The Unpopular Vote

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Speaker 23 Hey, I'm ready to go. Let's go.

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Speaker 25 I'm Letzif Nasser.

Speaker 26 Good.

Speaker 27 And

Speaker 5 I'm Annie McEwen.

Speaker 28 I'm going to be in the thing.

Speaker 29 I'm going to be in the thing. Yeah, sure.
Why not?

Speaker 30 And I'm Annie McEwen.

Speaker 20 And you might be wondering why you're here, Annie McEwen.

Speaker 33 I thought this was the bathroom. What am I doing here?

Speaker 35 Well, I needed help.

Speaker 5 I needed a companion.

Speaker 36 Okay, Lulu's out.

Speaker 5 Lulu's out, still on maternity leave. And I wanted you here for this story because you and I, we are both Canadians.

Speaker 42 And I wanted to do a story that is not about Canada, but about something essential to this country, the United States.

Speaker 3 And I just thought there's a value to you and I not being from here in this foreign land.

Speaker 28 Like we're aliens staring out of the cockpit of our UFOs at the new land in front of us and observing. We're anthropologists.

Speaker 33 Yeah.

Speaker 41 We're very polite anthropologists.

Speaker 46 Okay.

Speaker 27 And so, if we could, I would like for us to turn our Canadian eyes to

Speaker 50 the U.S.

Speaker 4 presidential election.

Speaker 51 This election is close. Everyone knows that.

Speaker 8 And so, well, so maybe my first question is: just what do you think about when you think about an American election?

Speaker 54 Uh, the circus.

Speaker 28 The carnival.

Speaker 55 So, put on Pavarotti singing Ave Maria.

Speaker 57 Nice and loud.

Speaker 58 It's far sort of a grotesque carnival type thing.

Speaker 28 That is just so confusing.

Speaker 58 I'm just like in awe of how complicated it is.

Speaker 59 Yeah, that's the thing.

Speaker 3 When I first got here, the way this country picked a president felt to me like...

Speaker 56 Here we've got our reds, we've got our blues, a giant

Speaker 42 Rube Goldberg machine with all kinds of, you know, it's like...

Speaker 52 Take a look at this.

Speaker 19 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.

Speaker 65 So that's her clearest path to victory, but she's got several paths.

Speaker 11 Or, how about Big Harris loses Georgia?

Speaker 66 Well, guess what?

Speaker 59 Look out for North Carolina.

Speaker 31 You come over now to the Sun Belt Battleground states, which means then you really need to pay attention to Nevada and Arizona.

Speaker 67 Well, those are very, very swingy states that are very much in play for both campaigns right now.

Speaker 69 And it's sort of just like

Speaker 70 how

Speaker 72 like 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

Speaker 6 oh 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.

Speaker 31 And there was a moment, there was one moment, not like much more recent than I expected. There was one moment where it all could have been a lot simpler.

Speaker 59 And it all almost was

Speaker 76 a lot simpler.

Speaker 18 Hello.

Speaker 18 Hi.

Speaker 33 How are you?

Speaker 35 And it's a story I first heard.

Speaker 25 Good. How are you?

Speaker 33 I'm good.

Speaker 30 I'm good. Sorry.
We're a little,

Speaker 30 as usual, slightly frantic here.

Speaker 5 From my friend and mentor, Harvard historian, Jill Lapore.

Speaker 41 So the story starts with a guy.

Speaker 33 And I kind of love this guy.

Speaker 20 Birch Bai.

Speaker 30 And I especially love him because of his jingle.

Speaker 78 Hey, look him over.

Speaker 21 He's my kind of guy.

Speaker 63 His first name is Birch.

Speaker 79 His last name is Bai.

Speaker 3 He was a U.S.

Speaker 63 Senator.

Speaker 43 From Indiana, or who's your state?

Speaker 30 Like a very wholesome-looking kind of corn-fed guy.

Speaker 23 One has done before, so hey,

Speaker 44 Very handsome, charming, dimples, blue-eyed young guy.

Speaker 30 Like a John F. Kennedy monkey, as they would say.

Speaker 40 He literally gets called the Kennedy of the Midwest.

Speaker 83 Please join me in a warm welcome for the Democratic Senator from Indiana.

Speaker 67 Hi.

Speaker 67 Birch Vine.

Speaker 30 And.

Speaker 68 Thank you very much.

Speaker 84 He was very ambitious.

Speaker 85 I think we have a responsibility to see.

Speaker 30 Very, very ambitious.

Speaker 85 That this country is today and will be for future generations.

Speaker 87 What Abraham Lincoln described as the one last best hope. It's a rather significant responsibility.
It's ours,

Speaker 88 yours and mine.

Speaker 88 And I hope we don't shirk it.

Speaker 30 So he's 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.

Speaker 65 He's still wet behind the ears.

Speaker 89 Yeah, he's 34 years old.

Speaker 3 So Birch died in 2019, but we were able to talk to two of his former staffers.

Speaker 65 I'm Jay Berman. At one point, I was legislative assistant to Senator Birch Bayh of Indiana.
At another point, I was the chief of staff.

Speaker 89 And my name is Bob Blaymeyer.

Speaker 90 I spent the first 13 years of my adult life starting as a freshman in college working for Senator Birch Bayh.

Speaker 5 So a couple things to know about Birch.

Speaker 17 One.

Speaker 90 Birch had an ice cream addiction.

Speaker 5 He loved ice cream.

Speaker 90 Which was bane in my existence for many years.

Speaker 35 Why, wait, why?

Speaker 90 Because you're always on a tight schedule, and he was the dairy queen, and we had to go there.

Speaker 89 Because he carried a spoon in his briefcase.

Speaker 58 Seriously.

Speaker 82 And then the other thing,

Speaker 81 which we already mentioned, he was really ambitious.

Speaker 13 But he was a problem solver.

Speaker 90 He would see something that needed to be fixed and go after it.

Speaker 4 And when he gets to the Senate in 1963, he immediately has a problem.

Speaker 10 I mean, it's a kind of petty...

Speaker 8 personal problem, but he is put on the judiciary committee because he'd gone to law school.

