From The New York Times, I'm Michael Barbaro. This is a daily. Today, in two of the past five presidential elections, the Electoral College has awarded the White House to the loser of the popular vote, raising questions about the legitimacy of how America picks its leader. Editorial board member Jesse Wegman on the origins of that system and just how close America came to dismantling it.

It's Thursday, October 22nd. Jesse, I think by now everyone understands that President Trump won the White House four years ago by losing the popular vote and winning the Electoral College vote, but can you remind us of the specific math involved in that split?

Sure. I mean, what's amazing about it is he didn't just lose the popular vote. He lost it by a huge number.

Nearly three million more people voted for Hillary Clinton than for Donald Trump in 2016. And yet, because of 77000 votes in just three states in the upper Midwest, Pennsylvania, Michigan and Wisconsin, Donald Trump wins the entire presidency.

The math there is very hard to wrap your head around seventy seven thousand somehow outweighing. Three million. It's smaller than the size of a college football stadium, and it decided the election for the entire country, which is a legitimately strange way to conduct a nationwide presidential election.

And I think the question everyone has and what we want to talk to you about is how we developed such a peculiar system in the United States for picking a president, one that allows for the popular vote the majority's will to be ignored or outvoted by a minority of voters. And it turns out you are an expert in this area, pretty much the expert in this area. So tell us that story.

Right.

So in 1787, the framers who come to Philadelphia to design our new constitution had no idea how to pick the leader of a self-governing republic. No one had done it before, certainly not on this scale. And they argued about it almost from the first day to the last day of the Constitutional Convention, four months over the summer of 1787.

Their concern was that most people wouldn't know national political candidates. They knew the people in their local communities because that's where they lived. That's where they spent all their time. They didn't travel. They didn't have national media. So they wouldn't know political candidates on the national level. So that leads to this intermediary body of what they called electors.

Just who are these electors and what is their precise role in picking the president?

Will the idea that the framers had was that they would be this body of elite, well-educated men, you know, people who had been mayors or judges or war generals, and that they would come together and they would deliberate and decide for themselves who was the fittest person to be the president of the United States. And so to some degree, it might just be based on their preferences, right? Well, you know, it's interesting, the Constitution is actually silent on this matter.

What the Constitution does provide for is how many electors each state gets. And it's a simple mathematical calculus. A state gets the number of electors as it has members of Congress and it's two senators. So you just add those two numbers together and that's the number of state gets.

Beyond that, the constitution left everything up to the states. The state legislatures could decide for themselves how to choose these electors, how to award them to the candidates. It was all up to them. They didn't have to give the voters of their state any say at all in choosing the president. So in the end, voters themselves have no constitutional right to play any role at all in the selection of the president.

Right. So from the start, this is envisioned as a pretty elite and removed group of people who have been entrusted by the framers to make this decision on behalf of voters who are basically cut out of this process. That's the Electoral College at its birth. Exactly.

You know, the founders themselves were elite white men. And so it was natural for them to think that they were the best to decide. Many of them were slaveholders.

And I think that, you know, reminds us of one of the most egregious examples of how the Electoral College was not representative of the people. Remember, you know, one of the key compromises that the Constitution was the three fifths clause, and that was the clause that allowed the slaveholding states to count their slaves as three fifths of a white person for the purposes of representation in Congress that transfers over into the Electoral College. And that extra power is hugely important.

It gives the slaveholding states an extra 12 or more electors in the Electoral College and again seems to highlight just how disconnected the Electoral College is from any modern understanding of democracy and letting the people pick the president. Exactly. So, Jesse, how do we get from this version of the Electoral College so divorced from voters to something closer to what we have today in which voters do play a meaningful role in how the Electoral College works?

Well, in the early years, states were experimenting with all sorts of different methods of using the Electoral College. But within a few decades, they had very quickly shifted to letting the people of their state, the eligible voters anyway, vote for the electors and then awarding those electors in a manner called winner take all. And it was in place largely by the early 20s.

So explain winner take all as a concept. Sure. I mean, it means exactly what it sounds like, which is that a state gives all of its electors, 100 percent of them, to whichever candidate gets the most votes in that state. And what that means is every voter in that state who voted for somebody other than that candidate is essentially erased when the electors cast their ballots.

So this is more or less the system we still have to this day. Yes, that's right. So this winner take all system, this is not something envisioned by the framers. It seems like it kind of came to us in a pretty haphazard way. Right.

