The Electoral College Explained
It’s the Electoral College, not the national popular vote, that determines who wins the
presidency.
A man follows US elections results on a TV in a restaurant in Shanghai on November 4, 2020.Credit...Alex
Plavevski/EPA, via Shutterstock
Allyson Waller, The New York Times Online Edition, November 5, 2020.
It remains one of the most surprising facts about voting in the United States: While the
popular vote elects members of Congress, mayors, governors, state legislators and even
more obscure local officials, it does not determine the winner of the presidency, the
highest office in the land.
That important decision ultimately falls to the Electoral College. When Americans cast
their ballots, they are actually voting for a slate of electors appointed by their state’s
political parties who are pledged to support that party’s candidate. (They don’t always
do so.)
This leads to an intense focus on battleground states, as candidates look to boost their
electoral advantage by targeting states that can help them reach the needed 270 votes of
the 538 up for grabs. The Electoral College also inspires many what-if scenarios, some of
them more likely than others.
Where does the 2020 electoral count stand?
As of 9 p.m. Eastern on Nov. 5, Joseph R. Biden Jr. had 253 confirmed electoral votes
and needed 17 more to win. President Trump had 214 confirmed electoral votes and
needed 56 more to win. Mr. Biden was leading in the popular vote, with about 73.6
million votes. About 69.6 million votes had been counted for Mr. Trump.
Six states remained uncalled by The New York Times: Alaska (3 electoral votes), Arizona
(11), Georgia (16), Nevada (6), North Carolina (15) and Pennsylvania (20).
Can a president lose the popular vote but still win
the election?
Yes, and that is what happened in 2016: Although Hillary Clinton won the national
popular vote by almost 3 million votes, Donald Trump garnered almost 57 percent of
the electoral votes, enough to win the presidency.
The same thing happened in 2000. Although Al Gore won the popular vote, George W.
Bush earned more electoral votes after a contested Florida recount and a Supreme Court
decision.
And in 1888, Benjamin Harrison defeated the incumbent president, Grover Cleveland,
in the Electoral College, despite losing the popular vote. Cleveland ran again four years
later and won back the White House.
Other presidents who lost the popular vote but won the presidency include John Quincy
Adams and Rutherford B. Hayes in the elections of 1824 and 1876.
The House of Representatives picked Adams over Andrew Jackson, who won the
popular vote but only a plurality of the Electoral College. A special commission named
by the House chose Hayes over Samuel J. Tilden, after 20 electoral votes in Florida,
Louisiana and South Carolina were disputed.
The Electoral College has also awarded the presidency to candidates with a plurality of
the popular vote (under 50 percent) in a number of cases, notably Abraham Lincoln in
1860, John F. Kennedy in 1960 and Bill Clinton in 1992 and 1996.
What happens in a tie?
Because there is now an even number of electoral votes, a tie is feasible. If that happens
in the Electoral College, then the decision goes to the newly seated House of
Representatives, with each state voting as a unit.
Although it’s not detailed in the Constitution, each state delegation would vote on which
candidate to support as a group, with the plurality carrying the day, said Akhil Reed
Amar, a professor of law and political science at Yale University. If there is a tie vote in a
state’s delegation, the state’s vote would not count. A presidential candidate needs at
least 26 votes to win.
Currently, Republicans control 26 state delegations, while Democrats control 22.
Pennsylvania is tied between Republican and Democratic representatives, and Michigan
has seven Democrats, six Republicans and one independent. That could change on Nov.
3 of course, because all House seats are up for election.
The decision on vice president goes to the newly elected Senate, with each senator
casting a vote. Ultimately, any disputes about the procedure could land everything in the
Supreme Court.
What if electors break their pledge?
People call them “faithless electors.” In 2016, seven electors — 5 Democrats and 2
Republicans — broke their promises to vote for their party’s nominee, the most ever in
history. They voted for a variety of candidates not on the ballot: Bernie Sanders, Colin
Powell and Ron Paul, among others. It did not change the outcome.