Speaker 4 But as a junior member, he doesn't get to chair a subcommittee, which sounds like who cares?

Speaker 58 Sounds very boring. But

Speaker 25 if people want him, yeah, because that's how you actually get a little slice of power in Congress and how you can actually do things.

Speaker 33 Okay.

Speaker 65 Well, what happens is there was a subcommittee on constitutional amendments.

Speaker 44 And it was kind of a dud of a committee.

Speaker 65 Didn't do a lot of work.

Speaker 30 It was known as the graveyard where proposed amendments go to die. But the chair of the subcommittee suddenly dies.

Speaker 5 So the guy in charge of all the subcommittees is like, all right, I'm going to shut it down.

Speaker 4 We're just like spending money on this thing.

Speaker 82 It's pointless.

Speaker 65 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.

Speaker 65 I'll finance the committee out of my own Senate office budget.

Speaker 78 And Birch is just telling him, like, hey, come on.

Speaker 89 It's available now.

Speaker 59 Nobody wants it. Let me have it.

Speaker 30 I need something to play with.

Speaker 41 Because he's just looking for something to grab onto.

Speaker 82 Yeah.

Speaker 30 He doesn't have like a big plan for the Constitution. He's not that guy.

Speaker 91 But he's a charmer.

Speaker 5 So eventually the guy said, sure, Birch, you can have it.

Speaker 90 And it changed his life and it changed our country.

Speaker 4 Because two months later,

Speaker 92 bang. Here is a bulletin from CBS News.

Speaker 10 November 22nd, 1963.

Speaker 92 Three shots were fired at President Kennedy's motorcade in downtown Dallas.

Speaker 30 John F.

Speaker 58 Kennedy is shot and killed.

Speaker 92 Vice President Johnson will be taking the oath of office shortly and become the 36th President of the United States.

Speaker 17 Two weeks later in the New York Times, there's an article with the headline, Succession Problem.

Speaker 65 About how the terrible assassination of President Kennedy raised an issue of what if a president became disabled? Because Kennedy didn't die immediately.

Speaker 31 What if he'd gone into a coma or been brain dead?

Speaker 65 So disabled that he could not have carried out the duties of the president.

Speaker 16 Duties that could include the power to launch nuclear weapons.

Speaker 90 There was nothing in in the Constitution in this.

Speaker 30 People are like, shoot, we don't have a plan for this.

Speaker 32 Which

Speaker 59 was a problem.

Speaker 18 But

Speaker 90 there's Birch, the chairman of the subcommittee on Constitutional Amendments.

Speaker 8 And this seems like a constitution-level problem.

Speaker 79 Let's fix it.

Speaker 90 We got a problem. Let's fix it.

Speaker 8 But another problem, passing a constitutional amendment.

Speaker 5 is like the hardest thing you can do as a politician.

Speaker 65 Because you're required to get two-thirds of the house two-thirds of the senate 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 he pulled in lawyers political scientists to try to build

Speaker 5 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

Speaker 42 this amendment is

Speaker 30 easy. It's kind of a no-brainer amendment.

Speaker 76 We've got a problem. Let's fix it.

Speaker 59 So he takes his amendment.

Speaker 40 He goes to the House, the Senate, all the state legislators.

Speaker 57 And overwhelmingly, it passes

Speaker 59 a whole brand new amendment to the Constitution.

Speaker 65 And that is the 25th Amendment. Presidential inability and succession.

Speaker 4 Now, the kind of interesting thing is that if you have, have you heard of the 25th Amendment before?

Speaker 82 No. No.
Okay.

Speaker 28 So we're calling on Vice President Pence to invoke the 25th Amendment.

Speaker 81 It came up a lot during both the Trump presidency and

Speaker 10 it has come up a lot during the Biden presidency.

Speaker 93 Which would possibly remove him from office.

Speaker 35 Of like, oh, look at this guy.

Speaker 40 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?

Speaker 36 Like it's a sort of political weapon now, right?

Speaker 5 But initially, it was not supposed to be that. It was not political.

Speaker 94 It was just practical.

Speaker 86 Writing the 25th Amendment to the Constitution is one of the ways I have been able to serve both Indiana and the nation.

Speaker 75 And for Birch, you know, this young, ambitious guy, like this is a huge deal, like a founding father-level achievement.

Speaker 35 He's still in his third

Speaker 28 five. What's his theme song?

Speaker 43 Hey, look him over.

Speaker 28 He's just singing it to himself in the graveyard.

Speaker 58 Didn't he check me out?

Speaker 95 Okay, so he passes this constitutional amendment.

Speaker 47 And Jill says, because it's so hard to pass an amendment.

Speaker 30 Once one happens, people are like, oh, I forgot. You can amend the Constitution.

Speaker 81 And all of a sudden, it's like a window opens.

Speaker 30 And this burst of amendment activity.

Speaker 4 And suddenly, Birch's graveyard became like a dance club that everybody wanted to get in, and he's the bouncer.

Speaker 33 You know what I mean?

Speaker 28 I was thinking like Candyland.

Speaker 58 Yeah.

Speaker 21 He's the candy man, and everyone wants into Candyland.

Speaker 28 I kind of feel like it's more of a candy guy than a dance club guy.

Speaker 58 Sure, sure.

Speaker 76 Fair.

Speaker 81 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.

Speaker 5 Johnson.

Speaker 65 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.

Speaker 28 Faithless elector?

Speaker 35 Faithless elector.

Speaker 28 Like without religion?

Speaker 22 Uh, no.

Speaker 54 But.

Speaker 54 Okay, so

Speaker 45 here we are actually finally getting to the thing of electing a president.

Speaker 20 Okay.

Speaker 5 Wait, so most people don't actually realize this, but when you vote

Speaker 40 for the president of the United States, you're not actually voting for the president of the United States.

Speaker 5 You're voting for someone who then votes for the president of the United States.

Speaker 20 Oh.

Speaker 35 So those people are called electors.

Speaker 5 And basically how this goes is like you vote in your state. Your state has a certain number of these electors.

Speaker 32 electors, and then the electors take a pledge to vote for the candidate who got the most votes in your state.

Speaker 20 But

Speaker 65 a pledge is a pledge, and it could be broken.

