People Used to Hate the Electoral College for Very Different Reasons

(Bloomberg Opinion) -- In 1969, the House of Representatives voted 338 to 70 to replace the Electoral College with a direct popular vote for president — well more than the two-thirds majority needed for such a constitutional amendment. If no candidate got more than 40 percent, according to the plan, a runoff between the top two vote-getters would ensue. The opponents were conservative Southern Democrats and a smattering of conservative Republicans. Republican President Richard Nixon announced his support for the measure after the vote.

In 1970, the Senate took up the legislation. It made it out of the Judiciary Committee despite a distinct lack of enthusiasm from Chairman James Eastland of Mississippi, another conservative Southern Democrat, and had the support of at least 62 senators, according to the vote counters working for its sponsor, Indiana Democrat Birch Bayh. But that wasn’t quite enough for a constitutional amendment or even, in those days, enough to invoke cloture and force a floor vote.

That was the closest the U.S. has come to getting rid of the Electoral College, but serious reform discussions continued from the 1950s through the 1970s. The debates from then are enlightening, in part because the arguments are so different from those of today. (If you want even more depth on this topic, I recommend a 2001 article by legal scholar Ann Althouse titled “Electoral College Reform: Déjà Vu.”) 

There was no clear partisan tilt to the debate then. This was partly because those were less partisan times, but also because it wasn’t clear which party benefited from the Electoral College. Political science graduate student Michael Nelson (now a professor at Rhodes College) did try to sort that out in 1974 and found that it had advantaged Republicans from 1932 through 1952, even though they only won one presidential election during that stretch, and the Democrats from 1956 through 1972. Their advantage in 1972 was the smallest of any that he measured, though, so even after his paper came out, it can’t have made leaders of either party confident about where the advantage would lie in the future. As my colleague Jonathan Bernstein wrote recently, it’s not clear where the advantage lies now, either, but with two elections in the past two decades in which the Democrat won the popular vote and lost the electoral vote, the view that it helps Republicans is understandably widely held.

The possibility of such a popular-vote/electoral-vote disagreement was also central to the case against the Electoral College in the 1960s and 1970s, but there were a couple of other major arguments then that you don’t hear so much now. One was that the Electoral College made it easier for a regional third-party candidate to prevent the major-party candidates from getting a majority and act as a kingmaker when the election was thrown to the House of Representatives. Segregationist Southerners tried this repeatedly starting in 1948 and never quite succeeded, but it still seemed like a real possibility in 1969 and 1970 — which was one reason conservative Southern Democrats fought against the direct vote in Congress.

Another argument against the Electoral College in those days was, counterintuitively, that it discriminates against small states. True, every state gets at least three Electoral College votes no matter how tiny its population, which in theory makes small-state votes count for more. But “by forcing the citizens of each state to vote as a bloc, the system increases the voting power of the residents of the larger states,” John F. Banzhaf III, now a professor at George Washington University Law School, argued in 1968. Because of this, Banzhaf estimated, one vote for president in New York state had 3.312 times the impact of a vote in the District of Columbia. And while Banzhaf’s was just one law review article full of somewhat incomprehensible calculations, the view that the Electoral College favored populous states and large urban areas really does seem to have been widely held.

A number of proposals to change the winner-take-all practices that created this advantage had already been floated in Congress in the 1950s. One of them would have awarded each state’s electoral votes proportionately based on the share of the state’s popular vote each candidate received. Another would have chosen electors by Senate seat and House district. A hybrid that assigned two of each state’s electoral votes to the winner of the popular vote in the state and allotted the rest proportionately won 48 yes votes to 37 noes in the U.S. Senate in 1956, but this fell well short of the two-thirds majority needed.

