What Would Have Been the 26th Amendment

Photo By Henry Griffin / AP file
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The Electoral College is an institution that picks the president. While the institution is supposed to reflect the public’s vote, there have been several elections where the wrong winner becomes president. The strife between those who favor direct power of the people and those who do not want to change one of the oldest institutions in the country is a direct result of the Electoral College. Out of the 700 attempts to abolish the Electoral College, only one has passed the House and made it to the Senate. Senator Birch Bayh, a true conqueror of the Constitution, authored the proposed Amendment. Seventeen amendments have been ratified since 1791 after the original Bill of Rights. Amending the Constitution is extremely difficult: it must pass the House and Senate by two-thirds, and three-fourths of the states must ratify it. The odds of a single person changing the Constitution once are low, and to do that more than once is nearly unattainable– not for Bayh. 

Bayh is the only non-Founder to have authored more than one constitutional Amendment, and the only other person to share this accolade is James Madison. What would have been the 26th Amendment- abolishing the Electoral College and replacing it with a national popular vote- was filibustered in the Senate by a mere 5 votes. Leading the charge was a group of southern segregationist Senators holding onto the racist notions of the Electoral College benefitting the white South. 

President Lyndon Johnson asked Senator Birch Bayh to tweak the Electoral College after his speedy success with the 25th Amendment as a freshman senator. The Electoral College is a formal body composed of 538 electors, separate from Congress, whose primary purpose is to elect the president. Their members determine the allocation of electors for each state in the lower House plus two Senators. Johnson envisioned an electoral college without faithless electors, i.e., electors who vote for a candidate they did not pledge to vote for. His reasoning arose from fear of southern segregationist Democrats voting for a third-party candidate instead of the Democratic party candidate.

In February 1966, Bayh held senate hearings to gain perspectives from political scientists, mathematicians, constitutional scholars, and others on the Electoral College’s problems. These hearings gave him a larger picture of the problem, and his mind changed. On May 18, 1966, Bayh gave a speech articulating the College’s conflictual nature with democracy, that it perpetuates the wrong winner, and how a direct vote for the President is the solution. Bayh believed the president “should be elected directly by the people, for it is the people of the United States to whom he is responsible.”

Abolishing the Electoral College largely remained a scholarly topic until the 1968 presidential election, which the House of Representatives nearly decided. Alabama governor and segregationist George Wallace ran as a third-party southern Democrat and almost received enough electoral votes to create a contingent election: if no candidate gets the 270 electoral votes needed to win, each state in the House casts one vote for the President. 

The public became informed of the process of the Electoral College works, and Bayh’s proposal gained overwhelming bipartisan support. On September 18, 1969, the House approved the Amendment with flying colors: 339-70, far more than the two-thirds majority required. It is the only Amendment abolishing the Electoral College to have passed the House. 

And then, death. The Amendment was killed in the Senate, with the main culprit being Senator Strom Thurmond, a transparent segregationist, holding the record for the longest filibuster speech, “24 hours and 18 minutes against the Civil Rights Act of 1957.” Segregationist senators wanted to save the Electoral College because of the residual effects of slavery on the institution. In the late 1960’s, Southern states were still primarily white, meaning that a block of white votes could cancel out black Americans’ votes. It was in their best interest to keep the Electoral College. If the Southern Democrats wanted to prevent policy being passed by the ideologically different Northern Democrat candidate, who usually favored minority views, then they must maintain their powerful electoral regional block. 

What is strange about their efforts is that they could not have killed the amendment without the help of prominent black and Jewish leaders in northern cities. Why is this the case?

First, we must consider that the most prominent advocates of the Electoral College are people who believe the institution is politically beneficial to them. In the mid-twentieth century, black Americans and Jews were most benefited. They resided with other minorities in large cities and found a political platform to have their voices heard. 

This is the irony of black Americans moving from the rural South to northern cities. Staying in the South is the disenfranchisement of minority votes. Those votes from cities like New York and Detroit could sometimes swing the state towards Democrats because larger states have more electors. They had much more power over the South. 

Thurmond specifically used this idea to send telegrams to those prominent black and Jewish leaders in 1970, explaining how a direct vote would reduce the voting power that 100 of them had in the North to that of a single man in Texas. This sent lobbying groups to Democratic leaders, and Bayh lost not only conservative votes but liberal ones as well

The Electoral College was built on a compromise between slave-holding states and the North. These factions and divisions are dangerous for democracy. America has made strides in voting rights, and there is still much more to achieve. However, until everyone’s vote counts the same and their vote directly affects the outcome of an election, democracy is hindered. We must keep Bayh’s work toward fair and equal elections alive, and hopefully his efforts will inspire current and future legislatures to pick up where he left off. 

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This article was edited by Graham Thoresen Kristen McCarthy.