You know, people like to imagine that the system that we use today was handed down to us from the framers. And in fact, the framers didn't talk at all about the winner take all rule. It didn't come up at the convention. And when they saw it start to be adopted in the States in the early eighteen hundreds, they were horrified. James Madison, the man we think of as the father of the Constitution, tried to pass a constitutional amendment prohibiting the use of winner take all rule because he saw how corrosive it was to a race up to half of voters in a state.

It sounds like he didn't succeed. He didn't say Americans more or less make peace with this winner take all system, even though it is routinely discounting tons of votes for the losing presidential candidate.

That's right. And what's also happening in the same time is that an American democracy that in the earliest years only represented a tiny percentage of people, is expanding consistently.

So even as you have that electoral college with the winner take all rule, you are also expanding American democracy.

At the same time, you have a civil war to end slavery and to make citizens and voters of black Americans. You have the women's suffrage movement, which results in giving the vote to half of the adult population who didn't have it before. All of these things are making American democracy a truer and fuller expression of the ideals of the Declaration of Independence. And meanwhile, in the background, you have this Electoral College system with the winner take all rule that is consistently eliminating millions of Americans votes.

Right.

But it sounds like that inconsistency is not so present in the civic discourse. That's right.

Nobody really talks about it or even understands it until the 1960s when the civil rights movement burst into full bloom and suddenly Americans are thinking about their democracy in an entirely new way.

Few political leaders at the age of 40 to have packed in so much action, as has our speaker today and then into the middle of all of this upheaval, farmer, soldier, lawyer, legislator comes a first term senator from Indiana named Birch Bayh.

It's a privilege for me to have the opportunity to share some thoughts with you as individuals and to starting in 1966, Senator Bayh begins an effort to abolish the Electoral College by constitutional amendment.

I think it's being kind to say we are hypocritical as a nation to proudly beat our chest and proclaim ourselves to be the world's greatest democracy and yet to tolerate. And that's what we do tolerate, a presidential election system in which the people of the country don't vote for president, never have and never will under the present system. He sees it as the last step in that arc of democratization. There is a great danger with the present Electoral College system of electing a minority or a non plurality president of electing a president who has fewer votes than the fellow he's running against.

So he begins holding hearings. He begins talking to experts.

Senator, I understand your subcommittee on constitutional amendments has recently concluded hearings on Electoral College reform.

By 1968, 80 percent of Americans are on board. They want a national popular vote for president.

I think it's fair to say that we have a better chance today to get this revision in our electoral process than we've ever had before.

I think this includes Republicans. It includes Democrats. Everybody is on board.

And there's only one proposal.

And so one that I have made, it's been endorsed by the Bar Association, the Chamber of Commerce, all the labor organizations, and let the people directly vote for the president the same way they vote for their official by did something that no one in American history had done to that point, which was he tied the electoral colleges inequalities to the expanding equality of the representative democracy.

And that was the moment at which everyone saw it most clearly and thought we need a new system. So finally, we have the election of 1968. And that was the last straw for the Electoral College for most Americans, because what happened in that election is that the race between the Democrat, Hubert Humphrey and the Republican Richard Nixon was nearly thrown into chaos by a third party candidate named George Wallace in the name of the greatest people that have ever tried this earth.

I draw the line in the dust and toss the gauntlet before the feet of tyranny. And I say segregation now, segregation tomorrow and forever. He was the governor of Alabama and a staunch segregationist today on Face the Nation.

George Wallace, former governor of Alabama and in the late 1960s, he doesn't really have a political party anymore. He runs as a third party insurgent governor, despite your own optimism about your chances.

Every poll, every indicator of national opinion shows that you yourself have no hope to win the presidency. Your critics contend, therefore, that you're deliberately adopting the role of spoiler that is trying to throw the election into the House of Representatives.

His goal wasn't to win the presidency himself. He knew he couldn't do that.

Well, let me say this, that, yes, I'm in the in the race to spoil, but not to spoil in the sense that you are talking about is the spoiler chances of both national parties electing a president? Well, let's try. That's, of course, what we are doing.

And what he wanted to do was to stop Nixon and Humphrey from winning an Electoral College majority and thus force them to cut deals with him in exchange for his support.

So we have everything to gain and nothing to lose. OK, Governor, let's ask another.

It was actually a brilliant plan to weaponize the mechanism and the design of the Electoral College to enhance the power of segregationists in the south over everybody else in the country.

So Wallace's candidacy was designed to deliberately exploit the weaknesses, the vulnerabilities, the quirks of the Electoral College system. It feels like dating back all the way to the three fifths compromise in the way that it gives the South a lot of sway. Exactly.

So Wallace's candidacy fails in the end, but he got close enough.

