How the Electoral College Upends the Popular Vote, and What’s Needed to Abolish It

Our arcane – some say undemocratic – system dates back to the nation’s founding.

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How is it that the office of United States president, the highest in the land, is one where the person who gets the most votes can still lose the election? Fifty years ago, Congress came close to changing that process. Why did the effort fail?

Twice in the last 20 years (in 2016 with President Trump's victory, and in 2000 with President George W. Bush), and in three additional elections, candidates gained the office by winning enough electoral college votes (270 or more) despite losing the popular vote. This arcane – some say undemocratic – system dates back to the nation's founding.

In 1787, during the Constitutional Convention, most founding fathers favored Congress choosing the president. Election by the populace was favored by James Madison but was seen as tempting mob rule. According to the historian Alexander Keyssar, the decision had not been made as delegates began leaving the convention; even president-to-be George Washington had gone fishing. So something called “Committee on Postponed Parts” came up with the electoral college as a compromise.

But some scholars, including Yale Law's Akhil Reed Amar, argue that the electoral college sprang from “devilish origins,” the wishes of slave-owning states. “In a direct election system, the South would have lost every time because a huge percentage of its population was slaves, and slaves couldn’t vote,” he said in an interview with Vox.

Abolishing the electoral college would take a constitutional amendment, a big hurdle.

(Remember the debate over an Equal Rights Amendment?) After a lopsided 1968 election in which Richard Nixon won 301 electoral votes but captured the popular vote by less than 1 percent), Senator Birch Bayh (D-Indiana) pushed for one.

The amendment had bipartisan support in Congress and, according to polls, from 80 percent of Americans. But Western and Southern senators like Strom Thurmond (R-South Carolina) argued that it “ignores the rights of little states,” and a filibuster stopped it in 1970.

Senator Bayh kept trying, even as some Black leaders joined segregationist senators in opposition: “Take away the electoral college and the importance of being Black melts away,” Vernon Jordan, president of the National Urban League, later wrote. “Blacks, instead of being crucial to victory in major states, simply become 10 percent of the electorate.”

Senator Bayh’s efforts to abolish the electoral college ended in defeat in 1979. (He also had his hand in two other constitutional amendments, as a co-sponsor of the E.R.A. and as sponsor of the 25th Amendment, which says that if a President is unable to do his job, the Vice President may assume the role.)

Today, some states are trying a new approach on the electoral college, passing laws that pledge all their electoral votes to whoever wins the national popular vote.

Karen M. Sughrue contributed research and reporting. Follow Retro Report on Medium, subscribe to our newsletter and follow us on Twitter @RetroReport.