Considering an Electoral-Popular Vote Split

In this final stage of the presidential race, the tension grows with each passing day, even as the campaign itself ceases to be interesting at all. There might be some kind of October Surprise, as happened in 2000, when five days before the election it was revealed that George W. Bush had been arrested for drunk driving at age 30. But barring something like that, between now and election day nothing much will happen. There will be lots of rallies and ads and door-knocking and phone calling, of course, but reporters are going to have a hard time coming up with new things to talk about.

Which is why this is the time when we start spinning out "what if" scenarios. What if there's an Electoral College tie? Let's join Wolf over at the virtual reality dome to game out the possibility for the next ten minutes! But this year there is a real possibility that we could get a crazy scenario, one in which Mitt Romney wins the popular vote, but Barack Obama wins the Electoral College. If that reverse of 2000 happened, would everyone on both sides suddenly switch their positions on the Electoral College?

Saying it's a real possibility doesn't mean that it's likely (Nate Silver puts the likelihood at 2.5 percent today), but the reason people are taking it seriously (and starting to write articles about it) is two characteristics of the race at the moment. First, according to the poll averages Romney looks to have a tiny lead overall: says two-tenths of a point, RealClearPolitics says nine-tenths of a point, TPM says eight-tenths of a point. Yet Obama is positioned much better in the Electoral College. He has clear leads in the swing states of Nevada, Iowa, and Wisconsin, and has led in nearly every poll of Ohio. If Obama wins Ohio, he wins. But even if he loses Ohio and Florida, he could still win by grabbing Virginia (where the latest Washington Post poll has him ahead by four points), or by taking Colorado and New Hampshire. There are lots of ways to reconfigure things, but the point is that the scenarios for Romney winning the Electoral College all require him to take multiple states where polls show him clearly behind, whereas the scenarios for Obama winning involve him winning states where he's leading. Hurricane Sandy may make this scenario more likely if it depresses turnout along the eastern seaboard where Obama is likely to pile up lots of votes in states like Maryland, New Jersey, and New York.

All that context brings me to the question I wanted to ask: How would liberals and conservatives react if this electoral-popular split were to come to pass? You might remember that in 2000, when Al Gore won the popular vote, Republicans passionately defended the Electoral College, even quickly putting together books (like this one and this one) arguing for its wisdom. Their arguments against the popular vote grew a bit strained at times; in his introduction to this book defending the Electoral College, Mitch McConnell threw in my favorite argument for George W. Bush's legitimacy, that the counties won by Bush comprised a greater total acreage than the counties won by Al Gore. So there.

Maybe my memory is faulty, but I don't recall any prominent Republicans saying, "The Electoral College is antiquated and unjust, and produces pathological presidential campaigns, but the rules are the rules, and this time Bush won by the rules." Instead, they claimed that the Electoral College represents the highest form of democracy, it demonstrates the founders' genius, and to have a system like they do in every other country in the world, in which—now see if you can follow along here, because it gets pretty complicated—everyone votes, and the person with the most votes wins—would be just insane.

But I'm pretty certain that should Obama win the Electoral College but lose the popular vote, Democrats won't be making the same argument that Republicans made twelve years ago. I for one will happily pledge right now that should that unlikely event come to pass, I'll say that though I'm glad Obama won, I'm sticking to my long-held position that we ought to get rid of the Electoral College as soon as we can. And we don't actually need to amend the Constitution to do it; if states totalling 270 electoral votes sign on to the National Popular Vote initiative, in which they pledge to give their electoral vote to whichever candidate wins the popular vote, the deed would be done.

What about Republicans? Would they begin campaigning against the Electoral College if it delivered a second term for Barack Obama? Or would they say that even though they aren't happy with the outcome, Obama is the legitimate president and we don't need to change the system? My guess is it might be both. They won't explicitly reject the Electoral College, but they'll also spend the next four years investigating the results in the states that were closest, trying to prove that he didn't really win. And I wouldn't be surprised if some people tried to find a reason to impeach him. But heck, they may do that even if he wins the popular vote by ten points.


The trouble with the National Popular Vote initiative is that it relies on the national popular vote from a campaign and an election centered around the Electoral College. If candidates were competing for a national popular vote, the campaign structure would be totally different. Candidates would spend time in highly populated places like New York, Texas, and California, instead of concentrating their efforts on swing states. The popular vote in the context of the Electoral College does not necessarily reflect national support for one candidate or another. The reality is that the popular vote in the Electoral College system is an irrelevant number, because the structural features of the Electoral College dilute its validity in this context.

Therefore, I think the appropriate (though perhaps not flashy enough) media response for the Democrats, in the event of an Obama Electoral College majority but Mitt Romney popular vote victory, is to play this very angle: "To win a presidential election, you have to win the Electoral College. We organized our campaign to do just this and we were successful. If winning this election required us to win the national popular vote, we would have campaigned differently and accomplished that objective."

What concerns me the most would be if the Republican-controlled legislatures and governors of Michigan, Pennsylvania, or Ohio used an EC/PV split as an excuse to send electors of their choosing to the Electoral College instead of the ones elected by their voters. It would be perfectly legal for them to do so, but it would be a bitter pill for most Democrats to swallow after 2000, if no matter how an EC/PV split turned out, Democrats got screwed. And yet, I can't convince myself that Republicans wouldn't do it.

The National Popular Vote is not in effect yet.
When it is, campaigns will compete for a national popular vote, and the campaign structure would be totally different.

Existing federal law (section 1 of title 3 of United States Code) specifies that presidential electors may only be appointed on one specific day in every four-year period, namely the Tuesday after the first Monday in November (Election Day).

“The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

It would not be legal for any legislature to send electors not elected by their state's voters. If a state legislature decides that it is going to appoint presidential electors, it must do so on the specific day established by Congress (which nowadays is the Tuesday next after the first Monday in November). The legislature cannot appoint presidential electors after Election Day (i.e., after seeing the election results in its own state or other states).

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