What if they amended the Constitution but didn’t ask Congress?

That is just what some opponents of the Electoral College want to do. And there is nothing wrong with it.

Former Sen. Birch Bayh (D-Ind.) knows something about constitutional amendments. He was the moving force behind the two: the 25th, which deals with presidential disability, and the 26th, which lowered the voting age to 18.

Bayh also tried to enact another amendment, to scrap the Electoral College and replace it with a national popular election. In 1969, the House voted for the amendment 338 to 70, more than the needed two-thirds, but it died in a Senate filibuster.

The 1969 moment was probably the high-water mark for a constitutional amendment. We had just come out of the 1968 presidential election, where third-party candidate George Wallace had won 46 electoral votes. It was fresh in people’s minds that a third-party candidate could prevent the major-party candidates from winning a majority of electors and throw the presidential election into the House of Representatives.

Today, even after the 2000 election, such an amendment would probably not gain a majority in either house, never mind two-thirds in both houses.

So if Congress is an obstacle, what should Electoral College reformers do?

There is another method for amending the Constitution. Instead of going to Congress, two-thirds of the state legislatures could call for a constitutional convention, and amendments proposed by this convention would go to state legislatures, where three-fourths must ratify.

But this avenue has never been used with success, and for good reason. No one knows what this convention would do, who would participate and whether it would bring up many amendments to the Constitution or just one. In the end, it may be just as hard to get the agreement of two-thirds of states to call for a convention as to get two-thirds of the House and Senate.

Facing these difficulties, a group of reformers including Bayh and former presidential candidate John Anderson have come up with an ingenious plan. They know that what we think of as the “Electoral College” is really a combination of some constitutional provisions and other federal and state laws. They propose to have the states make legislative changes that would effectively transform the Electoral College into a national popular vote.

The key to their proposal is the insight that states have great leeway as to how they select their electors. Almost all states give all of their electoral votes to the candidate who wins the popular vote in that state. Two states, Maine and Nebraska, allow for the possibility of splitting the electors if candidates win different districts within the state.

Reformers propose that states enact laws that would award all of the electors from that state to the winner of the national popular vote. Under this plan, California, which voted for John Kerry, would have awarded all 55 electors to George W. Bush. More significantly, in 2000, Florida would have cast its electors for Al Gore, as he won the national popular vote. If enough states passed such legislation, the winner of the national popular vote would always be the winner of the Electoral College vote.

I support the Electoral College. I oppose the move to a national popular vote, which might encourage third- or fourth-party candidates and perform even worse than our current system in a very close election.

Nonetheless, the Bayh-Anderson proposal is an important lesson to would-be reformers that there are often legitimate paths to reform that go around Congress, even in amending the Constitution.

Fortier is a research fellow at the American Enterprise Institute.