Radiolab - The Unpopular Vote

Starting point is 00:00:00 Listener supported. WNYC studios. Oh wait, you're listening? Okay. Alright. Okay. Alright. You are listening to Radiolab. Radiolab.

Starting point is 00:00:19 From? WNYC. See? Yep. Hey, oh, I'm ready to go, let's go. This is Radiolab, I'm Lethif Nasser. Good. And I'm Annie McEwen.

Starting point is 00:00:36 Oh, I'm gonna be in the thing? I'm gonna be at the top? Yeah, sure, why not? And I'm Annie McEwen. And you might be wondering why you're here, Annie McEwen. I thought this was the bathroom. What am I doing here? Um, well, I needed help.

Starting point is 00:00:49 I needed a companion, uh, for this piece. Lulu's out. Lulu's out, still on maternity leave. And I wanted you here for this story because you and I, we are both Canadians. And I wanted to do a story that is not about Canada, but about something essential to this country, the United States. And I just thought there's a value to you and I not being from here in this foreign land. Like we're aliens staring out of the cockpit of our UFOs at the new land in front of us and observing?

Starting point is 00:01:26 Were anthropologists? Yeah, very polite anthropologists. And so if we could, I would like for us to turn our Canadian eyes to the U.S. presidential election. This election is close. Everyone knows that. to the U.S. presidential election. This election is close. Everyone knows that. And so, well, so maybe my first question is just,

Starting point is 00:01:50 what do you think about when you think about an American election? The circus. Kamala Harris! The carnival. So put on Pavarotti singing Ave Maria. Nice and loud. Sort of a grotesque carnaval type thing.

Starting point is 00:02:05 That is just so confusing. I'm just like in awe of how complicated it is. Yeah, that's the thing. When I first got here, the way this country picked president felt to me like. Here we've got our reds, we've got our blues. A giant. We've got our toss ups. Rube Goldberg machine with all kinds of, you know, it's like.

Starting point is 00:02:25 Take a look at this. This is her big blue firewall. If Pennsylvania goes blue, eight doors open up. Slip back the blue wall. And a marble hits Michigan and a mousetrap falls on Wisconsin. So that's your clearest path to Vickerville. She's got several paths. Or how about.

Starting point is 00:02:40 St. Harris loses Georgia. Well. Guess what? Look out for North Carolina. You come over now to the Sunbelt Battlegrounds State. Which means then you really need to pay attention to Nevada and Arizona. Well, look out for North Carolina. Which means then you really need to pay attention to Nevada and Arizona. And it's sort of just like… How?

Starting point is 00:03:01 One of, if not the, most important election in the world. How is this the system like just the system seems so arbitrary and confused It's always seemed so arbitrary and confusing Until I heard this story This story for me felt like it explained so much about how Americans picked their president and why. But also that it didn't necessarily have to be this way. And there was a moment, there was one moment, not like much more recent than I expected.

Starting point is 00:03:36 There was one moment where it all could have been a lot simpler. And it all almost was... a lot simpler. Hello. Hey. Hi. How are you? And it's a story I first heard. Good. How are you? I'm good. I'm good.

Starting point is 00:03:53 Sorry, we're a little, as usual, slightly frantic here. From my friend and mentor, Harvard historian, Jill Lepore. Hahahaha! So the story starts with a guy. And I kind of love this guy. Birch Bye. And I especially love him because of his jingle. He was a US senator. From Indiana. Like a very wholesome looking kind of corn-fed guy. He was a very handsome, charming, dimples, blue-eyed young guy. Like a John F. Kennedy monkeh, as they would say.

Starting point is 00:04:36 He literally gets called the Kennedy of the Midwest. Please join me in a warm welcome for the Democratic senator from Indiana, Birch Vine. And thank you very much. He was very ambitious. I think we have a responsibility to see... Very, very ambitious. ...that this country is today and will be for future generations. What Abraham Lincoln described as the one last best hope.

Starting point is 00:05:00 It's a rather significant responsibility. It's ours, yours and mine. And I hope we don't shirk it. So he is elected to the Senate in 1962, takes office in 1963. And when he gets there, he's one of the youngest members of the Senate. He's still wet behind the ears. Yeah, he's 34 years old. So Birch died in 2019, but we were able to talk to two of his former staffers.

Starting point is 00:05:29 I'm Jay Berman. At one point I was a legislative assistant to Senator Birch Bayh of Indiana. At another point I was the chief of staff. And my name is Bob Blameyer. I spent the first 13 years of my adult life starting as a freshman in college working for Senator Birch Bayh. So a couple things to know about Birch, one. Birch had an ice cream addiction.

Starting point is 00:05:50 He loved ice cream. Which was bane in my existence for many years. Why, wait, why? Because you're always on a tight schedule and he would see a Dairy Queen and we had to go there. He carried his spoon in his briefcase, seriously. Then the other thing, which we already mentioned, he was really ambitious.

Starting point is 00:06:06 But he was a problem solver. He would see something that needed to be fixed and go after it. And when he gets to the Senate in 1963, he immediately has a problem. I mean, it's a kind of petty personal problem, but he is put on the Judiciary Committee because he'd gone to law school.

Starting point is 00:06:24 But as a junior member, he doesn't get to chair a subcommittee, which sounds like who cares People want yeah, because that's how you actually get a little slice of power in Congress and how you can actually do things Okay. Well, what happens is there was a subcommittee on constitutional amendments. And it was kind of a dud of a committee. Didn't do a lot of work. It was known as the graveyard where proposed amendments go to die, but the chair of the subcommittee suddenly dies. So the guy in charge of all the subcommittees is like, all right, I'm gonna shut it down. We're just like spending money on this thing. It's pointless.

Starting point is 00:07:05 But Birch, when he finds out about this, he goes straight to the guy in charge and he's like, Hey, don't worry about these budgetary concerns. I'll finance the committee out of my own Senate office budget. And Birch is just telling him like, Hey, come on. It's available now.