We came that close to viewing the spectacle, a tragic spectacle that millions and millions of Americans were completely horrified at the system that they had for electing the president.

One man with forty six electoral votes, free independent electors able to go from 1st Nixon to Humphrey and back and forth carrying the message. All right, gentlemen, what am I bid to make you president of the United States?

Then you get to late 1968, early 1969, even Richard Nixon, who's now the president who won under the Electoral College, is on board with eliminating it and replacing it with the popular vote.

There is an unprecedented push to abolish the Electoral College through an amendment to the Constitution. Senator Bayh leads this push.

But remember, to get a constitutional amendment passed, you need to get it through both houses of Congress with two thirds support, and then you need three quarters of the states, 38 states to ratify it.

So that's a pretty heavy lift. But in late 1969, the House of Representatives, for the first time in American history, passes an amendment overwhelmingly to abolish the Electoral College, replace it with a popular vote.

It looks like there's support in close to enough states to ratify this. The only hurdle remaining is the Senate. Mm hmm. And so what happens in the Senate?

The amendment gets filibustered to death. Three Southern segregationist senators lead the charge to essentially block any debate on the Electoral College, and they end up killing it a year later in September of 1970.

And why would these segregationist senators care so much about blocking this amendment?

Well, remember, the country in the 1960s is going through these massive political and racial upheavals where, you know, Jim Crow is finally being killed off through the Civil Rights Act and the Voting Rights Act.

These guys, who are the descendants of slaveholders themselves, had gotten used to their black voters not existing because of winner take all. You know, there was a majority of white people in the state. They knew that they would always control their state's voice in the vote for president.

And if you had a popular vote for president, they knew that those black people in their state would have just as much voice in choosing the president as they did.

Hmm. So three senators from states that have long benefited heavily from the outsized power of their presence in the Electoral College and who supported it sounds like segregation. They block the will of the majority of Americans to create a voting system in which the will of a majority of Americans would become the method for picking a president.

That's right. And the best effort we've ever had in American history to abolish the Electoral College, to elect the president by a popular vote and vindicate the principles of the Declaration of Independence dies on the floor of the Senate in a filibuster in September of 1970. We've never gotten that close again.

We'll be right back. I'm Christina Warren, a long time tech reporter, ever since I wrote my first lines of code as a teenager. I've known the technology can empower us to change the world. Now I'm the host of Networked the 5G Future, a new podcast from Verizon and T Brand at The New York Times on Networked. I'll connect with industry experts to learn how Verizon 5G can transform sports, health care and all the ways we work, live and thrive.

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Hey, everyone, it's a stat Herndon political reporter for The New York Times debates can reveal a lot about the candidates. They can also fly by super fast and get a little confusing. I'm sure a lot of you are planning to watch the debate tonight. But if you're not sure where to watch it yet, consider watching live with us at NY Times dot com or in the New York Times app. Alongside video of the event, we'll be discussing and analyzing what we're hearing in real time.

That means you get the full muscle of the New York Times newsroom brought straight to your couch. A group of seasoned political reporters and a small army of fact checkers at your service will be looking at the truth. The not so truth will give some context about what the candidates are saying. And we'll also have a little bit of fun. If you want to join us tonight, go to NY Times dotcom or download The New York Times at. So, Jesse, if there was such broad and bipartisan consensus about the need to scrap the Electoral College in the 1970s, why is nothing ever done over the next five decades, presumably these segregationist senators leave the Senate.

So how is it that that consensus you just described unravel so quickly?

Well, one answer is that the public energy for massive large scale electoral reform doesn't linger for long. Right. There are bursts of it and then it dies out quickly. So you really have to take advantage of this as Bertsch by, I think, understood and tried to do. But when that effort failed, it was very hard to rekindle the spirit.

The other factor here is that the Electoral College lined up with the popular vote in all of the years from 1970 onward. So Americans don't really see the distortions caused by the winner take all rule.

It looks like a system that's basically working. Then we get to 2000 from is Eyewitness News.

George W. Bush is preparing his move to the White House, while Al Gore says not so fast.

So in 2000, remember that we knew on election night Al Gore had won the popular vote in the country by what ended up being about half a million votes.

Right. There is the possibility, of course, that we'll have that split between the popular vote and the electoral vote.

But because of that winner take all rule in the Electoral College, Florida, which was an extremely close state that George Walker Bush has won Florida, ends up going to George W. Bush by just 537 popular votes. Those 537 votes end up giving George W. Bush all twenty five of Florida's electors.

Twenty five very big electoral votes, zero go to Al Gore.