Whether electors should be able to change their positions has been heavily debated, so
much so that the Supreme Court unanimously ruled in July that states may require
electors to abide by their promise to support a specific candidate.
Some scholars have said they do not wholeheartedly agree with the decision, arguing
that it endangers an elector’s freedom to make decisions they want and that electors are
usually picked for their loyalty to a candidate or party.
“They will do as promised if the candidates do a very good job vetting them and picking
people who are rock-solid,” Professor Amar said.
Thirty-three states and the District of Columbia have laws that require electors to vote
for their pledged candidate. Some states replace electors and cancel their votes if they
break their pledge.
Certain penalties exist in other states. In New Mexico, electors can be charged with a
felony if they abandon their pledge, and in Oklahoma a faithless elector could face a
misdemeanor charge.
How did this system evolve?
The Electoral College was born at the 1787 Constitutional Convention in Philadelphia.
The nation’s founders hoped to quell the formation of powerful factions and political
parties, and they wanted a mechanism that did not rely solely on popular majorities or
Congress. Despite the name, it is not a college in the modern educational sense, but
refers to a collegium or group of colleagues.
The system had some unusual results from the start, as evident in the election of 1800, a
tie in which Thomas Jefferson and Aaron Burr received an equal number of electoral
votes. Congress broke the tie, and Jefferson became president and Burr became vice
president. (Until the ratification of the 12th Amendment in 1804, the candidate with the
second-highest number of electoral votes became vice president.)
Today, electors meet in their respective states on the first Monday after the second
Wednesday of December — Dec. 14 this year — to cast separate ballots for president and
vice president, with the candidates who receive a majority of votes being elected.
Electors are chosen every four years in the months leading up to Election Day by their
respective state’s political parties. Processes vary from state to state, with some choosing
electors during state Republican and Democratic conventions. Some states list electors’
names on the general election ballot.
The process of choosing electors can be an “insider’s game,” said Kimberly Wehle, a
professor at the University of Baltimore and the author of “What You Need to Know
About Voting and Why.” They are often state legislators, party leaders or donors, she
said.
How many electoral votes does it take to win?
The important number is 270. A total of 538 electoral votes are in play across all 50
states and Washington, D.C. The total number of electoral votes assigned to each state
varies depending on population, but each state has at least three, and the District of
Columbia has had three electors since 1961.
Are all states winner-take-all?
Most are, and it helps to think of voting on a state-by-state basis, Professor Amar said.
“It’s just like in tennis,” he said. “It’s how many sets you win and not how many games
or points you win. You have to win the set, and in our system, you have to win the state.”
Two exceptions are Maine and Nebraska, which rely on congressional districts to divvy
up electoral votes. The winner of the state’s popular vote gets two electoral votes, and
one vote is awarded to the winner of the popular vote in each congressional district.
There are arguments that the states with smaller populations are overrepresented in the
Electoral College, because every state gets at least 3 electors regardless of population. In
a stark example, sparsely populated Wyoming has three votes and a population of about
580,000, giving its individual voters far more clout in the election than their millions of
counterparts in densely populated states like Florida, California and New York. And the
American citizens who live in territories like Puerto Rico, Guam and the U.S. Virgin
Islands are not represented by any electors.
“When you talk about the Electoral College shaping the election, it shapes the election
all the time because it puts the focus on certain states and not others,” said Alexander
Keyssar, a professor of history and social policy at Harvard University.
Will the system ever change?
For years there have been debates about abolishing the Electoral College entirely, with
the 2016 election bringing the debate back to the surface. It was even a talking point
among 2020 Democratic presidential candidates.
The idea has public support, but faces a partisan divide, since Republicans currently
benefit from the electoral clout of less populous, rural states.
Gallup reports 61 percent of Americans support abolishing the Electoral College in favor
of the popular vote. However, that support diverges widely based on political parties,
with support from 89 percent of Democrats and only 23 percent of Republicans.