All of these changes would have decisively shifted the voting-clout advantage to residents of small states and, by Banzhaf’s reckoning, leave 93 percent to 95 percent of U.S. voters with less-than-average voting power. Direct election was by that measure clearly superior, since it gives every vote the same weight. The direct vote was rejected 66-17 in the Senate in 1956, but over the course of the 1960s it gained support, backed by a remarkable coalition of the American Bar Association, U.S. Chamber of Commerce, AFL-CIO, United Auto Workers and League of Women Voters. The main objections to it raised at the time were that:

  1. The Electoral College wasn’t broken. It often turned narrow popular vote majorities into resounding victories, thus lending added legitimacy to the presidency, while it hadn’t displayed the legitimacy-decreasing flaw of rejecting a popular-vote winner since 1888. (This last claim, in addition to seeming naive in retrospect, was probably factually wrong. As elections analyst Sean Trende nicely explained in 2012, an electoral quirk in Alabama resulted in John F. Kennedy being credited with a narrow popular-vote victory in 1960 even though the most reasonable accounting gave Nixon the popular-vote edge.)
  2. A direct vote with a 40 percent hurdle and subsequent runoff would improve the prospects of a third-party candidate with national appeal. It’s not entirely clear what would be wrong with this, given that such a candidate would either have to top 40 percent in the first round or win an outright majority in the runoff to become president, but it would definitely represent a change.
  3. A direct vote would nationalize the election, thus upending a state-centered primary and general-election process that had worked well for most of the country’s history.

This last one seems the most important. “The present system fortifies federalism by making the states the crucial political units in the election of the President,” political scientist Judith Best (now at the State University of New York at Cortland) wrote in a 1975 book. With direct election, she continued, “candidates would be liberated from their bonds of dependence on state and local party organizations. … They would be able to select their own constituencies with greater freedom, carving them out of the states, replacing geographic with issue-oriented constituencies.”

That sounds a lot like how presidential elections work now anyway, though, as cable TV news, social media, email, texting and even direct mail, along with billionaire donors and relaxed campaign-finance rules, allow candidates to reach out to voters nationally and bypass party organizations. In fact, it’s hard not to giggle when Best warns that

Demagogues, self-nominated, individualistic leaders of impermanent factions, charismatic leaders riding a single issue might replace the candidates presently recruited because of their moderation, experience, records of electoral success, and service to permanent party organizations.

While a lot of current opposition to the Electoral College of course stems from its role in electing a self-nominated, individualistic demagogue in 2016, such a person could come to office via direct election, too. One of the original motivations behind the Electoral College was to give its elite electors the power to reject a poor choice by the public. That role has long since been abandoned, but direct election wouldn’t do anything to restore it, and it might well, as Best warned, be even more conducive to maverick candidates.

The Electoral College defenders of the 1960s and 1970s did acknowledge — unlike many of its advocates today — that it was no longer playing the role envisioned for it at the Constitutional Convention in 1787. “The Electoral College was unquestionably intended to serve ends we no longer care to serve, and which it no longer serves,” the renowned Yale Law School constitutional scholar Alexander Bickel wrote in 1971. His aversion to abandoning it stemmed not from a belief in the immutable wisdom of the Founding Fathers but from what he called a “conservative attitude” toward government structure. “We do well to remain attached to institutions that are often the products more of accident than of design, or that no longer answer to their original plans, but that challenge our resilience and inventiveness in bending old arrangements to present purposes with no outward change.”

That’s … a lovely sentence, and possibly the best argument for keeping the Electoral College that I’ve seen. Is it good enough? I’m not too sure about that.

Fun fact, according to Wikipedia: Bayh was the only non-Founding Father to have authored two constitutional amendments (the 25th and 26th).

All these legislative details, and much of the other history in this column, are from the 1972 book "The Politics of Electoral College Reform," by Lawrence D. Longley and Alan G. Braun. If Bayh had been able to muster 67 votes in the Senate, the proposal would then have had to be ratified by at least 38 states to become part of the Constitution, but given the overwhelming public support for the change at the time, that seems like it could well have happened.

The 23rd Amendment, ratified in 1961, gives the District of Columbia the same number of electoral votes as the least populous state. In 1968 D.C. had more people than 11 of the states (now only two are less populous), so it was especially disadvantaged by the Electoral College. According to Banzhaf, New York voters' advantage over their peers in Alaska, then the least-populous state, was 1.8-to-1.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Justin Fox is a Bloomberg Opinion columnist covering business. He was the editorial director of Harvard Business Review and wrote for Time, Fortune and American Banker. He is the author of “The Myth of the Rational Market.”

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