Starting point is 00:07:20 Nobody wants it. Let me have it. I need something to play with. Cause he's just looking for something to grab onto. Yeah, he doesn't have like a big plan for the Constitution. He's not that guy. But he's a charmer. So eventually the guy said, sure, Birch, you can have it.

Starting point is 00:07:36 And it changed his life, and it changed our country. Because two months later, bang. Here is a bulletin from CBS News. November 22nd, 1963. Three shots were fired at President Kennedy's motorcade in downtown Dallas. John F. Kennedy is shot and killed. Vice President Lyndon Johnson will be taking the oath of office shortly and become the 36th president of the United States.

Starting point is 00:08:03 Two weeks later in the New York Times, there's an article with the headline, Succession Problem. About how the terrible assassination of President Kennedy raised an issue of, what if a president became disabled? Because Kennedy— He didn't die immediately. What if he'd gone into a coma or been brain dead? So disabled that he could not have carried out the duties of the president.

Starting point is 00:08:25 Duties that could include the power to launch nuclear weapons. There was nothing in the Constitution on this. People were like, shoot, we don't have a plan for this. Which was a problem. But, hey, look Kim over here. There's Birch. The chairman of the subcommittee on constitutional amendments. And this seems like a constitution-level problem.

Starting point is 00:08:48 Let's fix it. We got a problem. Let's fix it. But... Another problem. Passing a constitutional amendment is, like, the hardest thing you can do as a politician. Because you're required to get two-thirds of the House... Two-thirds of the Senate...

Starting point is 00:09:01 And three-fourths of the state legislatures. All of them. Not an easy thing to do. But Birch, he took that as a challenge. And he's got dimples. He's got charisma. Unbelievable political skills. And one of the things he did, he went to the American Bar Association.

Starting point is 00:09:14 He pulled in lawyers, political scientists. To try to build a coalition. To get non-partisan support behind him so he can take this amendment, go to both parties, and say... It's just logical. This amendment is... Simple. Easy? It's kind of a no-brainer amendment? We've got a problem.

Starting point is 00:09:34 Let's fix it. So he takes his amendment, he goes to the House, the Senate, all the state legislators... And overwhelmingly... It passes! Yay! A whole brand new amendment to the constitution and that is the 25th amendment presidential inability and succession now the kind of interesting thing is that if you have have you heard of the 25th amendment before no no okay so we're

Starting point is 00:09:58 calling on vice president pence to invoke the 25th amendment it came up a lot during both the trump presidency and reportedly calling on biden's cabinet to invoke the 25th amendment. It came up a lot during both the Trump presidency and... Reportedly calling on Biden's cabinet to invoke the 25th amendment. It has come up a lot during the Biden presidency. Which would possibly remove him from office. Of like, oh, look at this guy, he's so old and he's so irrational and da da da, and we should use the 25th amendment to unseat this guy or whatever, right? Like it's a sort of a political weapon now, right?

Starting point is 00:10:23 But initially it was not supposed to be that. It was not political. It was just practical. Writing the 25th Amendment to the Constitution is one of the ways I have been able to serve both Indiana and the nation. And for Birch, you know, this young, ambitious guy, this is a huge deal.

Starting point is 00:10:40 Like a founding father level achievement. He's still in his 30s. Birch fight was his theme song. Hey, look him over. He's still in his 30s. Birch Byte was his theme song. Hey, look him over. He's just singing it to himself in the graveyard. That's right. Check me out. Okay, so he passes this constitutional amendment.

Starting point is 00:10:53 And Jill says, because it's so hard to pass an amendment. Once one happens, people are like, oh, I forgot you can amend the constitution. And all of a sudden it's like a window opens. And this burst of amendment activity. And suddenly, Birch's graveyard became like a dance club that everybody wanted to get in. And he's the bouncer. You know what I mean? I was thinking like Candyland.

Starting point is 00:11:15 Everyone wants to go to his. He's the Candyman and everyone wants into Candyland. I sort of feel like he's more of a candy guy than a dance club guy. Sure, sure, fair. But yeah, so all of these people are coming to Birch with these ideas for what they want to see in the Constitution, including the new president, Lyndon B. Johnson. And he says, well, you know, you just passed the Constitution amendment. We'd like you to be the sponsor of one that we want, which is to eliminate what we call the faithless elector.

Starting point is 00:11:47 Faithless elector? Faithless elector. Like without religion? Uh, no. But. Okay, so here we are actually finally getting to the thing of electing a president. Okay. Sorry. So most people don't actually realize this, but when you vote for the president of the United States, you're not actually voting for the president of the United States. You're voting for someone who then votes for the president of the United States.

Starting point is 00:12:19 Oh, okay. So those people are called electors. And basically how this goes is like you vote in your state, your state has a certain number of these electors, and then the electors take a pledge to vote for the candidate who got the most votes in your state. But a pledge is a pledge, and it could be broken. In the history of US presidential elections, approximately 156 electors have broken that pledge and either not voted or have voted for a different candidate, essentially have acted as faithless electors.

Starting point is 00:12:57 And Johnson, for a lot of reasons, just thought, okay, this is a problem. And Birch, you're a problem solver. So we'd like you to eliminate electors and therefore the prospect of a faithless elector. And Birch said, sure, I'll introduce it as a constitutional amendment. But what happened? What happened was once Birch started holding these hearings on faithless electors, he started learning more and more about the Electoral College, about how it came to be, about why we still had it. And the more he learned, the more he became sort of radicalized, convinced that this system,

Starting point is 00:13:43 the Electoral College, that it's a ticking time bomb. radicalized, convinced that this system, the electoral college... That it's a ticking time bomb. And that somebody had to stop it. That's coming up after the break. Lettif? Annie. Radiolab. Okay, before we get going, I'm curious, what do you, what do you as a Canadian here on a visa, what do you know about the electoral college? Okay, well, I guess when I first got here, I thought this is probably a school you go to when you want to become president.