One route would be a constitutional amendment, which would require two-thirds
approval from both the House and Senate and ratification by the states, or a
constitutional convention called by two-thirds of the state legislatures.
Some hope to reduce the Electoral College’s importance without an amendment. Fifteen
states and the District of Columbia, which together control 196 electoral votes, have
signed on to an interstate compact in which they pledge to grant their votes to the
winner of the national popular vote. (Voters in one of those states, Colorado, on Nov. 3
backed membership in the compact after opponents of the measure collected enough
signatures to put the law on the ballot as a referendum.) The local laws would take effect
only once the compact has enough states to total 270 electoral votes.
Lastly, an election-related case could find its way to the Supreme Court, which would
lend greater importance to the judicial makeup of the court, Professor Wehle said.
“It only takes five people with life tenure to actually amend this Constitution through a
judicial opinion,” she said.
#######
How the Voting Will Work When the
Electors Gather
Most states are offering livestreams to watch the proceedings, including battlegrounds
won by President-elect Joseph R. Biden Jr. After Monday’s vote, the process moves to
Congress.
Stopping President-elect Joseph R. Biden Jr. from assuming office remains a long-shot strategy for Republicans.
Credit...Hilary Swift for The New York Times
Isabella Grullón Paz and Lisa Lerer, The New York Times National Edition,
December 14, 2020, A14.
The members of the Electoral College are gathering in their respective states on Monday
to cast their official ballots for president. Ordinarily, the process is little more than a
formal duty to rubber-stamp the results of the November election.
Not this year.
For weeks, President Trump and his allies have pressured Republican officials to ignore
the popular vote in close-fought states won by President-elect Joseph R. Biden Jr. and
appoint their own electors who would favor Mr. Trump. They have also asked courts to
hand victory to the president in states he lost.
But judges and Republican state lawmakers have shown little appetite for subverting the
democratic process, and the electors have remained. As they vote on Monday, Mr.
Trump is essentially guaranteed to end the day as he began it: a one-term president.
Here’s more on how the voting will work, and on the next steps in the process:
Can I watch the Electoral College vote?
Yes — most states offer livestreams to watch the proceedings, including crucial
battlegrounds won by Mr. Biden. Here are links for four of
them: Michigan, Wisconsin, Pennsylvania and Georgia.
The electors don’t meet in one place or at one time; New Hampshire, Vermont, Indiana
and Tennessee were the first to gather to vote at 10 a.m. Eastern. Proceedings in
Georgia, Arizona and Pennsylvania start at noon.
Two crucial battleground states are voting in the afternoon: Wisconsin electors will
gather at 1 p.m. Eastern and Michigan will be voting at 2 p.m.
California, the crucial state for Mr. Biden to achieve 270 Electoral College votes, meets
at 5 p.m. Eastern.
Electors for each state and the District of Columbia meet at a location chosen by the
state legislature, most often the state’s capitol. The Delaware electors are meeting in a
gym. Nevada is the only state holding its meeting virtually this year.
How does the Electoral College voting work?
The electors cast their ballots for president and vice president via paper ballot. Thirtythree
states and the District of Columbia legally require their electors to choose whoever
won the state’s popular vote, so there should be no surprises there. The other 17 states
don’t “bind” their electors, meaning they can vote for whomever they choose.
The electors were chosen by state parties (if Mr. Biden won a state, for example, the
Democrats’ slate of electors casts the votes). Typically, electors are political activists,
officials, donors and people with close relationships to the candidates — meaning they
are very likely to vote for the candidate they pledged to support. In 2016, seven electors
lodged protest votes for someone other than their party’s candidate. But the likelihood
of “faithless electors” switching sides and handing the election to Mr. Trump is
essentially zero.