Speaker 5 In the history of U.S.

Speaker 49 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.

Speaker 1 And Johnson, for a lot of reasons, just thought, okay, this is a problem.

Speaker 44 And Birch, you're a problem solver.

Speaker 65 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.

Speaker 34 But what happened?

Speaker 32 What happened was

Speaker 62 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.

Speaker 8 And the more he learned, the more he became sort of radicalized, convinced that this system, the Electoral College, that it's a ticking time bomb,

Speaker 4 and that somebody

Speaker 3 had to stop it.

Speaker 27 That's coming up after the break.

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Speaker 32 Latif

Speaker 32 Radiolab.

Speaker 4 Okay, before we get going, I'm curious,

Speaker 28 what do you, as a Canadian here on a visa, uh 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 it's a college it is that was i believe the first

Speaker 38 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 oh like a pot of whales It's like a pot of whales.

Speaker 76 Yes, exactly.

Speaker 96 Okay, so we left off.

Speaker 81 Birch by is now focusing his problem-solving gaze on the Electoral College.

Speaker 82 He's having these committee hearings and he's learning, right,

Speaker 50 why it exists, what it does,

Speaker 37 how it works.

Speaker 25 And so I think for us to be able to understand why all of this radicalizes him, we have to learn what he learned. We have to go back and understand the Electoral College.

Speaker 58 Okay, let's

Speaker 4 let's go.

Speaker 20 Let's go all the way to the beginning to explain.

Speaker 120 I thought we had started, but it sounds like we haven't even started anymore.

Speaker 60 No, we haven't even started.

Speaker 20 It's so wonky, but we're ready. You have me.

Speaker 81 I'm your candyman.

Speaker 43 I don't follow you anywhere.

Speaker 20 Okay.

Speaker 20 All right.

Speaker 37 So here we go.

Speaker 4 So here we are in the candy land that is Philadelphia 1787, the Constitutional Convention.

Speaker 40 And founding fathers are like, we're starting this new country.

Speaker 4 We're very excited about it.

Speaker 3 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.

Speaker 5 So we're going to have this person called the president.

Speaker 30 But how are we going to choose the president?

Speaker 20 That would require.

Speaker 47 some thought.

Speaker 29 Can I pause and take a little sip of Coke here? Yeah, of course.

Speaker 3 Go for it. By the way, this is Alex Kaysar.

Speaker 71 Also, I should say, even in our first conversation when I was talking to Jill.

Speaker 30 So there's a great book by Alex Kaysar called, Why Do We Still Have the Electoral College?

Speaker 25 She brought you up.

Speaker 64 And then basically every other interview we've done for this story, people have brought you up.

Speaker 29 That's what I tried to do in that book.

Speaker 75 So he wrote the book, Why Do We Still Have the Electoral College?

Speaker 29 And he's also a professor of history and social policy at Harvard University.

Speaker 40 But

Speaker 46 so anyway, anyway,

Speaker 29 they couldn't agree on a method of choosing the president.

Speaker 30 And so there are some ideas on the table.

Speaker 56 One idea was, well, we just came up with Congress.

Speaker 30 All right, well, Congress should just elect the president.

Speaker 29 But that's a bad idea. Then you lose separation of powers and checks and balances.

Speaker 30 Then the president would be answerable to Congress. Like, what if he runs for re-election? He needs to have their favor.
That's stupid. We can't do that.
That's a dumb idea. Thanks very much.

Speaker 30 So someone else in the room says, well, what about the people? And everyone's like, no, we can't do that.

Speaker 29 Look, you know, how is Farmer Johnson in a distant county going to know about some guy in Virginia running for president?

Speaker 30 It's 1787. People didn't know anybody beyond their own neighborhood or town.

Speaker 29 So what they decided to do was to take a break for a week.

Speaker 24 They just left Philadelphia.

Speaker 29 George Washington went fishing for the week. What? And they left behind a committee called, and you'll like this, it was called the Committee on Unfinished Parts.

Speaker 32 I kind of love that.

Speaker 33 Right?

Speaker 10 Okay, so these founders, most of whom you never heard of,

Speaker 81 weeks later, they are still stuck there in Philadelphia.

Speaker 28 All the cool guys are fishing.

Speaker 4 All the cool guys are out fishing and doing other stuff, and they have to figure this out.

Speaker 29 To get this thing done, they wanted to get it sent to the states.

Speaker 121 So they're like, okay, how do we do this? How do we pick a president? How do we do this?

Speaker 60 And then they figured it out.

Speaker 96 They were like, okay, how about we just copy-paste Congress?

Speaker 28 What does that mean?

Speaker 43 Well, it...

Speaker 23 How do you copy-paste

Speaker 8 like just plagiarizing? They're not going to plagiarize.

Speaker 60 They're just like, okay, we know everybody's already agreed on Congress, right?

Speaker 5 There's been a lot of debate, a lot of arguing.

Speaker 20 But what they did to make a government that everybody agreed on, to make Congress, is they started putting thumbs on scales for different groups of people.

Speaker 107 Thumb on a scale. Go over it.

Speaker 71 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.

Speaker 8 And so that's a little thumb on the scale for 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.

Speaker 3 The other thumb is for the South.

Speaker 71 They say, okay, you can count an enslaved person in your state as three-fifths of a person.

Speaker 74 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.

Speaker 29 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?

Speaker 29 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.

Speaker 29 If you think about it, each state has electors equal to the number of representatives plus the number of senators.

Speaker 76 Okay.

Speaker 29 And then the electors would convene in their state capitals and cast their electoral votes.

Speaker 5 And so the committee's like, bingo, job done.

Speaker 28 So that sort of seems smart to me.

Speaker 47 It is, under the circumstances, very clever solution.

Speaker 82 Yeah.

Speaker 8 So that also is stuff they put in the Constitution, right?

Speaker 60 So it's like there's this body of electors that vote for the president.

Speaker 7 Each state has a certain number of electors based on how many representatives they have in Congress.

Speaker 3 All of that is in the Constitution.

Speaker 32 What is not in the Constitution is how to convert the people's votes in the state into electoral votes.

Speaker 20 Do you do it proportionally?