Starting point is 00:14:43 It's a college. It is. That was my first question about it. Why is it called college? You know what it is? It's like, so the use of the word college here, this is a total tangent. It's college like, you know how they have like the College of Cardinals or the College of Surgeons or whatever. It's like college is just like the meaning is just a group of people.

Starting point is 00:15:02 Oh, like a pod of whales. It's like a pod of whales. Yes, exactly. Okay, so we left off Birch Bayh is now focusing his problem solving gaze on the electoral college. He's having these committee hearings and he's learning, right? Why it exists, what it does, how it works. why it exists, what it does, how it works. And so I think for us to be able to understand

Starting point is 00:15:27 why all of this radicalizes him, we have to learn what he learned. We have to go back and understand the Electoral College. Okay, let's go. Let's go, let's go all the way to the beginning to explain. I thought we had started, but it sounds like we haven't even started yet. No, we haven't even started.

Starting point is 00:15:46 It's amazing. It's so wonky. Let's start. But we're ready. You have me. I'm your candy man. I'll follow you anywhere. Okay.

Starting point is 00:15:55 All right. So here we go. So here we are in the candy land that is Philadelphia, 1787, the Constitutional Convention. And founding fathers are like, we're starting this new country, we're very excited about it. The thing we can all agree on is we do not want a king. But we do kind of need someone to be in charge. So we're going to have this person called the president.

Starting point is 00:16:22 But how are we going to choose the president? That would require some thought. Can I pause and take a little sip of Coke here? Yeah, of course. Go for it. By the way, this is Alex Kesar. Also, I should say, even in our first conversation when I was talking to Jill. So there's a great book by Alex Kesar called Why Do We Still Have the Electoral College?

Starting point is 00:16:44 She brought you up. And then basically every other interview we've done for this story, people have brought you up. That's what I tried to do in that book. So he wrote the book, Why Do We Still Have the Electoral College? And he's also a professor of history. And social policy at Harvard University. But okay.

Starting point is 00:17:04 So anyway, they couldn't agree on a method of choosing the president. And so there were some ideas on the table. One idea was, well, we just came up with Congress. All right, well, Congress should just elect the president. But that's a bad idea. Then you lose separation of powers and checks and balances. Then the president would be answerable to Congress. Like it would run for reelection and he needs to have their favor.

Starting point is 00:17:24 That's stupid. We can't do that. That's a dumb idea for reelection and he needs to have their favor, that's stupid. We can't do that. That's a dumb idea. Thanks very much. So someone else in the room says, well, what about the people? And everyone's like, no, we can't do that. Look, you know, how is Farmer Johnson in a distant county going to know about some guy in Virginia running for president?

Starting point is 00:17:40 It's 1787. People didn't know anybody beyond their own neighborhood or town. So what they decided to do... ...was to take a break for a week. They just left Philadelphia. George Washington went fishing for the week. What? And they left behind a committee called, and you'll like this,

Starting point is 00:17:56 it was called the Committee on Unfinished Parts. I kind of love that. Right? Okay, so these founders, most of whom you never heard of, weeks later, they are still stuck there in Philadelphia. All the cool guys are fishing. All the cool guys are out fishing and doing other stuff, and they have to figure this out.

Starting point is 00:18:14 To get this thing done. They wanted to get it sent to the states. So they're like, okay, how do we do this? How do we pick a president? How do we do this? And then they figured it out. They were like, okay, how about we just copy paste Congress? What does that mean?

Starting point is 00:18:30 Well, how do you copy paste? Right, right. Like just plagiarize? They're not going to plagiarize. They're just like, okay, we know everybody's already agreed on Congress, right? There's been a lot of debate, a lot of arguing. But what they did to make a government that everybody agreed on, to make Congress, is they started putting thumbs

Starting point is 00:18:50 on scales for different groups of people. Thumb on a scale. Go over it. Okay, so one of the thumbs is they make the Senate, and they say every state, doesn't matter if you're big or small, you get two senators. And so that's a little thumb on the scale for the small states that don't have a lot of people In them so that they aren't completely overrun by the big states. Okay, the other thumb is for the South They say okay You can count an enslaved person in your state as

Starting point is 00:19:14 3-5ths of a person that way you boost the population of your state and you get more representatives in the house That was another thumb to give more power to the South. So they weren't overrun by the North You know, you can imagine them sitting there. okay, so how do we choose a president? Well, do big states have more influence than small states? And you know, what about slaves? And then we're going to reopen that whole thing? No, we're going to import the whole thing. So what the Electoral College is, is in some respects a replica of Congress.

Starting point is 00:19:42 If you think about it, each state has electors equal to the number of representatives plus the number of senators, okay? And then the electors would convene in their state capitals and cast their electoral votes. And so the committee's like, bingo, job done. So that sort of seems smart to me. It is, under the circumstances, very clever solution.

Starting point is 00:20:05 So that also is stuff they put in the Constitution, right? So it's like, there's this body of electors that vote for the president, each state has a certain number of electors based on how many representatives they have in Congress. All of that is in the Constitution. What is not in the Constitution is how to convert the people's votes in the state into electoral votes. Do you do it proportionally? Where if you get 53% of the state's vote, you get 53% of the electoral vote. Right, right. Or you could do it by district. Each district in the state gets an electoral vote. But ultimately,

Starting point is 00:20:43 the founders are like, we're gonna let the states decide. That makes sense. That's like an important part of this country, is that the states are making big decisions. True. But that might be the biggest mistake they made in this whole process. So basically...

Starting point is 00:20:58 And Alex says there is this pivotal moment pretty early on where the system we now have starts to really take shape. In the 1800 election. Between these two sort of juggernauts in the history of this country, Adams and Jefferson. Now they have also run against each other in 1796. And in that election, which Adams won. Adams had gotten an electoral vote from the state of Virginia, Jefferson State.

