The following excerpt from “The Illegitimate President: Minority Vote Dilution and the Electoral College,” by Matthew M. Hoffman is presented under the fair use Section 107 of the U.S. Copyright Act. The article was published in The Yale Law Journal, Vol. 105, No. 4 (Jan., 1996), pp. 935-1021. I have removed the extensive footnotes to facilitate presentation in the blog format.
The Free Elector Movement of 1960
By 1960, civil rights issues had erupted into the foreground of American politics. With Congress beginning to place anti-discrimination laws at the top of its agenda and the White House using federal troops to enforce the Supreme Court’s integration decree, the fears that Collins had expressed ten years earlier of a “Second Reconstruction” seemed to be coming true. And once again, Southerners attempted to use the electoral college to block it.
By 1958, white Southern politicians were laying the groundwork for what they described as a “free elector” plan — essentially a variant of the third scheme proposed by Collins. Rather than running their own candidate for President, however, proponents of this plan sought to change state law and party rules to allow the Democrats in Southern states to nominate a slate of presidential electors not pledged to support the national party nominee. Although support for the free-elector plan initially ran strong in several Southern states, the Democratic nominee, John F. Kennedy, managed to defuse the rebellion by selecting a Southerner, Senate Majority Leader Lyndon B. Johnson of Texas, as his running mate.
Even with Johnson on the ticket, however, the unpledged-elector movement scored significant victories in two Southern states. In Alabama, Democratic voters chose the eleven members of the Democratic electoral slate in a primary election and a runoff. Only five of the winning candidates were pledged to support the national party’s nominee; the remaining six were unpledged. In Mississippi, Governor Ross Barnett, a leading backer of the free-elector plan and an ardent segregationist, succeeded in a move to have two slates of Democratic electors — one pledged to Kennedy and Johnson and one unpledged — placed on the ballot. All told, then, fourteen unpledged Democratic electors were elected from the South: six from Alabama, and eight from Mississippi, where the unpledged slate defeated the Kennedy-Johnson slate.
Efforts to manipulate the electoral system to block civil rights initiatives did not cease after the popular vote, however. Although Kennedy appeared to have defeated Nixon in the popular vote and to have gained a slight electoral vote majority, allegations of fraud and widespread irregularities at the polls meant that the results were far from certain. If Kennedy had lost Illinois, he would have had only 273 electoral votes — only four more than he needed to win the election. In that scenario, if the unpledged electors could have persuaded at least four other electors to join them, they could have denied Kennedy the White House, or more likely, could have wrested concessions from him on civil rights. Shortly after the election, an Alabama lawyer called for all of the Southern electors to meet with Kennedy to point out the “vital importance of Southern electoral votes in his attaining the Presidency.” Alabama newspapers backed the idea of an electoral revolt on openly segregationist grounds, condemning “[f]ederal efforts to force racial mixing in New Orleans” and the “enslavement” of Southern children as a result of school integration efforts. Mississippi Governor Barnett sent out letters to electors in six other states asking them not to vote for Kennedy. In Louisiana, leaders of the White Citizens Council sought to have the state’s electors withhold votes from Kennedy, stating that he had “gone wild on integration.”
Ultimately, the fourteen unpledged electors decided to cast their votes for Senator Harry F. Byrd of Virginia, the man who four years earlier had pledged “massive resistance” to the Supreme Court’s school desegregation decisions. Resistance to civil rights reforms was the guiding principle behind their choice. Calling on electors from other states to join them, the unpledged electors declared that Byrd’s election would depend “upon whether or not the people of the South who have expressed their dedication to the principles of constitutional government and to the right of a state to determine for itself the questions of segregation and freedom of association are sincere in the continued expressions of such dedication.” In announcing their decision not to vote for Kennedy, Alabama electors called for “the preservation of racial and national integrity” and voiced vehement opposition to efforts to “integrate our schools, do away with literacy tests as a qualification for voting [and] otherwise undermine everything we hold dear in the South.”
The free-elector movement of 1960 thus represents another deliberate effort by Southern segregationists to use the electoral system to change the course of the national debate over race and civil rights. Ultimately, of course, Byrd received only fifteen electoral votes. Kennedy won the election, with 303 electoral votes to Nixon’s 219. Thus, the segregationist electors were not able to alter the outcome of the election as they had hoped. However, they were able to demonstrate the central importance of racial issues in controlling the Southern vote in the electoral college — a lesson that Nixon would take to heart eight years later in his next bid for the presidency.