Speaker 29 Where if you get 53% of the state's vote, You get 53% of the electoral vote.

Speaker 20 Right, right.

Speaker 32 Or you could do it by district.

Speaker 44 Each district in a state gets an electoral vote.

Speaker 66 But ultimately, the founders are like, we're going to let the states decide.

Speaker 107 That makes sense.

Speaker 28 That's like an important part of this country is that the states

Speaker 98 are making big decisions. So

Speaker 5 but that might be the biggest mistake they made in this whole process.

Speaker 79 And Alex says there is this pivotal moment pretty early on where the system we now now have

Speaker 20 starts to really take shape.

Speaker 29 In the 1800 election,

Speaker 4 between these two sort of juggernauts in the history of this country, Adams and Jefferson.

Speaker 29 Now, they have also run against each other in 1796.

Speaker 49 And in that election, which Adams won.

Speaker 29 Adams had gotten an electoral vote from the state of Virginia, Jefferson state.

Speaker 81 Because Virginia was doing district voting.

Speaker 66 Adams had won a district, so he got a vote.

Speaker 29 But in 1800, the Virginia legislature didn't want that to happen again. They saw a close election coming.

Speaker 37 And so the Virginia politicians got together and passed a state law that said, okay, we're done with this district system.

Speaker 20 From now on, the way our electors will vote will be.

Speaker 97 Winner take all.

Speaker 8 If you win the majority of the votes in this state, All of our electors will cast their votes for you.

Speaker 64 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.

Speaker 20 A little dirty.

Speaker 105 A little dirty. Some little smelly.
Yeah.

Speaker 27 The candy's gone smelly.

Speaker 81 Because what they're doing is erasing all of the votes of the people who voted for Adams.

Speaker 32 Yeah.

Speaker 29 No, exactly. And what's interesting when you look into the documents of it is they pass that law and then they attach to it a kind of apology for doing it.

Speaker 17 Effectively saying, we know this isn't really good or fair.

Speaker 81 We know it would be better for the country if we did not do this.

Speaker 20 But we're doing it anyway.

Speaker 29 So after Virginia did this, shockingly Massachusetts, John Adams state, retaliated and did a version of the same thing.

Speaker 2 And Alex says after that, the states...

Speaker 29 They're off to the races.

Speaker 61 Another state does it, then another state does it.

Speaker 21 And this is basically what the system is now.

Speaker 81 And what that system leads to is the feeling that your vote just doesn't actually matter.

Speaker 81 Because, like, if you vote for someone for president and then 50% plus one people in your state vote for someone else,

Speaker 4 your vote doesn't get counted. Like,

Speaker 82 for president, it means it's thrown out.

Speaker 71 It's basically effectively thrown out.

Speaker 44 And that is essentially happening to tens of millions of votes every presidential election.

Speaker 18 Right.

Speaker 33 Are you going to make us feel better about voting by the end of this?

Speaker 18 Or? Um,

Speaker 33 I think, I think so.

Speaker 20 I think so.

Speaker 122 It is with pleasure that I introduce Senator Birch by.

Speaker 31 Because I kind of think of Birch and what he was trying to do as a sort of beacon of hope.

Speaker 122 Thank you very much, Mark, 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.

Speaker 24 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 of the Electoral College, the fact that it wipes away all these people's votes, you know, all different kinds of things.

Speaker 35 But one of the things that these experts hit on over and over is that the system is actually fundamentally

Speaker 16 dangerous.

Speaker 122 And you may say, well, why is it dangerous? Well, basically, it's dangerous. The most dangerous aspect of it.

Speaker 122 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.

Speaker 29 And Alex says that's because when you have this winner-take-all system, it transforms the contest into a contest among states.

Speaker 29 Because once you have winner-take-all, then winning the state really matters.

Speaker 81 Winning as many people as you can doesn't.

Speaker 122 And because of this, the political leaders of both of our major parties know.

Speaker 20 You can lose the popular vote in the election.

Speaker 122 It doesn't make any difference if you're soundly defeated.

Speaker 64 So long as you win the right state.

Speaker 122 You're going to have enough electoral votes to be elected president of the United States.

Speaker 31 And this had almost just happened.

Speaker 30 In 1960? 1960 was one of those very close elections where if like, I think it was like 20 or 30,000 votes had gone differently in a few states.

Speaker 20 The loser of the popular vote would have won because of the Electoral College.

Speaker 4 And this is the thing that all the experts were saying was dangerous, which was the very thing that...

Speaker 66 terrified Birch.

Speaker 30 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.

Speaker 27 So, remember, in 1963,

Speaker 49 President Kennedy gets shot and killed.

Speaker 30 It's the height of the Cold War.

Speaker 30 There's continued racial unrest and police brutality. By 68,

Speaker 122 the whole world is watching the chance to crowd on the side.

Speaker 10 There's a protest at the Democratic National Convention, violence on the streets.

Speaker 58 Dr.

Speaker 9 Martin Luther King, MLK Jr.

Speaker 40 is assassinated.

Speaker 70 Shot to death.

Speaker 97 Robert Kennedy.

Speaker 1 So, Birch, he's watching all of this unfold.

Speaker 30 And he's just really worried.

Speaker 122 When we have an Electoral College system.

Speaker 10 That if we have a system that can take the loser and make them a winner.

Speaker 122 We tend to erode the confidence in the people of this country in their president and in their form of government.

Speaker 30 That is his huge concern, that at some point in the future, Americans will refuse to recognize the legitimacy of a president.

Speaker 36 And so once he came out of these committee hearings, learning what he did about the Electoral College.

Speaker 30 He says, you know what we need to do? We need to get rid of it. We don't need to tinker with it.

Speaker 82 We need to get rid of it.

Speaker 65 Yes, it should be one person, one vote.

Speaker 10 The direct popular election of the president.

Speaker 65 One person, one vote. It's the only plan that guarantees you that the candidate with the most votes will win.

Speaker 65 And from this point forward, he devoted himself

Speaker 65 to this cause.

Speaker 1 To take the Electoral College

Speaker 20 and burn it to the ground.

Speaker 66 That's coming up after a short break.

