2020 Democrats Are Calling for Abolishing the Electoral College—It Nearly Happened a Few Decades Ago

electoral college protest amendment
A protestor holds an anti-Electoral College sign outside Independence Hall on November 13, 2016, in Philadelphia, Pennsylvania. Decades ago, an amendment that would've done away with the Electoral College came close to passing through the Senate. Mark Makela/Getty Images

We're now years removed from Donald Trump losing the popular vote by nearly 3 million votes but still cruising into the White House via the Electoral College.

Now, with the 2020 election rising into view on the horizon, a number of the leading Democratic presidential hopefuls are calling for doing away with the Electoral College altogether.

But many Republicans treat the idea as a nonstarter. Florida Senator Marco Rubio said this week, for instance, that getting rid of the Electoral College is about "diminishing the electoral power of what liberals arrogantly call the 'flyover states'" and that the "same people always preaching about our 'constitutional norms' want to change the ones they find inconvenient."

But it wasn't all that long ago that our country—through a bipartisan effort among lawmakers—nearly ditched the Electoral College. The Bayh-Celler amendment nearly did it, beginning in 1969 before flaming out in 1971.

"This is a lost piece of history," Alexander Keyssar, the Matthew W. Stirling, Jr. Professor of History and Social Policy at Harvard, told Newsweek.

Keyssar—the author of the forthcoming book Why Do We Still Have the Electoral College?—said it was "very close" to getting passed, meaning the president-vice president duo would have then been elected via national popular vote, provided that the duo earned at least 40 percent of the total vote. It would have been a remarkable shift. And it would have, no doubt, changed the course of American history.

The amendment breezed through the House Judiciary Committee and the House of Representatives, where it garnered about 80 percent support. The Senate Judiciary Committee passed it through as well. But, spearheaded by Democratic Indiana Senator Birch Bayh, the effort never secured enough votes to pass through the full Senate and go to the states for ratification.

Still, by modern standards, that is incredibly close for an idea shunned by a number of current-day lawmakers. How did it happen?

Keyssar points to a few factors. Starting in the late 1940's and running through the '60s, there was growing dissatisfaction with the Electoral College in Congress. There was also, at that time, a general surge in successful efforts to buttress voting rights. And the lawmakers on Congressional committees lined up fortuitously for the effort to kill-off the Electoral College. Then there was the spark of the 1968 presidential election, won by Republican Richard Nixon.

Nixon won the popular vote by roughly 800,000 votes but outpaced Democrat Hubert Humphrey by a hearty 110 electoral votes—that happened, in part, because pro-segregation, third-party candidate George Wallace picked up 46 electoral votes in the South.

"Wallace threatened to become a kingmaker," Keyssar said. "Nobody thought he could win—but he could win enough states that he could decide who won the election. And that spooked people."

While there was broad support for change—even President Nixon, at least in theory, signed on with the amendment—the amendment stalled out in the Senate. That was largely due to opposition from southern senators. That included anti-civil-rights South Carolina Republican Strom Thurmond, who helped lead the filibuster against the amendment.

"We were able to get it out of the House by a large vote," Bayh said in 2011 interview with Fordham Law Review (Bayh died just last week). "I had sixty Senator sponsors for it in the Senate, and I figured I would get the other six when the debate got going. Then the most unlikely of all experiences, I think, that have happened to me while I was in the Senate—Strom Thurmond, who was anti-Semitic and anti-black along with everything else, was also anti-direct popular vote."

Birch Bayh, the liberal former senator from Indiana, died at 91. He championed Title IX, which protects women from discrimination in education. https://t.co/RVuPlPcHcc

— The New York Times (@nytimes) March 14, 2019

Thurmond worked to convince lawmakers from small states, as well as black and Jewish leaders that their groups would lose power.

"He played on something that always frightened me about direct popular vote—despite the small states feeling they had the advantage, the large states were the ones that really had the advantage," Bayh said in the interview.

The amendment never got the chance to go to the states, where polling suggested it had enough support in at least 30 of the necessary 38 states to ratify.

"I lost four or five votes in the liberal section," Bayh reflected to Fordham. "I think we ended up with maybe fifty-two or fifty-three votes, fifty-five maybe. I forget what it was. I didn't even have my sixty."

And when push came to shove, when support was fleeting, Nixon's support was tepid. He could have pulled his weight around as president. He did not.

Dr. Gregory Cumming, staff historian at the Richard Nixon Presidential Library, couldn't turn up any mention of the amendment in Nixon's writings from the time. "Whatever he was doing was lukewarm at best," he told Newsweek.

And, Cumming noted, Bayh had helped lead the fight to deny Judge Clement Haynsworth, a 1969 Nixon nominee for a Supreme Court seat.

"There are quite a bit of accounts that Nixon was not happy with Birch Bayh essentially being the focus of the anti-Haynsworth movement in the Senate," Cumming said.

It would stand to reason that Nixon wouldn't love pushing for an amendment backed by a senator who had worked to deny his nominee the position.

richard nixon
Richard Nixon is pictured giving a press conference. Keystone/Getty Images

So, what's happened in the few decades since the Bayh-Celler Amendment—why is abolishing the Electoral College so divisive now?

Keyssar had a blunt response.

"The short answer—but it's a powerful answer—is that the Republican Party, starting really in the late 1970s and into the 1980s, decided that the Electoral College advantaged them," he said. "And from the early 1980s until the present, Electoral College reform became a partisan issue like it was never before."

The Bayh-Celler Amendment did have prominent Republican supporters, which would likely be much harder to do now. The vast majority of Americans overall, however, have for decades supported moving to a national popular vote over the Electoral College—that is, before a stark shift among Republicans after Trump won in '16. Still, polls typically show a majority of Americans would prefer moving toward a national popular vote.

Democratic Massachusetts Senator Elizabeth Warren, a presidential hopeful, recently garnered loud applause at a town hall by saying: "Every vote matters. And the way we can make that happen is that we can have national voting and that means get rid of the Electoral College."

But calling for reform and it actually happening are different things. Keyssar said advocates for doing away with the Electoral College can take a couple of lessons from the Bayh–Celler amendment.

"It teaches us two things," he said. "One is that we shouldn't despair. Reform may be possible. And the second is that it will be very difficult to put together a coalition that would support an amendment."