Starting point is 00:21:26 Because Virginia was doing district voting. Adams had won a district, so he got a vote. But in 1800, the Virginia legislature didn't want that to happen again. They saw a close election coming. And so the Virginia politicians got together and passed a state law that said, got together and passed a state law that said, okay, we're done with this district system. From now on, the way our electors will vote will be winner take all. If you win the majority of the votes in this state, all of our electors will cast their votes for you. And the Virginian politicians, they did this because they knew Jefferson was going to win a majority of votes in their state, and this way he wouldn't leave any on the table.

Starting point is 00:22:10 A little dirty. A little dirty. Yeah, some's a little smelly. Yeah, the candy's gone smelly. Because what they're doing is erasing all of the votes of the people who voted for Adams. Yeah, no, exactly. And what's interesting when you look into the documents of it is they passed that law and then they attached to it a kind of Apology for doing it effectively saying we know this isn't really good or fair

Starting point is 00:22:32 We know it would be better for the country if we did not do this, but we're doing it Anyway, so if the Virginia did this Shockingly, Massachusetts John Adams state retaliated and did a version of the same thing. And Alex says, after that, the states- They're off to the races. Another state does it, then another state does it. And this is basically what the system is now.

Starting point is 00:22:56 And what that system leads to is the feeling that your vote just doesn't actually matter. Because like, if you vote for someone for president, and then 50% plus one people in your state vote for someone else, your vote doesn't get counted. Like for president, it means it's basically, it's effectively thrown out. And that is essentially happening to tens of millions

Starting point is 00:23:22 of votes every presidential election. Right. Are you going to make us feel better about voting by the end of this? Or? Um, I think, I think so. I think so. It is with pleasure that I introduce Senator Birch by. Because I kind of think of Birch and what he was trying to do as a sort of beacon of hope. Thank you very much, Mark.

Starting point is 00:23:46 Members of the faculty and student body of UCLA, it's a privilege for me to have the chance to be here with you this afternoon and to share some of my thoughts. So when Birch started holding those hearings in the mid-60s on faithless electors, he's having all these different experts come in and testify about the whole history

Starting point is 00:24:03 of the Electoral College, the fact that it wipes away all these people's votes, you know, all different kinds of things. But one of the things that these experts hit on over and over is that the system is actually fundamentally dangerous. You may say, well, why is it dangerous?

Starting point is 00:24:21 Well, basically it's dangerous. The most dangerous aspect of it is the fact that the present system, the Electoral College system, does not guarantee that the man who wins is the man that has the most votes. And Alex says that's because when you have this winner-take-all system, It transforms the contest into a contest among states. Because once you have winner-take- all, then winning the state really matters. Winning as many people as you can doesn't. And because of this, the political leaders

Starting point is 00:24:52 of both of our major parties know. You can lose the popular vote in the election. Doesn't make any difference if you're soundly defeated. So long as you win the right states. You're going to have enough electoral votes to be elected president of the United States. And this had almost just happened. In 1960, 1960 was one of those very close elections where if like, I think it was like

Starting point is 00:25:13 20 or 30,000 votes had gone differently in a few states. The loser of the popular vote. Would have won because of the electoral college. And this is the thing that all the experts were saying was dangerous, which was the very thing that terrified Birch. Because, I mean, we think of the United States as in a particularly fragile moment historically right now, but that was also the case in the 1960s.

Starting point is 00:25:35 So remember, in 63, Three shots were fired. President Kennedy gets shot and killed. It's the height of the Cold War. There's continued racial unrest and police brutality. By 68, It's the peak of the Cold War. There's continued racial unrest and police brutality by 68. At the peak of the war in Vietnam. The whole world is watching. Chance the crowd on the side.

Starting point is 00:25:50 There's a protest at the Democratic National Convention. Violence on the streets. Dr. Martin Luther King. MLK Jr. is assassinated. Shot to death. Robert Kennedy. Senator Kennedy has been shot. Is that possible?

Starting point is 00:26:01 Is that possible? So Birch, he's watching all of this unfold. And he's just really worried. When we have an electoral college system. That if we have a system that can take the loser and make them a winner. We tend to erode the confidence in the people of this country, in their president, and in their form of government. That is his huge concern.

Starting point is 00:26:21 That at some point in the future, Americans will refuse to recognize the legitimacy of a president. And so once he came out of these committee hearings, learning what he did about the electoral college. Because you know what we need to do? We need to get rid of it. We don't need to tinker with it. We need to get rid of it.

Starting point is 00:26:40 Yes, it should be one person, one vote. The direct popular election of the president be one person, one vote. The direct popular election of the president. One person, one vote. It's the only plan that guarantees you that the candidate with the most votes will win. And from this point forward, he devoted himself to this cause. To take the Electoral College and burn it to the ground. That's coming up after a short break. Okay, Latif. Annie. Radiolab. Back from break.

Starting point is 00:27:35 Back from break. Can I tell you another fun fact about the electoral college? Latif, I would like nothing more. Okay, so take a guess. Okay. Okay. What is the least amount of the popular vote, what is the least proportion, percentage of the country that could vote for you where you could still win the electoral college? Uh...

Starting point is 00:28:00 49%. So you think 49% of people have to vote for you to win the electoral college? 40%. No, I don't know. I mean, nothing makes sense. I mean, like, yes, I would say 40-something. 23%. Wow. So if you get 50% plus one in all the smallest states, you could conceivably get 23% of Americans' votes and

Starting point is 00:28:29 become the president. Hmm. That is shocking. Isn't that crazy? Yeah. Okay, so 23%, that would be like that has never happened. What has happened five times, five times in the history of this country. A candidate has lost the popular vote, but won the electoral vote and become the president. And so crazy.