That's the winner take all rule in action. George Bush, governor of Texas, will become the 43rd president of the United States. So suddenly Americans realize, oh, our system for picking the president really is screwy.

And folks, in the year 2004, please, could you make up your minds a little more?

I think we can't take another election like this where we are letting people win the White House who have lost the popular vote in the whole country. But of course, we know that this did not lead to a major set of reforms around the Electoral College.

Yes, but I wonder why that was, Jesse, because it would seem like a moment in which there's a major split between the Electoral College and the popular vote would revive that 1970s appetite for change.

Well, there was shock and there was outrage about how that election went. But remember, within nine months, the September 11th attacks happened.

Then you have the war in Afghanistan, the war in Iraq, and Americans basically get distracted and focus on other issues until 2016.

Huge news, actually. The AP now projecting that Donald Trump has won the state of Pennsylvania. That is the race, frankly, when the same thing happens again.

Trump carried at least two hundred seventy nine Electoral College votes to Clinton's two hundred eighteen, although because Hillary Clinton won the popular vote by almost three million votes.

But this time the popular vote loser loses by six times as much as happened in 2000.

And yet, Jesse, once again, there is not a serious effort at reforming this deeply flawed system.

Well, now, twice in 16 years, the same party has benefited from the Electoral College and the winner take all rule and the same party has suffered from it. So it really seems like a partisan issue now in a way that it never had before before Election Day 2000. This was not a partisan issue. But, you know, by 2016, it looks to all of us today like, oh, of course, Republicans like the Electoral College and Democrats don't.

The truth is that people like the Electoral College when they think it's going to help them win. And I think that is now the biggest hurdle to any kind of reform.

Right. Because what incentive does half the country, anybody who's a Republican Party member, have to reform the system that keeps giving them an outsized place in picking a president?

And that's the unfortunate thing, although I think that the key thing that people need to remember is that the Electoral College hurts basically everybody when winner take all is used, it creates two kind of states. It creates safe states, which are most states, states where nothing that any candidate does is going to change the outcome. Those states get completely ignored. Their interests get ignored, their fears get ignored. The candidates don't pay attention to them.

The only states that matter are the states we call battleground states, because those are the states where a candidate can actually move enough votes to switch all of the electors in that state from one pot to the other. And as a result, candidates focus all of their attention, all of their advertising dollars, all of their policy platforms on the interests of voters in those states and sometimes on just a sliver of voters. I mean, look at what happened at the debates.

You yourself said on multiple occasions when you were running for president that you would ban fracking.

So, first of all, I will repeat and the American people now that Joe Biden will not ban fracking, that is a fact.

More taxes, more regulation banning fracking, abolishing the candidates spent five or ten minutes debating fracking and who was supporting fracking and who didn't support fracking. I mean, fracking is an important issue, but it's not that important that they should have ignored all the other issues that other states care about, such as climate change or things that matter to tens of millions of Americans.

Instead, we're talking endlessly about this issue that affects, you know, a relatively small number of people in mostly in western Pennsylvania, which happens to be a battleground state.

Mm hmm. So you're saying while people may view the Electoral College right now as a. Read issue or a blue issue is a Republican issue or a Democratic issue.

You're saying anyone who doesn't live in a battleground state in Pennsylvania or Wisconsin or Florida should be upset with the system and feel invested in remaking it because of the way that it not just cancels out their vote, but cancels out their presence in a presidential race and their interest in how a president governs for four years. That's exactly right.

And that's roughly 80 percent of Americans who don't live in battleground states and yet who should count just as much as those who do live there. Why should a New Yorkers vote or a Texans vote or a Californian's vote count less than, say, someone in Florida or Michigan or Wisconsin? It makes no sense. The president represents all Americans equally, no matter where they live. And yet, because we have these winner take all rules, presidents can effectively act as battleground state presidents, former presidents for literally six states.

Exactly, but, Jesse, even if lots of Americans, the 80 percent you just mentioned, do become offended by the system, wake up and say, I want to toss out the Electoral College. There's still the issue of just how much bipartisan support would be required to do it in Congress and in the states. And Republican lawmakers no doubt being quite resistant to that. It's true, but remember, the winner take all law is a state law, they can change those laws whenever they like.

And if they do that, we can actually get to a popular vote for the president without touching the constitution. So you're saying there's a workaround to what Senator Biden tried in the 1970s that would effectively get you to where many people want to go? Well, I wouldn't call it a workaround.

