says Jesse Wegman, a member of the New York Times editorial board and author of Let the People Pick the President: The Case for Abolishing the Electoral College.
The House vote, which came in the wake of an extraordinarily close presidential election, mirrored national sentiment about scrapping an electoral system that allowed a candidate to win the presidency even while losing the popular vote. A 1968 Gallup poll found that 80 percent of Americans believed it was time to elect the nation’s highest office by direct popular vote.
Yet just a year later, the Senate bill that would have ended the Electoral College was dead in the water, filibustered by a cadre of Southern lawmakers intent on preserving the majority’s grip on electoral power in their states. Despite widespread bipartisan support for the amendment in both large and small states, the Senate came five votes shy of breaking the filibuster.
“It was a remarkable effort,” says Wegman of the late 1960s movement that came “painfully close” to killing the Electoral College. “We’ve never seen anything like it before, and I fear we may never see anything like it again.”
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‘One Person, One Vote’
The Electoral College came under fire in the 1960s as part of a larger effort to win full voting rights for Black Americans, particularly in the South. While Civil Rights lawyers fought discriminatory practices like poll taxes that disproportionately barred Blacks from voting, others were challenging a lesser-known phenomenon called “malapportionment.”
Malapportionment refers to the practice—not limited to Southern states—of allotting vastly unequal numbers of residents to legislative districts in different parts of a state. In theory, the most populous districts in each state should have the most representatives in the legislature, but in practice that wasn’t the case. Starting in the 1920s, a wave of rural Blacks flooded into cities, in both the North and the South, but many states didn’t bother to update their apportionment of representatives to reflect that demographic shift.
Instead, states like Tennessee, Georgia and Alabama—but also Vermont and California—continued to allot far too few representatives to urban centers and far too many to rural areas. In Tennessee, for example, there was one representative for every 3,800 rural voters in the Eastern part of the state and one representative for every 70,000 voters in cities like Nashville and Memphis.
Supreme Court Decisions Advocate One Person, One Vote
The result was more political power was allotted for predominately white rural voters and less to city voters who were more likely to be Black.
But in a series of landmark decisions in the early 1960s, the U.S. Supreme Court tore down the widespread practice of malapportionment and raised in its place a new democratic principle: one person, one vote.
“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing: one person, one vote,” wrote Justice William O. Douglas in the majority opinion for Gray v. Sanders.
The Supreme Court outlined political and racial inequalities at the heart of malapportionment, a system which weighted one person’s vote over another’s. In Westberry v. Sanders, Chief Justice Earl Warren wrote that despite America’s demographic shift from rural to urban, “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.”
Wegman says that the Supreme Court justices were fully aware of how the Electoral College “blatantly violated” that very principle of representative government. Since even the least populous states were guaranteed three electors, the Electoral College was an imbalanced system where voters in smaller states wielded more political power than those in larger states.
Not only that, but the “winner-take-all” system—in which states award all of their electors to the candidate who wins the statewide popular vote—means that elections can be decided by voters in a handful of “swing states.” And voters who live in states that are dominated by another political party have effectively no voting power.
But as Wegman points out, the Court was powerless to overturn an electoral system that was literally written into the Constitution.
“The Court basically told Congress, ‘If you want to make the Electoral College come into line with “one person, one vote,” you have to do that through an Amendment,’” says Wegman.
So that’s exactly what Congress did.
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The Man Behind the Amendment
Birch Bayh was a young Democractic senator from Indiana first elected to Congress in 1963. When an older senator died, Bayh inherited what was thought of then as a “sleepy” assignment, says Wegman, chairmanship of the constitutional amendments subcommittee of the Senate Judiciary Committee.
No one could have predicted what would happen next. Fifty-three days after Bayh took his post on the subcommittee, President John F. Kennedy was assassinated in Dallas. Kennedy’s shocking death raised important questions about what the Constitution says, or doesn’t say, about presidential succession. Less than a month after the assassination, Bayh introduced a resolution to amend the Constitution to provide clear rules for who is in charge if the president and vice president are incapacitated or unable to do their jobs. Winning approval from the House and Senate, the 25th Amendment went into effect in 1967.
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Bayh’s skillful work garnering bipartisan support for the 25th Amendment caught the eye of President Lyndon Johnson, who tasked the young senator with addressing the Electoral College. Johnson didn’t want to trash the system completely, just to outlaw the existence of so-called “faithless electors.” Johnson was worried that pro-segregationist Southern Democrats would cast their electoral votes for a third-party candidate instead of the mainstream Democratic choice for president.
But once Bayh started holding committee hearings for this minor adjustment to the Electoral College, he came to believe that such a “small-dose” fix wasn’t enough. Trained as a lawyer, Bayh was aware of the seismic shift that the Supreme Court had signaled with its “one person, one vote” doctrine. For the first time in the nation’s history, Bayh said, “we have achieved the goal of universal suffrage regardless of race, religion and station in life,” and “we are witnessing a political development in our states where for the first time in decades, legislatures fully represent people.”