Starting point is 00:28:51 Besides those five times, it nearly happened in 1960. It nearly happened again in 1968. And so that year, 1968, Birch Bayh thinks now is the time to launch this amendment to abolish the electoral college. And having just under 25th, he had some sense of it. And Jay, his chief of staff, said, step one, build a coalition. And so, please join me in a warm welcome for the Democratic senator from Indiana. He's going to these nonpartisan groups. Senator Birch Bayh.

Starting point is 00:29:23 Giving speeches. It's extremely important. to the American Bar Association, the Chamber of Commerce, again, Birch by Staffer, Bob Blamire, hammering home this idea, which It was so exciting. Senator Biden has launched a campaign. He's on TV every night. Establishing a nationwide movement. To do away with the electoral college. Hammering home this idea. Which was. Each of us, whether we live in Rhode Island or Texas. One word.

Starting point is 00:29:54 Indiana, Alaska. Equality. Each one of us ought to have the same opportunity to elect a president. It ought to be one person, one vote. And it seems to me there's no excuse for any other system. One person, one vote. Everybody's vote to me there's no excuse for any other system. One person, one vote. Everybody's vote should count the same. And by 1969,

Starting point is 00:30:08 Opinion polls show that around 80% of the people favor a more direct election of presidents. 80% of Americans agreed with him. I intend to get Congress to pass a direct election law this year. And so, 1969, his amendment goes in front of the house. And what happened was boom. Overwhelming. Huge victory. 339 to 70. What? Easy pass. Wow. Unbelievable. It was just amazing. I mean right now it'd be extremely difficult to get a house vote of 80% to declare what day it was. Right. Or be extremely difficult to get a House vote of 80% to declare what day it was.

Starting point is 00:30:46 Right. Or to declare Christmas to be a holiday. But as Alex Kaysar points out, then the action switches to the Senate. And in the Senate, Birch hits a wall. A wall made up of two different groups of people. One of them was senators from small states. Now small state senators, mostly Republican, said, oh, well, we get two votes automatically because we have two senators.

Starting point is 00:31:17 And that was the compromise made at the Constitutional Convention. Remember, those two senators was the thumb on the scale for the small states. Right. So, I mean, think of Wyoming, Montana, South Dakota, and North Dakota, these states that have these electoral votes and no voters. These two votes are a big deal. And the small state senators wanted to preserve these two electoral votes. So that was one group.

Starting point is 00:31:40 And then the other group, standing in his way, were southern segregationists. And they were against Birch's amendment because the electoral college in a winner-take-all system gave them more power while continuing to erase black voters. It was almost like that same thing back at the convention with the Three-Fifths Clause. Okay. Because white segregationists could use the black people in their state to count towards the state population, which gave more electoral voters more power.

Starting point is 00:32:14 But at the same time, because of the system, the winner take all system, the overwhelming white majority would wipe out and erase the black vote. So it becomes something of a article of faith that the electoral college is key to protecting the quote southern way of life. Senator James Allen of Alabama, he had a quote, something to the effect that, the electoral college is the South's

Starting point is 00:32:43 only political advantage left. Let's keep it. The Senate has refused to shut off debate with the proposed constitutional amendment to elect presidents by direct popular vote. And basically because of these two groups of senators, small state Republicans and Southern segregationists, Birch's amendment gets stuck in the Senate six votes short. Six votes short of the necessary two thirds and now electoral reform seems about ready to fall. But there was one last hope, which came in the form of a very unlikely ally.

Starting point is 00:33:20 Nixon. Nixon. Republican President Richard Nixon. Nixon. Republican President Richard Nixon. Whether there'll be any action up here on Capitol Hill, it depends pretty much on one man, Richard Nixon. And Nixon, even though he got elected by the Electoral College, he had said, It's obsolete. It's dangerous. It should go. Right.

Starting point is 00:33:38 And Jay says Nixon knew how popular Birch's amendment was. He had seen that House vote. So overwhelming. That right after it, Nixon. Made a public statement saying, in view of what the House has done, the only chance for reform of the present system is for the Senate to do the same thing. And Nixon, being a Republican president, maybe he could put some pressure on these Republicans who are blocking the

Starting point is 00:34:05 amendment. That'll take all the political clout a new president can muster to keep this new Congress from sweeping electoral reform under the legislative road. But meanwhile, Again, Jill Lepore. This other whole drama is unraveling in the Senate Judiciary Committee that Bayh could not have anticipated, which is that Nixon has a bunch of Supreme Court nominees that are going to come before the Senate Judiciary Committee on which Bayh serves. And Nixon has pledged that he will appoint

Starting point is 00:34:37 a Southerner to the court. So early 1969, Nixon nominates a judge from South Carolina, Clement Hainsworth. And Hainsworth, he has this problem. Hainsworth had made a number of decisions in which he had a financial interest. He owned stock in companies that he made decisions that helped those companies. And in the confirmation hearings, Birch... He had no intention of opposing Hainsworth. Planned on voting yes, confirming Hainsworth.

Starting point is 00:35:04 And Birch kept saying, I gave him every opportunity to say, you're right, you know, if I had to do it again, I would have recused myself. And he would never do it. He kept insisting he had done nothing wrong. And to Birch, it was pretty clear that this guy, if not totally corrupt... He got personal financial secrets. Yeah. And so Birch is like, all right, this guy is not fit for the court.

Starting point is 00:35:30 And so... Good evening. In a severe setback to President Nixon, the Senate today firmly refused to confirm the Supreme Court nomination of Judge Clement Hayntor. Birch by leads the charge against Nixon's Supreme Court nominee. President Nixon was obviously not pleased by what the Senate did to his nominee. The president issued a written statement in which he expressed disappointment and anger over the Senate rejection of Hainsworth.