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Speaker 43 Okay, Latif, Annie, Radiolab.

Speaker 20 Back from break.

Speaker 39 Back from break.

Speaker 4 Can I tell you another fun fact about the Electoral College?

Speaker 33 Lativ.

Speaker 28 I would like nothing more.

Speaker 78 Okay, so take a guess, okay?

Speaker 20 Okay.

Speaker 91 What is the least amount

Speaker 32 of the popular vote?

Speaker 4 What is the least proportion, percentage of the country

Speaker 41 that could vote for you where you could still win the Electoral College?

Speaker 114 49%.

Speaker 4 So you think 49% of people have to vote for you to win the Electoral College?

Speaker 84 40%.

Speaker 28 No, I don't know. I mean, nothing makes sense.

Speaker 120 I mean, like, in a PS, I would say 40-something.

Speaker 41 23%.

Speaker 47 Wow. So if you get 50%

Speaker 8 plus one in all the smallest states,

Speaker 4 you could conceivably get 23% of Americans' votes and become the president.

Speaker 126 Hmm.

Speaker 28 That is shocking.

Speaker 39 Isn't that crazy?

Speaker 18 Yeah.

Speaker 7 Okay, so 23%, that would be like that has never happened.

Speaker 25 Okay.

Speaker 71 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.

Speaker 71 And

Speaker 71 besides those five times, it nearly happened in 1960. It nearly happened again in 1968.

Speaker 53 And so that year, 1968, Birch Bay thinks

Speaker 77 now is the time to launch this amendment to abolish the Electoral College.

Speaker 65 And having just done the 25th, he had some sense of it.

Speaker 3 And Jay, his chief of staff, said step one.

Speaker 65 Build a coalition.

Speaker 83 And so. Please join me in a warm welcome for the Democratic senator from Indiana.

Speaker 5 He's going to these nonpartisan groups.

Speaker 67 Senator Birch Bayh, giving speeches

Speaker 25 to the American Bar Association.

Speaker 122 That when the President of the United States is elected, the League of Women Voters, the Chamber of Commerce, we know with confidence that he is the President of the United States.

Speaker 90 Saying that we have a problem here.

Speaker 24 Again, Birch Bay staffer, Bob Blaymeyer.

Speaker 90 I'm telling you,

Speaker 90 it was so exciting.

Speaker 127 Senator Bay has launched a campaign

Speaker 20 establishing a nationwide movement to do away with the Electoral College hammering home this idea.

Speaker 85 Which was each of us, whether we live in Rhode Island or Texas, one word, Indiana, Alaska, equality. Each one of us ought to have the same opportunity to elect a president.

Speaker 85 It ought to be one person, one vote, and it seems to me there's no excuse for any other system.

Speaker 65 One person, one vote.

Speaker 90 Everybody's vote should count the same.

Speaker 44 And by 1969.

Speaker 88 Opinion polls show that around 80% of the people favor a more direct election of presidents.

Speaker 5 80% of Americans agreed with him.

Speaker 128 Buy intends to get Congress to pass a direct election law

Speaker 45 And so, 1969, his amendment goes in front of the House.

Speaker 65 And what happened was

Speaker 19 boom. Overwhelming.

Speaker 16 Huge victory.

Speaker 71 339 to 70.

Speaker 4 What?

Speaker 37 Easy pass. Wow.

Speaker 65 Unbelievable.

Speaker 19 It was just amazing.

Speaker 29 I mean, right now, it would be extremely difficult to get a House vote of 80% to declare what day it was or to declare Christmas to be a holiday.

Speaker 20 But

Speaker 29 as Alex Kesar points out, then the action switches to the Senate. And in the Senate, Birch hits

Speaker 20 a wall.

Speaker 5 A wall made up of two different groups of people.

Speaker 38 One of them was senators from small states.

Speaker 65 Now, small state senators, mostly Republican, said, oh, well, we get two votes automatically because we have two senators. And that was the compromise made at the Constitutional Convention.

Speaker 5 Remember, those two senators was the thumb on the scale for the small states.

Speaker 76 Right.

Speaker 90 So, I mean, think of Wyoming, Montana, South Dakota, North Dakota, these states that have these electoral votes of no voters.

Speaker 32 These two votes are a big deal.

Speaker 65 And the small state senators wanted to preserve these two electoral votes.

Speaker 17 So that was one group.

Speaker 42 And then the other group

Speaker 5 standing in his way were southern segregationists.

Speaker 8 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.

Speaker 8 It was almost like that same thing back at the convention with the three-fifths clause.

Speaker 16 Because white segregationists could use the black people in their state to count towards the state population, which gave them more electoral voters, more power.

Speaker 43 But at the same time, because of the system, the winner-take-all system, the overwhelming white majority would wipe out

Speaker 6 and erase the black vote.

Speaker 29 So it becomes something of an article of faith that the Electoral College is key to protecting the, quote, southern way of life.

Speaker 65 Senator James Allen of Alabama, he had a quote, something to the effect that the Electoral College is the South's only political advantage left.

Speaker 17 Let's keep it.

Speaker 87 The Senate has refused to shut off debate of the proposed constitutional amendment to elect presidents by a direct popular vote.

Speaker 45 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.

Speaker 87 Six votes short of the necessary two-thirds, and now electoral reform seems about ready to fall.

Speaker 8 But there was one last hope, which came in the form of a very unlikely ally.

Speaker 19 Nixon.

Speaker 20 Nixon.

Speaker 56 Republican President Richard Nixon.

Speaker 88 Whether there'll be any action up here on Capitol Hill, it depends pretty much on one man, Richard Nixon.

Speaker 25 And Nixon, even though he got elected by the Electoral College, he had said, It's obsolete.

Speaker 32 It's dangerous.

Speaker 19 It should go. Right.

Speaker 48 And Jay says Nixon knew how popular Birch's amendment was.

Speaker 71 He had seen that House vote.

Speaker 59 So overwhelming.

Speaker 65 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.

Speaker 64 And Nixon, being a Republican president, maybe he could put some pressure on these Republicans who are blocking the amendment.

Speaker 127 It'll take all the political clout a new president can muster to keep this new Congress from sweeping electoral reform under the legislative rug.