After the electors cast their ballots, the votes are counted and the electors sign
certificates showing the results. These are paired with certificates from the governor’s
office showing the state’s vote totals. The certificates are sent to Vice President Mike
Pence, in his capacity as president of the Senate; the Office of the Federal Register; the
secretary of state of the respective state; and the chief judge of the Federal District Court
where the electors meet.
What happens next?
Congress officially counts the votes in a joint session held in the House chamber on Jan.
6, with Mr. Pence presiding. Mr. Pence opens the certificates — in alphabetical order by
state — and presents them to four “tellers,” two from the House and two from the
Senate, who count the votes. When Mr. Biden reaches a majority with 270 votes, Mr.
Pence announces the result.
The proceeding is strictly prescribed by federal law, down to where various politicians
sit in the chamber. (Mr. Pence gets the speaker’s chair, Speaker Nancy Pelosi sits to his
left, and the “tellers” sit at the clerks’ desks.)
The session cannot be ended until the count is complete and the result publicly declared.
At this point, the election is officially decided. The only remaining task is the
inauguration on Jan. 20.
Which Congress runs the process?
Since the new members will be sworn in on Jan. 3, the next Congress will conduct this
joint session. Democrats will hold control of the House. And Republicans will control
the Senate, regardless of the results of the Georgia runoff elections on Jan. 5, because
Mr. Pence will still be in office to act as the tiebreaking vote if the chamber is split 50 to
50.
Can members of Congress block the results?
There is no debate permitted during the counting of the electoral votes. But after the
result is read, members of Congress get one opportunity to lodge their concerns.
Any objection to a state’s results must be made in writing and be signed by at least one
senator and one member of the House. The two chambers would then separate to debate
the objection. Each member of Congress can speak only once — for five minutes — and
after two hours the debate is cut off. Each body then votes on whether to reject the
state’s results.
Since the Electoral Count Act was passed in 1887, there have been just two instances of
congressional objections, in 1969 and 2005. Neither passed either the House or the
Senate.
What’s the likelihood of Congress changing the
outcome?
Stopping Mr. Biden from assuming office remains a long-shot strategy for Republicans.
For an objection to stand, it must pass both houses of Congress by a simple majority. If
the vote followed party lines, Republicans could not block Mr. Biden’s victory.
Democrats control the House, so an objection would already be doomed there. In the
Senate, Democrats would need to pick off only a couple of Republicans to side with them
to vote down the objection. A number of Republican senators have declared Mr. Biden
the president-elect.
With some Trump allies already planning objections, the congressional session is likely
to make for good political theater. But the process has little chance of changing the
outcome of the election.
#######
Electoral College Vote Begins Across
the Country
Electors have started to gather across the country to cast their votes for president, and
the winner is not in doubt: Joseph R. Biden Jr. will be officially declared the president-
elect.
The New York Times Online, November 14, 2020.
The Electoral College begins vote that will
formally designate Biden the president-elect.
North Carolina Electoral College representatives signing the Certificates of Vote in the State Capitol building in Raleigh, N.C., in
2016. Credit...Jonathan Drake/Reuters
The Electoral College vote started on Monday morning in states across the country, in a
move that will officially designate Joseph R. Biden Jr. as the president-elect and pass a
crucial milestone that President Trump has sought to upend with legal challenges and
political pressure to overturn the results of a popular election.
“It’s not just out of tradition but to show folks, especially now more than ever, our
system works,” said Gov. Chris Sununu of New Hampshire, a Republican, in opening
remarks before the state’s four electors cast their ballots for Mr. Biden.
New Hampshire was one of a handful of states, also including Vermont and Tennessee,
where electors gathered around 10 a.m. Eastern. Voting will continue throughout the
day, with the schedule determined by individual states. California, the state with the
most electors will most likely push Mr. Biden past the 270-vote threshold needed to win
the presidency when it votes at 5 p.m. Eastern.
Though the meeting of the Electoral College is an important moment in American
democracy, it is rarely one that becomes a major political event. But as the president has
continued his quixotic campaign to subvert the election, the vote on Monday has loomed
as an important deadline, made all the more unusual because there was no state in
which the vote was close enough to leave its result in doubt.