Starting point is 00:35:53 Hainsworth, the 10th man in history to be so rejected, the first since 1930. Well, if so, does that mean like what he's doing to Nixon here, is that going to affect his efforts with the amendment stuff? At this point, I don't think he knows. But Nixon says, goddamn, goddamn, Birch Bayh, I'm going to go further south and farther right. So he does. So he brings in his next southerner, this guy Harold Carswell, who's from Florida, who is further south and much further right, but also happens to be completely unqualified

Starting point is 00:36:25 for the Supreme Court. I have to tell you, I looked for a place to hide, but there was no one else there. This is Birch from an oral history from 2009 done by the University of Virginia's Miller Center talking about the Carswell nomination. I have a good recollection of how this all happened. the Carswell nomination. He said he got together union leaders, Jewish leaders, black leaders. room and saying, what do you think? Now we knew then that Carswell, as a young 25 year old when he was running for the state legislature in Georgia, had said, I yield to no man in my belief in white supremacy. We knew that. Was that enough?

Starting point is 00:37:24 Pretty jamming. Well, but you know, everybody was exhausted fighting the Hainsworth thing. There was no stomach left for another battle. And as we went around the room, here are these people who had thrown themselves on the spears of the opposition in Hainsworth, said, well, you know, Birch, Senator, there had been a lot of changes in the South since then. And, you know, Birch, you know, none of us want to be responsible for everything we said when we were 25.

Starting point is 00:38:02 And it was that way all the way around until we got to Clarence Mitchell, who was the executive director of the NAACP. We got around to him and he said, well, gentlemen, it was almost as if we were getting ready to leave. He said, gentlemen, I respect where you're all coming from, but in my lifetime of experience I found that once a person ever feels that way, they never ever really change their mind. Burch says that when he went home that night, he couldn't sleep. He kept thinking about what Clarence Mitchell had said in that room.

Starting point is 00:38:45 And in that moment, he didn't know what to do. Like here's Nixon, a potential ally for his amendment. Nixon had just been elected, okay? This is Nixon's first year as a president. And to shoot down another nominee of his. It would have been the first time a president had had two nominees defeated in 76 years. It would humiliate Nixon, likely turn him against Birch, and kill... The thing the country most needs. His chance at abolishing the electoral college.

Starting point is 00:39:17 The thing the country least can see that it needs. There were several times when he said, if I do this, it's going to hurt me over here. Oh, like where if he votes no, it might hurt his amendment. Yes. Or do you protect the highest court in the land, the most influential court from having a white supremacist on it for who knows how long? Like which thing gives you the best outcome? And I was rolling and tossing.

Starting point is 00:39:42 In fact, I got out of bed and crawled into a bed in the guest room. He didn't want to bother his wife, who was asleep. And he started thinking about, like, in their home, they had their son, Evan. And he'd always been telling Evan, the way that we make change in this country is we work through the system. We always work through the system. Somehow or other it came to me that if my face was black and Evan's face was black. And this guy, Harold Carswell, was sitting on the Supreme Court of the United States.

Starting point is 00:40:16 And I said, son, we're going to work through the system. He'd say, dad, the system's already said what it thinks about us. So the next morning I got my staff together and I said, come on, we're going to rally the troops. I think we've got 25 people who stand up against this guy. Judge Carswell's nomination died today. March 1970, while his amendment is still stuck in the Senate, Birch leads the charge against Carswell. And single-handedly destroyed his chance of confirmation.

Starting point is 00:40:48 The Senate dealt President Nixon another embarrassing defeat, rejecting his second Supreme Court nominee. The end of the long fight to confirm... And so Birch's amendment sits and languishes in the Senate, six votes short. And Nixon, despite having come out publicly and said the Senate, six votes short. And Nixon, despite having come out publicly and said the Senate had to act on electoral college reform, despite the fact that Nixon was the one last person

Starting point is 00:41:14 who could maybe sway some of these Republican senators who were blocking Birch. Nixon never lifted a finger. He didn't do a thing. He never ever called a single Republican senator and said, I'd like you to vote for direct popular election. I was asked if it were true. The White House is not helping because of his fight against the president's Supreme

Starting point is 00:41:36 Court nominees, Haynesworth and Carswell. Yeah, I'm not naive enough to suggest that it isn't a possibility, but that's a poor way to run a country. Now we can't say for sure that Nixon was retaliating against Birch, but what we do know is that a few years later it was made public that Nixon kept a list of his political enemies. And the very first name on that list is Birch by. No. And that's the thing.

Starting point is 00:42:05 Had Birch not tanked Nixon's nominees, maybe Nixon would have pushed some senators around and maybe quite possibly today we would have in the USA a totally different way of picking our president. Because one thing is true. If it had gotten through that vote in the Senate, it had already passed in the House, the support in the public was above 80% at that point.

Starting point is 00:42:27 It would absolutely have been ratified. Instead, it fell six votes short. And that was that. But presidents come and go. A senator can stick around for a while and Birch would ultimately get another chance at passing his amendment under another president. Only this time he would find the people he thought he could count on, the people he thought were on his side, were suddenly standing against him. That's after the break.

Starting point is 00:43:07 Latif? Ani? Radiolab. Do you know that every time it seems that the Senate gets into a major squabble, my next guest is in the middle of it. He led the fight against the Hainsworth and Carswell nominations. Would you welcome the junior senator from Indiana, Senator Birch Byrne. In 1970, Birch's election amendment fails.

Starting point is 00:43:30 But during the 70s, he goes on to do some pretty momentous stuff. He passes a different constitutional amendment. The 26th Amendment. But the injustice of lowering the voting age to 18. A voting system that sends young men to Vietnam, where the cold statistics on the battlefield show that half of them who died in Vietnam weren't old enough to vote for the public official to send them there. It seems to me this is not the type of democratic system we ought to be proud of.

Starting point is 00:43:56 That's good, Eric. So that made for two amendments. Making him the only person since James Madison, the founding fathers, to write more than one constitutional amendment. Wow. That's amazing. Wait, was it voting age 21 before? Yeah. only person since James Madison, the founding fathers, to write more than one constitutional amendment. Wow. That's amazing. Wait, was voting age 21 before? Yeah. Also? Yeah. He wrote Title IX.

