Birch Bayh's Long War On The Electoral College

The old-school Indiana senator has been battling the anachronistic institution for almost half a century. Foiled first by Strom Thurmond and the Dixiecrats.

Birch Bayh is a vintage United States public servant: At 84, the former Indiana senator has been around so long that his son retired from the Senate in 2010. And Birch Bayh has spent much of his five decades in national politics trying to put an end to the Electoral College. His relationship to the 18th-century relic by which state electors — not the national popular vote — select the president is something like the one between Wile E. Coyote and the Roadrunner. And if today’s election ends in a popular vote/Electoral College split decision that keeps Barack Obama in the White House, he might finally just catch the sucker.

Exactly 50 years ago today — November 6, 1962 — Bayh was elected to the United States Senate, part of the freshman class that included Massachusetts' Ted Kennedy, South Dakota's George McGovern and (the still-serving) Daniel Inouye of Hawaii. Bayh landed a seat on the Judiciary Committee and its subcommittee on constitutional amendments. A short time after, the subcommittee was nearly shut down when its chairman, the legendary Estes Kefauver of Tennessee, dropped dead of a heart attack. But Bayh, who spent the 1950s juggling his duties on the family farm with the Indiana state legislature and law school, asked Judiciary chairman James Eastland (a bourbon-pouring Mississippi Dixiecrat) if he could take over for Kefauver as long as he supplied a budget out of his staff allowance. "Mister Chairman" gave him the OK, and so Birch became chair within his first year in office.

Then president John F. Kennedy was shot in the head in Dallas. Kennedy did not survive his injuries, but a question did: What would have happened if he had? In the scientific age that could give a man control over a nuclear arsenal as well as the medical treatment to keep him alive after a massive head wound, Congress decided it needed to set a clear, constitutional mechanism for presidential succession in case of incapacitation. So chairman Bayh began drafting what became the 25th Amendment. A few years later, Congress and the Supreme Court butted heads over the Vietnam-driven movement to lower the voting age so it matched the draft eligibility age of eighteen. Again, Bayh’s subcommittee swung into action with the 26th Amendment, creating a constitutional right for 18-year-olds to vote. Two crises had made Bayh the first American since the founders to draft more than one amendment to the Constitution.

But of course, no man lives without regrets. There were constitutional amendments that got away, and one close to Bayh's heart would have abolished the Electoral College.

Bayh was initially skeptical of replacing the Electoral College with the direct popular vote. At the time, the more prominent College-related issue was the possibility of unpledged and "faithless" electors casting protest ballots for candidates that their state had not selected, as 15 did in 1960. In 1965, Bayh backed an amendment to bind a state’s electors to the winner of its popular vote, but soon came to see the folly of bothering to reform a process so “inconsistent with the democratic process,” as he told me over the phone yesterday, “where the person who wins doesn’t necessarily get the most votes.”

In January 1967, Bayh introduced an amendment to instate the direct popular vote. It went nowhere. At the start of the next Congress, January 1969, Bayh again introduced his amendment with 40 Senate cosponsors, the support of President Richard M. Nixon, and a majority in the House. This time, he was bottled up by Southern opposition in the Senate Judiciary Committee, led by Republican Strom Thurmond of South Carolina.

“Strom Thurmond is not a good example of legitimate opposition,” Bayh says now. “His whole play was to his constituents, which was by definition based on the issue of race.” Alabama Governor George Wallace, a Dixiecrat, was attempting to wreak havoc on presidential elections by winning enough electoral votes to throw the decision to the Democratic-held House, at which point he hoped to extract concessions sympathetic to his segregationist agenda.

Bayh tried again in 1971, in 1973, and in 1975, but it was no use. His final push began in 1977, just months after Jimmy Carter won by a national margin of 1.7 million votes that could have been undone in the electoral college with a swing of 25,579 voters in Ohio and Mississippi. But despite widespread public support, days of committee hearings, and pages of testimony, Bayh could not find the votes to overcome a conservative filibuster.

Bayh is, however, quick to point out that conservatives were not his only opposition.

“I had an interesting experience, one of the few times I’ve been angry enough to throw people out of my office,” he says from his home on the Eastern Shore of Maryland. In the 1970s, African-American and Jewish leaders visited his Washington, DC, office and told him “to get off this Electoral College reform kick.” They told Bayh that their vote in big states like Pennsylvania, Ohio, Michigan, and Virginia gave their relatively small portion of the electorate more sway. “You dump us into the whole mix,” Bayh recalls of their position, “and we’ll get lost.”

Bayh told them, “You’re talking to somebody who busted his tail for ‘one person, one vote’” – the mantra of those fighting to increase urban representation by redrawing gerrymandered districts in federal and state legislatures. Bayh also took part in breaking the Southern filibusters hampering landmark civil rights legislation like the Voting Rights Act of 1965, and put his full weight behind the Equal Rights Amendment, the women's rights proposal that never quite got enough support to become the law of the land.

In recent years, Bayh has helped lobby state legislatures to join a compact that will bind their Electoral College votes to the winner of the national popular vote if enough other states to form a majority also adopt the plan. So far, the only ones to join are the District of Columbia and eight relatively progressive states: California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, and Washington. I asked Bayh why “more conservative states” had not adopted the changes. “More conservative states," he replied, "by definition, are against change.”

That might not be the case if Barack Obama were to win in the Electoral College but lose the popular vote on account of Republican voters turning out disproportionately in guaranteed-red states relative to Democratic turnout in places like New York and California. 2012 could be a galvanizing event for Republicans as the 2000 Bush-Gore split decision was for Democrats.

Bayh has considered this scenario, but seems skeptical that it will create the necessary atmosphere for reform. Perhaps, after so many tries, he’s wary that any event could cause the centuries-old institution to crumple. Bayh has long referred to the Electoral College as "electoral roulette." In all his years playing, he still hasn't beaten the house.

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