Speaker 30 But meanwhile,

Speaker 76 again, Jill Lapore.

Speaker 30 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.

Speaker 30 And Nixon has pledged that he will appoint a Southerner to the court.

Speaker 73 So early 1969, Nixon nominates a judge from South Carolina.

Speaker 80 Clement Hainsworth.

Speaker 30 And Hainsworth, he has this problem.

Speaker 90 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.

Speaker 73 And in the confirmation hearings, Birch

Speaker 44 planned on voting yes, confirming Hainsworth.

Speaker 90 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.

Speaker 90 He kept insisting he had done nothing wrong.

Speaker 44 And to Birch, it was pretty clear that this guy, if not totally corrupt, we got personal financial

Speaker 37 secrets. Yeah.

Speaker 77 And so Birch is like, all right, this guy is not fit for the court.

Speaker 38 And so... Good evening.

Speaker 88 In a severe setback to President Nixon, the Senate today firmly refused to confirm the Supreme Court nomination of Judge Clement Hainsworth.

Speaker 1 Birch by leads the charge against Nixon's Supreme Court nominee.

Speaker 92 President Nixon was obviously not pleased by what the Senate did to his nominee.

Speaker 92 The president issued a written statement in which he expressed disappointment and anger over the Senate rejection of Hainsworth.

Speaker 88 Hainsworth, the 10th man in history to be so rejected, the first since 1930.

Speaker 28 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?

Speaker 77 At this point, I don't think he knows.

Speaker 30 But Nixon says, God damn, goddamn Birchby. I'm going to go further south and farther right.

Speaker 30 So he does.

Speaker 30 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 for the Supreme Court.

Speaker 124 I have to tell you, I looked for a place to hide, but there was no one else there.

Speaker 5 This is Birch from an oral history from 2009 done by the University of Virginia's Miller Center, talking about the Carswell nomination.

Speaker 124 I have a good recollection how this all happened.

Speaker 124 Because I'd been sort of commissioned to lead the charge here, I got together in my office

Speaker 29 all of the groups.

Speaker 3 He said he got together union leaders, Jewish leaders, black leaders.

Speaker 124 I remember going around the room and saying, what do you think?

Speaker 124 Now we knew then that Carswell,

Speaker 124 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.

Speaker 124 We knew that.

Speaker 124 Was that enough?

Speaker 58 Pretty damning.

Speaker 124 Well, but you know, everybody had was exhausted fighting the Hainsworth thing. There was no stomach left for another battle.

Speaker 124 And as we went around the room, here these people who had thrown themselves on the spears of the

Speaker 124 opposition Hainsworth said, well, you know, Birch,

Speaker 124 Senator, there have been a lot of changes in the South since then. And,

Speaker 124 you know, Birch, you know, none of us want to be responsible for everything we said when we were 25.

Speaker 124 And it was that way all the way around until we got to Clarence Mitchell, who was the executive director of the NAACP.

Speaker 124 We got around to him and he said, well, gentlemen,

Speaker 124 it was almost as we were getting ready to leave. He said, gentlemen,

Speaker 124 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.

Speaker 42 Burch says that when he went home that night, he couldn't sleep.

Speaker 5 He kept thinking about what Clarence Mitchell had said in that room.

Speaker 42 And in that moment,

Speaker 5 he didn't know what to do. Like, here's Nixon, a potential ally for his amendment.

Speaker 65 Nixon had just been elected, okay?

Speaker 90 This is Nixon's first year as a president.

Speaker 16 And to shoot down another nominee of his.

Speaker 65 It would have been the first time a president had had two nominees defeated in 76

Speaker 65 years.

Speaker 4 It would humiliate Nixon, likely turn him against Birch, and kill

Speaker 5 his chance at abolishing the Electoral College.

Speaker 30 The thing the country least can see that it needs.

Speaker 90 There were several times when he said, if I do this, it's going to hurt me over here.

Speaker 56 Like, where if he votes no, it might hurt his amendment.

Speaker 89 Yes.

Speaker 79 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?

Speaker 24 Like, which thing gives you the best outcome?

Speaker 124 And I was rolling and tossing. In fact, I got out of bed and crawled into bed in the guest room.

Speaker 56 He didn't want to bother his wife, who was asleep.

Speaker 3 And he started thinking about, like,

Speaker 10 in their home, they had their son Evan.

Speaker 5 And he'd always been telling Evan, the way that we make change in this country is we work through the system.

Speaker 76 We always work through the system.

Speaker 124 Somehow or other, it came to me that

Speaker 124 if my face was black and Evan's face was black.

Speaker 56 And this guy, Harold Carswell, was sitting on the Supreme Court of the United States.

Speaker 124 And I said, son, we're going to work through the system. He'd say, Dad,

Speaker 124 the system's already said what it thinks about us.

Speaker 124 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.

Speaker 123 Judge Carswell's nomination died today.

Speaker 5 March 1970, while his amendment is still stuck in the Senate, Birch leads the charge against Carswell.

Speaker 30 And single-handedly destroyed his chance of confirmation.

Speaker 92 The Senate dealt President Nixon another embarrassing defeat, rejecting his second Supreme Court nominee.

Speaker 128 The end of the long fight to confirm.

Speaker 45 And so Birch's amendment sits and languishes in the Senate six votes short.

Speaker 81 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 who could maybe sway some of these Republican senators who were blocking Birch, Nixon never lifted a finger.

Speaker 44 He didn't do a thing.

Speaker 65 He never, ever called a single Republican senator and said, I'd like you to vote for direct popular election.

Speaker 87 Bay was asked if it were true the White House is not helping because of his fight against the president's Supreme Court nominees, Hainsworth and Carswell.

Speaker 87 Yeah, I'm not naive enough to suggest that it isn't a possibility, but that's a poor way to run a country.

Speaker 41 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

Speaker 45 and the very first name on that list

Speaker 18 is birch by no

Speaker 30 and that's the thing 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 it would absolutely have been ratified instead it fell six votes short and that was that

Speaker 20 but

Speaker 3 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.

Speaker 121 That's after the break.

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Speaker 99 Heyo, Lulu here.