Despite the definitive defeat in the Electoral College, Mr. Trump has remained defiant,
spending his weekend attacking the Supreme Court for rejecting a Texas lawsuit against
four battleground states and issuing more baseless accusations about the election from
his Twitter account. The president has shown no indication he intends to concede the
election.
The increasingly caustic remarks from the president have kept tensions high, with some
states providing security for the sites where the electors will convene and protests
expected in some swing states that Mr. Trump has targeted in recent weeks.
The vote will largely remove any cover for Republicans in Congress who have refused to
acknowledge Mr. Biden as the president-elect. In providing Mr. Trump the room to
dispute his loss, Republicans in Congress presented the Electoral College vote as the
new marker for when a presidential victory should be recognized.
“Everything before Monday is really a projection,” Senator Lamar Alexander of
Tennessee told Chuck Todd on NBC’s “Meet the Press” on Sunday. “If the president
loses, and it appears that he will when the electors vote, he should put the country first,
take pride in his accomplishments, congratulate Joe Biden and help him off to a good
start.”
The Monday vote was not in doubt. But Mr. Alexander’s appearance on Sunday showed
the party’s tortured position as it seeks to accommodate the anti-democratic push of its
standard-bearer.
Part of that push had been a legally dubious effort to force Republican-controlled state
legislatures in states Mr. Trump lost to ignore the popular vote and appoint their own
slate of electors.
But in court case after court case, Mr. Trump was dealt loss after loss, often coupled
with withering opinions decrying the effort as meritless, and electors met on Monday
with no major court case lingering over the day.
— Nick Corasaniti and Jim Rutenberg
Here’s what to expect from the Electoral College
today.
A watch party on election night in Houston. Credit...Ryan Christopher Jones for The New York Times
The members of the Electoral College are gathering in their respective states today to
cast their official ballots for president. Here’s more on how the voting will work, and on
the next steps in the process:
Can I watch the Electoral College vote?
Yes — most states offer livestreams to watch the proceedings, including crucial
battlegrounds won by President-elect Joseph R. Biden Jr. Here are links for four of
them: Michigan, Wisconsin, Pennsylvania and Georgia.
The electors don’t meet in one place or at the same time; some start at 10 a.m. Eastern,
and most vote in the afternoon.
How does the Electoral College voting work?
The electors cast their ballots for president and vice president via paper ballot. Thirtythree
states and the District of Columbia legally require their electors to choose whoever
won the state’s popular vote, so there should be no surprises there. The other 17 states
don’t “bind” their electors, meaning they can vote for whomever they choose. But the
likelihood of “faithless electors” switching sides and handing the election to President
Trump is essentially zero.
After the votes are counted, the electors sign certificates showing the results. These are
paired with certificates from the governor’s office showing the state’s vote totals. The
certificates are sent to Vice President Mike Pence, in his capacity as president of the
Senate; the Office of the Federal Register; the secretary of state of the respective state;
and the chief judge of the Federal District Court where the electors meet.
What happens next?
Congress officially counts the votes in a joint session held in the House chamber on Jan.
6, with Mr. Pence presiding. When Mr. Biden reaches a majority with 270 votes, Mr.
Pence announces the result.
The session cannot be ended until the count is complete and the result publicly declared.
At this point, the election is officially decided. The only remaining task is the
inauguration on Jan. 20.
Can members of Congress block the results?
There is no debate permitted during the counting of the electoral votes. But after the
result is read, members of Congress get one opportunity to lodge their concerns.
Any objection to a state’s results must be made in writing and be signed by at least one
senator and one member of the House. The two chambers would then separate to debate
the objection. Each member of Congress can speak only once — for five minutes — and
after two hours the debate is cut off. Each body then votes on whether to reject the
state’s results.
What’s the likelihood of Congress changing the outcome?