In a speech on the Senate floor, Bayh told his colleagues that trying to fix the Electoral College with tweaks and adjustments “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, because we are now in a new age.”
The only truly equitable solution, he argued, was a national popular vote—one person, one vote—so Bayh began the long process of winning legislative support for what he hoped would be his second constitutional amendment.
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Chaotic 1968 Election Exposes Issues
The Electoral College may have remained a niche political issue if not for the near-miss disaster that was the 1968 presidential election. As Johnson predicted, a pro-segregationist third-party candidate, the Alabama Governor George Wallace, came very close to derailing the election by siphoning away electoral votes from the major party candidates, Republican Richard Nixon and Democrat Hubert Humphrey.
If Wallace had succeeded in denying both Nixon and Humphrey a majority of the electoral votes, the election would have gone to the House of Representatives, which Wegman argued is even less democratic than the Electoral College. In the House, each state gets one vote for president, no matter if the state is tiny like Rhode Island or huge like California.
Furthermore, the House is required to choose between the three top electoral vote-getters, so Wallace would have remained in the running and could have used his position as a spoiler to demand concessions from the other parties. That’s exactly what happened in 1824, when John Quincy Adams struck a backroom deal with Henry Clay to take the presidency from Andrew Jackson, who had won the popular vote. Wallace’s political influence could have set back Civil Rights in the South for decades.
That didn’t happen, only because Nixon was able to eke out an electoral victory by the narrowest of margins. But even the possibility of throwing the election to the House was a wake-up call to those seeking to end the Electoral College.
“As Americans started to learn what a chaotic mess that would create, people freaked out,” says Wegman.
That’s the moment when Gallup registered 80 percent approval for ending the Electoral College and a wide variety of high-profile political groups threw their support behind Bayh’s amendment: the American Bar Association, the Chamber of Commerce, the AFL-CIO, the League of Women Voters and more.
After the House voted decisively to forward Bayh’s amendment to the Senate in September 1969, President Nixon added his own urgent call to action. “Unless the Senate follows the lead of the House, all opportunity for reform will be lost this year and possibly for years to come,” said Nixon.
Thurmond Wins Black and Jewish Lobby for Electoral College
It took another year for the Senate to vote on the proposed amendment to elect the president and vice president by a national popular vote. The delay was largely due to a drawn-out partisan battle over Nixon’s first two Supreme Court nominees. And when it was finally time to put Bayh’s amendment to a vote, a movement that had broad bi-partisan support a year earlier ran into a roadblock.
A handful of Southern lawmakers led by Strom Thurmond of South Carolina filibustered the bill, a parliamentary maneuver used to block a vote. Why were “Dixiecrats” so intent on keeping the Electoral College? Wegman argues racial subjugation was at play.
Southern states like South Carolina were still majority white in the late 1960s. The Electoral College, with its winner-take-all system, ensured that the white voting bloc would essentially cancel out the Black vote in the South.
“[Thurmond and his allies] knew that if Black voters could vote on equal terms with whites, which is what would happen during a popular vote, that advantage would disappear,” says Wegman. “For them, saving the electoral college was protecting their place in the racial hierarchy that their slaveholding ancestors had created.”
Thurmond knew that his Senate filibuster could be broken with a two-thirds vote, so he needed more supporters than just his fellow segregationists. What Thurmond did next was nothing short of “brilliant,” admits Wegman. He courted prominent Black and Jewish leaders in large cities like New York City.
While Blacks in the South had comparatively little political sway in presidential elections, the situation was the opposite up North. New York was perhaps the most important swing state at the time and you couldn’t take the state without winning the districts in New York City. If a candidate wanted to win those districts, they had to get the support of the Black and Jewish communities, two of the largest racial or ethnic minorities in the city. What that meant for Black and Jewish leaders in New York City is a seat at the table and a voice in local, state and national policymaking.
Thurmond sent personal telegrams to Black and Jewish leaders in New York, Chicago and Detroit, explaining that a direct popular vote would erode their political influence. If minority voting blocs could no longer ensure a winner-take-all electoral victory, they would risk losing their seat at the table.
To Bayh’s dismay, a group of NAACP lobbyists came into his Senate office in 1970 and asked him to drop the amendment.
“I said, ‘Look, I busted my tail to see that each of you and your constituencies got one person, one vote,’” recalled Bayh in a 2009 interview. “‘Now you’re telling me that if you have 1.01, you want to keep it? Get your rear ends out of my office and don’t come back.’”
But the lobbyists had made up their minds.
Bayh reintroduced an Electoral College amendment five more times over the next decade. The only time it came up for a full Senate vote was in 1979, when it got 51 votes, well shy of the 67-vote supermajority needed to pass a constitutional amendment.