Speaker 111 As you have likely heard, this summer the federal government defunded public media in America.

Speaker 23 Here at WNYC, that has resulted in a loss of $3 million each year that we cannot count on anymore.

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Speaker 119 Thank you so much for listening and standing with us when we need you the most.

Speaker 43 Latif, Annie, Radio Lab.

Speaker 131 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.

Speaker 131 Would you welcome the junior senator from Indiana, Senator Birch Bay?

Speaker 20 So 1970, Birch's election amendment fails, but during the 70s, he goes on to do some pretty momentous stuff.

Speaker 65 He passes a different constitutional amendment, the 26th Amendment. But the injustice of lowering the voting age to 18.

Speaker 126 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.

Speaker 126 Seems to me this is not the type of democratic system we ought to be proud of.

Speaker 39 That's a good idea.

Speaker 32 So that made for two amendments.

Speaker 90 Making him the only person since James Madison, the founding fathers, to write more than one constitutional amendment.

Speaker 20 Wow.

Speaker 28 That's amazing. Wait, was the voting age 21 before?

Speaker 20 Yeah.

Speaker 90 Also? Yeah, he wrote Title IX.

Speaker 40 Have you ever heard of Title IX?

Speaker 35 No.

Speaker 10 It's mostly known for women's college sports.

Speaker 65 But it had to do with the real issue of women in higher education.

Speaker 4 It's this legislation that basically says that any school that gets any public funding needs to treat men and women equally.

Speaker 76 It changed the country.

Speaker 5 But throughout all of this, the thing that he is just obsessing over and that he thinks would be his biggest legacy is abolishing the Electoral College.

Speaker 44 And in the late 70s, he thinks he has his best shot at doing it.

Speaker 7 And that's because

Speaker 5 Republican Richard Nixon.

Speaker 122 I shall resign the presidency effective at noon tomorrow.

Speaker 24 Watergate happened, so he's out of office.

Speaker 128 Now, James Earl Carter, Jimmy Carter, elected the next president of the United States.

Speaker 7 A Democrat from the South is now the president of the United States.

Speaker 48 When he takes office, one of the first things he does.

Speaker 92 President Carter sent

Speaker 59 is he tells Congress

Speaker 127 an abolishment of the Electoral College.

Speaker 3 We need to get rid of the Electoral College.

Speaker 78 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.

Speaker 107 Clear sailing, smooth sailing ahead. Right.

Speaker 78 They think they have the votes.

Speaker 58 But

Speaker 65 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.

Speaker 105 And they have joined the conservative South in support of the Electoral College.

Speaker 18 What?

Speaker 55 I didn't know if I was having a nightmare.

Speaker 91 This is another former Birch by staffer, Frederick Williams.

Speaker 39 Yeah, they didn't have to cold cock him like that.

Speaker 55 You know, he had no idea those guys were going that way.

Speaker 59 He's like,

Speaker 40 like, it's very much an at two Brutus kind of a moment, right?

Speaker 57 Totally.

Speaker 55 It made no sense.

Speaker 23 Okay, well, why are they still like, why would they do that?

Speaker 29 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.

Speaker 90 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.

Speaker 7 Can you spell that out a little bit more?

Speaker 123 Can you explain that?

Speaker 90 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,

Speaker 90 then they're having a real impact on the Electoral College vote.

Speaker 50 Because those states, like New York used to be a swing state.

Speaker 89 Yeah, and California too. Mississippi too.

Speaker 5 And so in these big crucial swing states, black voters and Jewish voters felt they had sort of an outsized power.

Speaker 29 I mean, Jesse Jackson, prominent black leader at the time, proclaimed, you know, the hands that picked the cotton have now picked the president.

Speaker 43 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.

Speaker 29 Many groups that you could name could become the decisive votes.

Speaker 27 Any minority in the right state at the right time could become extremely powerful.

Speaker 29 And thus to switch to a national popular vote would remove that power.

Speaker 8 And whatever group you belong to, you would just go back to being a tiny minority in the country as a whole.

Speaker 8 And the fear was from these black leaders and Jewish leaders in the 1970s is that political parties could then just ignore them.

Speaker 9 And there's this amazing moment in a committee hearing on Birch's amendment, and Birch is obviously present for it.

Speaker 10 The leader of the National Urban League, very prominent organization, Vernon Jordan, testified at the committee hearing.

Speaker 44 And he opens his testimony by saying, me and Senator Birch Bayh are very close personal friends.

Speaker 45 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

Speaker 123 and basically goes even further to say 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 develop defend uh vernon jordan his argument wasn't a hundred percent just hey black people are in these states, so we have some power.

Speaker 123 He has a good quote, too. He said, the electoral college system acts as a break to extremism.

Speaker 3 So we did also speak to this guy, Harry Roth.

Speaker 123 I'm director of outreach for Save Our States.

Speaker 20 A pro-electoral college organization.

Speaker 123 We defend the electoral college system, trying to educate lawmakers and their constituents.

Speaker 31 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.

Speaker 123 And, you know, and I mean, I wouldn't say 1979 was the height of racism in America. America, but, you know, Vernon Jordan, National Urban League, they were around for a while.

Speaker 123 They saw how bad things could get.

Speaker 123 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.

Speaker 123 But with the Electoral College, that makes it much more difficult. You have to pay attention to blacks.

Speaker 123 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.

Speaker 123 So they're important in a state like that.

Speaker 34 You 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 6 30 and 7 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.

Speaker 5 And it's hard to say exactly which meeting this occurred at and when it took place.

Speaker 91 But Burch tells this 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.

Speaker 25 That this hurts us in all sorts of ways and we're not letting you pass this.

Speaker 4 They even asked him to withdraw it.

Speaker 65 And Burch says, I've worked my whole life voting for measures to make you equal to everybody else.

Speaker 65 And you're sitting in my office telling me that you want your vote to count for more.

Speaker 65 Get the hell out of here.

Speaker 65 Wow.

Speaker 5 And Frederick says he would later talk to that same black leader, the one Birch kicked out.

Speaker 20 And said, look at man.

Speaker 55 The senator's been with you all the time, going all the way back to Carswell and Hainsworth.