Stopping Mr. Biden from assuming office remains a long-shot strategy for Republicans.
For an objection to stand, it must pass both houses of Congress by a simple majority. If
the vote followed party lines, Republicans could not block Mr. Biden’s victory.
— Isabella Grullón Paz and Lisa Lerer
Opinion
The Filibuster That Saved the
Electoral College
Like other Senate blockades of the civil rights era, it was about preserving white
supremacy.
Jesse Wegman, The New York Times Online Edition, February 8, 2021.
Mr. Wegman is a member of the editorial board.
Senator Birch Bayh Credit...Illustration by The New York Times; photograph by Henry Griffin/Associated Press
Debates over the filibuster tend to get theoretical fast. It’s there to protect minority
interests, defenders say. Without it, majorities will run rampant. Lost in the back-and-
forth is the reality of how the tool has been used so often in practice: to delay, if not
destroy, legislation that promotes racial equality.
From the end of Reconstruction until the passage of the Civil Rights Act of 1964, the
only bills killed by filibuster were those dealing with civil rights.
For all the invocations of high-minded principles, the pattern is unmistakable. Again
and again, white Southern senators, afraid of losing their accustomed seat atop the
racial hierarchy, beat back progress with the blunt instrument of unlimited debate, or at
least the threat of it. They nearly took down the Civil Rights Act, too. That failure
ushered in the nation’s first true experiment in multiracial democracy. But the
Southerners still had the filibuster, and soon they had their revenge.
In the late 1960s, the country was on the verge of dumping the Electoral College and
switching to a national popular vote for president. A relentless campaign by reformers in
Congress had succeeded in convincing 80 percent of Americans to back a direct vote.
National organizations with little else in common — including the American Bar
Association, the Chamber of Commerce and the League of Women Voters — were on
board.
The effort got a last-minute boost from the chaotic 1968 election, in which the
segregationist third-party candidate George Wallace nearly deadlocked the race and
forced it into the House of Representatives. Americans everywhere agreed that this 200year-old
relic was going to destroy the country.
In September 1969, the House voted overwhelmingly, 338 to 70, to approve a
constitutional amendment abolishing the Electoral College. Surveys suggested as many
as 30 states were ready to ratify, and several more appeared to be on the cusp.
Even the most stalwart opponents of a popular vote had resigned themselves to the
likelihood that this was an idea whose time had come. The amendment stood an
“excellent chance” in the Senate and a “better-than-even chance” in the states, wrote two
conservatives in The New York Times Magazine.
“We were in a moment,” Jay Berman, a top legislative staff member for Senator Birch
Bayh of Indiana, told me. Mr. Bayh had been pushing for a popular vote since 1966,
shortly after the passage of the Civil Rights and Voting Rights Acts had ended the Jim
Crow era and pulled America closer than it had ever been to a truly representative
democracy. Electing the president directly was the next logical step in that progression.
“It’s very, very difficult to deal with institutional, transformative issues like this. And we
had that moment,” Mr. Berman said. “That’s what makes it so galling.”
The “it” was the unceremonious collapse of the popular-vote amendment, which died on
the Senate floor in late September 1970.
A lot happened in the year after it sailed through the House, including two failed
Supreme Court nominations by President Richard Nixon, that delayed and distracted
senators. But in the end, the amendment was killed off for good by a filibuster led by
three Southerners — Strom Thurmond of South Carolina, Sam Ervin of North Carolina
and James Eastland of Mississippi, the long-serving chairman of the Judiciary
Committee and one of the most powerful men in the Senate.
All three men were avowed segregationists, and the descendants of slaveholders. They
had been battling any move toward racial equality for years. In 1957, Senator Thurmond
filibustered a civil rights bill for more than 24 hours — a feat for which he prepared like
a long-distance runner, and which no one has since matched. The law passed in the end,
as did the landmark bills of the mid-1960s. Mr. Thurmond and the other racists were
determined not to fail again.