There's an idea of how to do it differently, which has been circulating among the states for the last 15 years or so. This is called the National Popular Vote Interstate Compact. And this is states agreeing to award their electors differently. They give all of their electors to the candidate who wins the most votes in all 50 states and D.C. combined. And what that means is the candidate who wins the popular vote becomes the president, and it kicks in when states representing a majority of electoral votes join.

Hmm. How many states representing how many Electoral College votes have joined this? Agreement so far, right now, there are 15 states plus D.C. that have joined and they total together 196 electoral votes. So there's 74 votes short of the 270 you need to become president. So with states representing 74 more electoral votes, this agreement would take effect and would elect the president by effectively a national popular vote.

Mm hmm. I'm curious which states you think might get this compact to that 270 and are they controlled by Republican legislators?

So that's part of the problem right now. All the states that have joined this this agreement are led by Democrats. And so it looks from the surface like a Democratic plot to overtake the election and to, you know, install Democrats in the White House. But actually, in 2016, there were three Republican led states that were on the cusp of joining this agreement. And then we had the election and everybody ran back to their partisan corners.

So once again, and this is a familiar feeling in this conversation, we're hitting a wall where it looks like America is going to be stuck with this winner take all electoral college system for the foreseeable future.

It does look like that. I agree. But I think it's really important to remember that states do change over time. And right now what we're seeing is some really big and important Republican majority states are shifting demographically in ways that are very likely going to turn them into Democratic majority states in the very near future. Texas has 38 electoral votes. It is the biggest prize for Republicans right now every four years. And Texas is going to turn blue. It's it's probably not going to happen this year, but I think it's very possible that it happens in twenty twenty four or twenty twenty eight.

The fact that we're talking about it at all this year should freak Republicans out because suddenly they are going to become the minority in their state in the presidential election and their votes will now be erased completely from that tally, the way that Democrats votes are now.

If Republicans can't win Texas, I think their paths to an Electoral College victory are basically eliminated.

But then the question becomes, would Democratic support for keeping the system start to grow?

Would they forget the wounds of 2010 and 2016 if suddenly the system begins to win for them?

I think that's always a risk and it's what we've seen in the past. I think at this point, given the traumas of twenty, twenty, sixteen, Democrats are not going to so quickly jump back on board with the Electoral College. I think they've seen how much damage it causes close enough in history that they will stick with this reform.

Hmm. So in your head sometime soon, maybe it's next year, maybe it's four years from now, maybe it's eight years or six years. The electoral wounds suffered by both parties will lead Republicans and Democrats in each state to decide the system really doesn't work and sign up for this state by state compact that would assign Electoral College votes to the winner of the popular vote. That's how you see this playing out over time.

Exactly. So then I think, you know, we're two hundred and thirty years into this system of electing the president. When does it end? When do we change it? And, you know, I mean, I just think it's going to have to be when both parties have suffered enough in a short enough time period that they realize that it doesn't help anybody. And then I think we have the opening to switch to a system in which everybody counts equally and everybody's vote matters and the person who gets the most votes in the country wins the election.

So when there is enough back to back pain for both parties is when this all finally changes. Yes, I would like to say that everyone believes in political equality and majority rule in these grand principles of representative democracy. But in the end, it comes down to people suffering enough that they want to change the system.

Well, Jesse, thank you very much. We appreciate it.

We'll be right back. Do you remember when texting meant tapping numbers to spell out every word or the first time you streamed a playlist without downloading Empathy's? I'm Christina Warren, the host of Network to the Future, a new podcast from Verizon and T Brand at The New York Times. Each new network improves our lives in ways we couldn't imagine and to hear how 5G could reshape how we work, play and connect. Listen to Networked the 5G future wherever you get your podcasts.

Here's what else you need to know today. The maker of OxyContin, Purdue Pharma, has agreed to settle a major case brought by the federal government by pleading guilty to criminal charges and paying penalties of up to eight point three dollars billion. The case revolves around illegal payments that Purdue made to doctors so that they would prescribe its painkillers, including OxyContin, a highly addictive drug responsible for thousands of deadly overdoses across the country.

Perdue has demanded that the federal charges against it be resolved before it reaches an even larger settlement with thousands of cities, tribes, states and individuals who claim that the company's aggressive marketing of OxyContin directly hurt them and their communities. And in his latest embrace of gay people. Pope Francis appeared to break with the position of the Roman Catholic Church by supporting civil unions for same sex couples.

Officially, church teachings consider homosexual acts, quote, disordered, and the church is opposed to gay marriage. But in comments made to a documentary filmmaker, Francis unexpectedly called for a civil union law to protect gay couples.

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