Speaker 69 What are you doing here?

Speaker 55 He says, well, we have no permanent friends and no permanent enemies, just permanent interests.

Speaker 10 So basically what happens is these same black Jewish leaders kind of just go down the hall of the Senate.

Speaker 65 and start knocking on doors of a handful of liberal Democrats from big states.

Speaker 5 And those liberal Democrats, including a young senator from the small state of Delaware, Joe Biden, vote against Birch's amendment.

Speaker 71 And so in 1979, once again, his amendment fails.

Speaker 3 But this time, the wall that stops him is

Speaker 53 liberal Democrats, the few remaining segregationists, and small state Republicans.

Speaker 21 I don't know the degree to which you can say, but like, was that objectively true that they had more clout or sway as minority groups under Electoral College versus how much they would have had in the popular vote?

Speaker 29 It was probably true in the 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

Speaker 29 it simply was not a dominant pattern or a clear pattern.

Speaker 20 Oh, wow.

Speaker 47 So it was like a truth with a shelf life.

Speaker 29 Yeah, a very short shelf life.

Speaker 76 Hmm.

Speaker 28 Okay. So, like,

Speaker 28 what's like, what's Birch's next step?

Speaker 42 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.

Speaker 65 It's a sad story.

Speaker 20 I'm okay.

Speaker 47 Well, that's a, because it sounds like you all were very productive.

Speaker 35 You all got a lot done.

Speaker 65 Well, we, we, Burch Bry got a lot done,

Speaker 65 and we always describe this as the one that got away.

Speaker 24 Like, this is the thing you would think about.

Speaker 17 Yeah, yeah.

Speaker 65 It's his, it was, he said, it was his greatest regret.

Speaker 76 Huh. Wow.
Yeah.

Speaker 40 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 asks himself, like, what could I have done differently?

Speaker 3 What could I have done to

Speaker 71 keep that from happening?

Speaker 5 And I don't know, like from even what I've read, from what we've read, like

Speaker 48 it, it doesn't feel like there was anything he could have done differently because this was just, this is the thing about the Electoral College.

Speaker 44 It's distributing power, right?

Speaker 71 And

Speaker 25 that's the whole thing about the Electoral College that Birch didn't like, that it was distributing power.

Speaker 16 He thought power should be equal.

Speaker 8 And that gets to this kind of central question of democracy, which is like, should you put thumbs on scales?

Speaker 37 How do you do it?

Speaker 71 And for which people?

Speaker 39 And for how long?

Speaker 8 And who gets them and who doesn't?

Speaker 91 And how hard do you press that thumb down?

Speaker 8 Those are fundamental questions.

Speaker 64 And they're really hard questions to answer.

Speaker 28 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.

Speaker 25 Yeah, really hard.

Speaker 71 And Jill even pointed out that after Birch's amendment failed in 1979, like, that was kind of it.

Speaker 30 It's a 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?

Speaker 30 Do we even still do public opinion surveys about it? You know?

Speaker 30 And the thing is,

Speaker 33 Birch Bay was right

Speaker 30 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 a president.

Speaker 30 And it doesn't matter which side you favor, you cannot favor an election

Speaker 30 where we can't all agree on the result.

Speaker 51 This election is close. Everyone knows that.

Speaker 132 In the race to 270 electoral votes, every vote matters. If Harris were to get Wisconsin, Michigan, Pennsylvania,

Speaker 52 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. Harrison wasn't the battleground state of North Carolina.

Speaker 133 Candidates are fighting to win key Midwestern states. South Asians in the state are the largest and fastest-growing Asian voting bloc there.
Like Michigan.

Speaker 68 Both are determined to get as much of the Union vote there as they can. The Democrats, if they could see huge African-American enthusiasm, they'll continue to play there.

Speaker 68 This tells you it's winning the election. Both campaigns agree.
Look at all the spending in Pennsylvania. It's about evenly matched.

Speaker 68 But then Georgia, Michigan, Wisconsin, Arizona, North Carolina, and Nevada. Are the Democrats behind in North Carolina waiting to see if they really need it?

Speaker 134 Waiting to see if the Harris campaign will put significant money into North Carolina. The Trump campaign puts more money into Germany today.

Speaker 70 We're going to watch these.

Speaker 53 Matt Kilty and I reported this episode. Matt Hilty and Simon Adler produced it.

Speaker 5 Matt Kilty, Simon Adler, and Jeremy Bloom contributed original music and sound design.

Speaker 71 Jeremy Bloom mixed it.

Speaker 5 Diane Kelly fact-checked it.

Speaker 66 And Becca Bressler and Pat Walters edited it.

Speaker 77 We first heard about this story from Jill Lapore, who is writing a book about the Constitution coming out next year.

Speaker 53 In the meantime, you can read her magisterial history of the United States, These Truths.

Speaker 71 We've linked to that on our website, along with Bob Blaymeyer's Burge Bye biography, Alex Kaystar's book about the Electoral College, and so much more.

Speaker 67 Even Burge Bye's little jingle is on there.

Speaker 53 What an earworm that is.

Speaker 71 The last thing I have to say, if you're living in the United States and you are able to, please go vote.

Speaker 66 Peer pressure others to do the same.

Speaker 8 Thank you so much for listening and good luck to us all.

Speaker 97 Hi, I'm David and I'm from Baltimore, Maryland. Radio Lab was created by Jad Abumrod and is edited by Soren Wheeler.
Lulu Miller and Latif Nasser are our co-hosts.

Speaker 97 Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, Becca Bressler, W.

Speaker 97 Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nyanam Sambandan, Matt Kielty, Annie McEwen, Rebecca Lacks, Alex Neeson, Sara Kari, Sarah Sandback, Arianne Wack, Pat Walters, and Molly Webster.

Speaker 97 Our fact checkers are Diane Kelly, Emily Krieger, and Natalie Middleton.

Speaker 135 Hi, this is Ellie from Cleveland, Ohio.

Speaker 135 Leadership support for Radiolab Science Programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation Initiative, and the John Templeton Foundation.

Speaker 135 Foundational support for Radio Lab was provided by the Alfred P. Sloan Foundation.

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