“There were no mysteries about what the Southern bloc intended to do. For them, this
was a way-of-life issue,” Mr. Berman said. When I asked him specifically what way of
life, he said, “The fact that Black people could vote, and vote without intimidation.”
As the Southerners were well aware, the Electoral College was a bulwark of white
supremacy. It protected white dominance throughout the South, where Black voters who
were no longer disenfranchised by Jim Crow could still be rendered invisible by state
winner-take-all laws. Under these laws, the white majority in states like Alabama, South
Carolina and Georgia always got its way. If the nation switched to a popular vote, each
Black voter in those states would have just as much say as a white voter in electing the
president.
“This was going to change the whole political structure in the South,” Mr. Berman told
me. Once all votes were equal, it “would be opening a door to a process that they had no
control over.”
The racial subtext went largely unspoken at the time. Instead, as the historian Alex
Keyssar documents in his comprehensive new history of the Electoral College, the
defenders of the status quo trotted out familiar if unfounded claims about the dangers of
the popular vote: It would destroy America’s two-party system; it would undermine
federalism; it would lead to widespread fraud; and so on. They accused those who
argued that the president should be the person who wins the most votes of a “naïve”
embrace of “mathematical purity.”
But what was going on was obvious enough, especially after 1968, when the Electoral
College had nearly allowed an unrepentant racist to hijack the presidential election.
“You didn’t need a mastermind to say, ‘Hey, what’s behind this?’” Mr. Berman said. “It
was there. It was the elephant in the room.”
Throughout 1970, as Mr. Bayh struggled to bring the amendment to a vote, the threat of
a filibuster lurked. He tried to fight fire with fire, threatening his own filibuster of Mr.
Nixon’s nomination of G. Harrold Carswell to the Supreme Court. The nomination
eventually failed, but Mr. Bayh had lost precious time.
The Southerners managed to delay the amendment with various tactics throughout the
summer. By September, those tactics had been exhausted, and the filibuster began.
Mr. Bayh needed 67 votes to end the filibuster, known as invoking cloture. (A few years
later, the Senate dropped the threshold for cloture to 60.) As September wore on, he was
having trouble getting out of the mid-50s.
This double-supermajority hurdle infuriated Mr. Bayh and his staff. “We already needed
a two-thirds vote!” Mr. Berman said, referring to the requirement for all constitutional
amendments. “This was like, in football, a 15-yard penalty for piling on.” Only there was
no penalty.
Still, Mr. Bayh was confident that if the amendment could get a full floor vote, it would
pass. The dispute over the Electoral College wasn’t partisan, as it is today. “The
paramount issue,” said Senator Howard Baker, the Tennessee Republican, “is the
fundamental right of every citizen to cast a vote that has no more weight nor no less
weight than that of any other citizen.”
On Sept. 29, 1970, the Senate voted on whether to end the filibuster and move forward
with the amendment. The amendment’s supporters fell five votes short. No effort to
switch to a national popular vote has come anywhere near as close since.
“Boiled down to the essentials,” Mr. Keyssar writes, “reform was blocked by a coalition
of Southern Democrats and small-state conservative Republicans. The 34 senators who
voted nay came from states with 27 percent of the nation’s population.”
Tom Wicker, the New York Times columnist, called the Electoral College filibuster “a
blatant case of a little band of willful men who fear, and are therefore thwarting, both
popular will and the political process that they extol.”
For Senator Bayh, who died in 2019 at 91, “it was the greatest disappointment of his
life,” Mr. Berman told me.
Mr. Berman rejects the idea that the filibuster has ever been necessary to protect the
interests of the minority. “Minorities are safeguarded in the very institution of the
Senate,” he said. “The filibuster is like whipped cream — a lot of calories but no
substance. All it does is stop things.”
Jesse Wegman is a member of the editorial board, where he has written about the Supreme Court
and national legal affairs since 2013. He is the author of “Let the People Pick the President: The
Case for Abolishing the Electoral College.” @jessewegman