Starting point is 00:44:10 Have you ever heard of Title IX? No. It's mostly known for women's college sports. But it had to do with the real issue of women in higher education. It's this legislation that basically says that any school that gets any public funding needs to treat men and women equally. It changed the country. But throughout all of this, the thing that he is just obsessing over and that he thinks

Starting point is 00:44:35 would be his biggest legacy is abolishing the Electoral College. And in the late 70s, he thinks he has his best shot at doing it. And that's because Republican Richard Nixon, Watergate happened, so he's out of office. Now, Jimmy Carter, a Democrat from the South is now the president of the United States. A Democrat from the South is now the president of the United States. When he takes office, one of the first things he does... President Carter sent Congress today a big package of proposed election reforms. ...is he tells Congress... It included an abolishment of the Electoral College.

Starting point is 00:45:18 We need to get rid of the Electoral College. And in the late 70s, he was set up to do that because now his party, the Democrats, had this big majority in the Senate. Clear sailing, smooth sailing ahead. Right. They think they have the votes. But as Birch is getting ready to bring his amendment back to the Senate, a whole bunch of rabbis, leaders of Jewish organizations in New York and in California and other places, had started teaming up with leaders in the black community. And they have joined the conservative South in support of the Electoral College. What?

Starting point is 00:46:00 I didn't know if I was having a nightmare. This is another former Birch by staffer Frederick Williams. Yeah, they didn't have to Coldcock him like that, you know that he had no idea those guys were going that way He's like we like it's very much an at to Brutus kind of a moment, right? Totally. It made no sense Okay. Well, what why are they sit like why why would they do that? Well because There was a belief in parts of the African American community, which is that the electoral college advantaged black voters because, and this was the theory, that black voters were swing voters in swing states.

Starting point is 00:46:38 There were a number of Jewish leaders that argued the same thing, that we have this impact on how New York goes and how Florida goes. Well, can you spell that out a little bit more? Can you explain that? What they're saying is that if we as a bloc, you know, blacks, for instance, typically have been voting 90% for the Democrat, if their votes can tip which way New York goes, or Florida or Illinois or some other state, then they're having a real impact on the Electoral College vote. Because those states, like New York used to be a swing state. Yeah, and California too.

Starting point is 00:47:06 Mississippi too. And so in these big crucial swing states, black voters and Jewish voters felt they had sort of an outsized power. I mean, Jesse Jackson, prominent black leader at the time, proclaimed, you know, the hands that picked the cotton have now picked the president. And this is kind of the thing about the electoral college, especially in a winner-take-all system, is this possibility that a minority group, like black people or Jewish people or Hispanic people or even like labor unions, teacher unions.

Starting point is 00:47:41 Many groups that you could name could become the decisive votes. — Any minority in the right state at the right time could become extremely powerful. — And thus, to switch to a national popular vote would remove that power. — And whatever group you belong to, you would just go back to being a tiny minority in the country as a whole. And the fear was from these black leaders and Jewish leaders in the 1970s is that political parties could then just ignore them. And there's this amazing moment in a committee hearing on Birch's amendment, and Birch is obviously present for it. The leader of the National Urban League, very prominent organization, Vernon Jordan, testified at the committee hearing.

Starting point is 00:48:26 And he opens his testimony by saying, me and Senator Birch Bayh are very close personal friends. Senator Birch Bayh has been a friend to black people in this country. But I'm here to say, we do not support this amendment. And he goes on to basically say, we as a people have been denied power in this country for over 200 years and now that we finally have some, you're trying to curb it. And basically goes even further to say,

Starting point is 00:48:54 if we were to support this switch to the national popular vote for president, our voting power would quote unquote, melt away. You know, just to defend Vernon Jordan, his argument wasn't 100% just, hey, black people are in these states, so we have some power. He has a good quote too.

Starting point is 00:49:13 He said, the electoral college system acts as a break to extremism. So we did also speak to this guy, Harry Roth. I'm director of outreach for Save Our States. A pro electoral college organization. We defend the electoral college system, trying to educate lawmakers and their constituents. And we reached out to him because we saw he wrote an essay about this moment when black leaders and Jewish leaders were coming out against Birch's amendment.

Starting point is 00:49:36 And you know, I mean, I wouldn't say 1979 was the height of racism in America, but you know, Vernon Jordan, National Urban League, they were around for a while. They saw how bad things could get. And you know, they feared a racial demagogue who hates blacks coming in and winning the presidency by maybe getting enough support from white voters in a time like that. But with the electoral college, that makes it much more difficult. You have to pay attention to blacks. You have to pay attention to Jews who, I think Jews make up 1% of the population, but Jews make up what percentage of New York, a very, you know, a decent percentage of at least New York City. So they're important

Starting point is 00:50:09 in a state like that. You can't, it's going to be hard to win New York if you're just attacking Jews left and right. Oh, okay. So like, it sounds so like Birch is just sort of taking this, this in sort of like taking these arguments in. What does he do with them? Like, what does he do next? Well, I got a call at like, must have been between 630 and seven o'clock in the morning. Frederick says when Birch first learned about this opposition that, you know, that all these people were flipping on him. He said, please be in the office at eight o'clock. We have to deal with this.

Starting point is 00:50:41 And it's hard to say exactly which meeting this occurred at and when it took place. But Birch tells his story of when a man from a prominent black organization and a man from a prominent Jewish organization came to his office, sat down with him and told him, direct popular election is not good for us, that this hurts us in all sorts of ways and we're not letting you pass this. Just, they even ask him to withdraw it. And Birch says, I've worked my whole life voting for measures to make you equal to everybody else.

Starting point is 00:51:17 And you're sitting in my office telling me that you want your vote to count for more. Get the hell out of here. Wow. And Frederick says he would later talk to that same black leader, the one Birch kicked out. He said, look at, look at man. The senator's been with you all the time, going all the way back to Carswell and Hainsworth. What are you doing here? He says, well we have no permanent friends and no permanent enemies, just permanent interests.

Starting point is 00:51:47 So basically what happens is these same black Jewish leaders kind of just go down the hall of the Senate and start knocking on doors of a handful of liberal Democrats from big states. And those liberal Democrats, including a young senator from the small state of Delaware, Joe Biden, vote against Birch's amendment. And so in 1979, once again, his amendment fails. But this time the wall that stops him is liberal Democrats, the few remaining segregationists, and small state Republicans. I don't know the degree to which you can say, but was that objectively true that they had more they had more clout or sway as minority groups under electoral college versus how much they would have had in the popular vote? It was probably true in the

Starting point is 00:52:52 1976 election when Carter ran but it certainly wasn't true as a broad pattern and it was clearly evident within a very few years that it's simply it simply was not a dominant pattern or a clear pattern. Oh, wow. So it was like a truth with a shelf life. Yeah, a very short shelf life. Okay. So like, what's Birch's next step? So 1980 Reagan gets elected in a kind of landslide and Birch loses his election, he's not in office anymore. And that's the end of his career as a legislator.

Starting point is 00:53:29 It's a sad story. I'm okay. Well, that's a because it sounds like you all were very productive. You all got a lot done. Well, we, Birch By got a lot done. And we always describe this as the one that got away. Like this is the thing you would think about? Yeah, yeah. It's his, it was, he said it was his greatest regret. Huh. Wow. Yeah.

Starting point is 00:53:55 And you know, there's this moment in one of Birch's oral histories where he kind of, he almost like turns on himself and he asked himself like, what could I have done differently? What could I have done to keep that from happening? And I don't know, like from from even what I've read from what we've read, like, it doesn't feel like there was anything you could have done differently. Because this was just this is the thing about the electoral college. It's distributing power, right? And that's the whole thing about the electoral college that he, Birch didn't like, that it was distributing power. He thought power should be equal.

Starting point is 00:54:36 But, and that gets to this kind of central question of democracy, which is like, should you put thumbs on scales? How do you do it? And for which people? And for how long? And who gets them and who doesn't? And how hard do you press that thumb down? Those are fundamental questions. And they're really hard questions to answer. Yeah, totally. And it seems like once you do put a thumb on the scale, it's just so hard to take that thumb off.

Starting point is 00:55:07 Yeah, really hard. And Jill even pointed out that after Birch's amendment failed in 1979, like, that was kind of it. It's the kind of, you know, powerful pronouncement about the end of the campaign to abolish the Electoral College. Have we ever had a hearing on abolishing the electoral college, gents? Is there any, do we even still do public opinion surveys about it? You know, and the thing is, Birch Bayh was right. That the more often a presidential candidate will win the electoral college and lose the popular vote, the more likely it will be that at some point in the future Americans will refuse to recognize the legitimacy of

Starting point is 00:55:53 a president. And it doesn't matter which side you favor, you cannot favor an election where we can't all agree on the result. This election is close. Everyone knows that. In the race to 270 electoral votes, every vote matters. Harris were to get Wisconsin, Michigan, Pennsylvania. You can see.

Starting point is 00:56:21 We're going to put New Mexico in play. We're going to put Virginia in play. We're going to put New Hampshire in play. We're going to run away. We're going to visit the battleground state of North Carolina. The candidates are fighting to win New Mexico in play. We're going to put Virginia in play. We're going to put New Hampshire in play. We're going to run away. We're going to visit the battleground state of North Carolina. The candidates are fighting to win key Midwestern states. South Asians in the state are the largest and fastest growing Asian voting block there. Like Michigan, both are determined to get as much of the union vote there as they can.

Starting point is 00:56:37 The Democrats, if they can see huge African American enthusiasm, they'll continue to play there. The Nebraska district that could, if it's close. This tells you, swing the election, both campaigns agree. Look at all the spending in Pennsylvania, it's about evenly matched. Then Georgia, Michigan, Wisconsin, Arizona, North Carolina and Nevada. The Democrats behind in North Carolina, waiting to see if they really mean it. Waiting to see if the Harris campaign will put significant money into North Carolina. I'm just gonna take a little more minute to do it just for today. We're Matt Kilty and Simon Adler produced it. Matt Kilty, Simon Adler, and Jeremy Bloom contributed original music and sound design.

Starting point is 00:57:30 Jeremy Bloom mixed it. Diane Kelly back checked it. And Becca Bresler and Pat Walters edited it. We first heard about this story from Jill Lepore, who is writing a book about the Constitution coming out next year. In the meantime, you can read her Magisterial history of the United States, These Truths. We've linked to that on our website, along with Bob Blameyer's Birch Bayh biography, Alex K. Starr's book about the Electoral College, and so much more.

Starting point is 00:57:57 Even Birch Bayh's little jingle is on there, what near-worm that is. The last thing I have to say, if you live in the United States and you are able to, please go vote. Peer pressure others to do the same. Thank you so much for listening and good luck to us all. We look him over, he's your kind of guy. Send him to Washington on fly, you can rely. In November, remember him at the polls. His name you can't pass by. Indiana's own birch by. Indiana's own birch by.

Starting point is 00:58:48 Hi, I'm David, and I'm from Baltimore, Maryland. Radio Lab was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, Becca Bresler, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nyanam Sambandhan, Matt Kielty, Annie McEwen, Rebecca Lacks, Alex Neeson, Sara Khari, Sarah Sandbach, Ariane Whack, Pat Walters, and Molly Webster. Our fact checkers are Diane Kelly, Emily Krieger, and Natalie Middleton.

Starting point is 00:59:31 Hi, this is Ellie from Cleveland, Ohio. Leadership support for Radiolab science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, Assignment Foundation Initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.

Radiolab - The Unpopular Vote

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