Could Hillary Clinton Win the Popular Vote But Lose in the Electoral College?

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tags: Hillary Clinton, election 2016, Electoral College, Popular Vote

Dr. Jeremy Tewell is the author of A Self-Evident Lie: Southern Slavery and the Threat to American Freedom (2013).

Three days after voters cast their ballots in the 2000 presidential election, Vice President Al Gore claimed over half a million more popular votes than Texas Governor George W. Bush. Yet with the winner of Florida’s twenty-five electoral votes still undecided, neither candidate could assume the mantle of president-elect. On that day, First Lady Hillary Clinton, then senator-elect from New York, announced her support for a constitutional amendment abolishing the Electoral College. “We are a very different country than we were 200 years ago,” Clinton said. “I believe strongly that in a democracy, we should respect the will of the people and to me, that means it’s time to do away with the Electoral College and move to the popular election of our president.”

Despite the Democrats’ outrage over Bush’s inauguration as the first president to lose the popular vote since 1888, the fact that the popular vote outcome and the Electoral College outcome corresponds in almost every election inhibits the sustained and widespread opposition necessary to amend the Constitution. Nevertheless, there are questions worth asking: Was Clinton right to consider our presidential election process an undemocratic anachronism in modern America? Sixteen years later, is it possible she could fall victim to the same fate as Gore? And how would the public react to the second president to lose the popular vote in the twenty-first century?

Certainly Clinton was correct in her assessment that political considerations surrounding the election of a president have changed dramatically since 1787. At the Constitutional Convention, James Madison, James Wilson, and Gouverneur Morris supported direct popular election of the nation’s chief executive. In order to guard against legislative overreach, the president, Morris argued, should be “constituted as to be the great protector of the mass of the people.” As the people’s guardian, he should “be appointed by the people.” Elbridge Gerry and Charles Pinckney, however, questioned the public’s ability to perform such an important task. The people, Gerry insisted, “are uninformed, and would be misled.” Roger Sherman and George Mason gave voice to the concern that, in a nation of four million souls scattered from New England to Georgia, the people would lack the information necessary to cast an educated vote in a national election. Over such a great distance, communication was severely hindered. According to Mason, “the extent of the country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the candidates.” Sherman believed the people of each state would therefore vote for a favorite son, thus denying any candidate a majority, or even a plurality large enough to govern effectively.

Furthermore, the framers did not favor or envision the development of political parties; nor did they envision political campaigns. Indeed, for over a century after the drafting of the Constitution, it was generally considered unseemly for presidential candidates to actively seek (or to give the appearance of actively seeking) the people’s votes. Americans thought the office should seek the man. The man should not seek the office.

Most delegates to the Constitutional Convention initially favored election of the president by Congress. Yet they also feared that a president so elected would be beholden to his supporters in the legislature. Morris compared congressional election to a conclave of cardinals electing the pope, and predicted that the appointment would more likely be the result of intrigue than a candidate’s merit.

Consequently, the convention created a committee of eleven delegates to devise a plan for selecting a president. The Electoral College, as it came to be known (that appellation never appears in the Constitution itself), allocates to each state a number of electors equal to the total number of its senators and representatives in Congress. These electors would be appointed “in such manner as the legislature thereof may direct.” The delegates hoped these men would be prominent citizens, sufficiently knowledgeable to cast a ballot in a national election.

On the state level, however, as politics became more democratic during the first half of the nineteenth century (primarily through the elimination of property qualifications for voting and holding office), legislatures began to permit the selection of electors by popular vote. By 1836, only in South Carolina did the state legislature still appoint presidential electors. Despite the relentless emphasis on “swing states,” this development, combined with the rarity of differing popular and electoral vote outcomes, has created the powerful illusion that the American people do in fact vote for president, when in reality they are only voting for a slate of electors pledged to a particular candidate.

Historians point to four presidential elections in which the electoral vote winner lost the national popular vote. The first, 1824, is a poor example, because six states, including New York, still chose their electors in the state legislature. If they had held popular elections, they might have provided the new president, John Quincy Adams, with a popular vote victory over Andrew Jackson, who is generally considered the popular vote winner. The election of 1876, in which popular vote winner Samuel Tilden lost to Rutherford B. Hayes, is also problematic in that the internal divisions wrought by Reconstruction in South Carolina, Florida, and Louisiana resulted in disputed electoral votes sent to Congress from those three states.

The best examples for what might happen this year are the elections of 1888 and 2000. Despite a narrow popular vote victory, the incumbent in 1888, Grover Cleveland, lost the electoral vote to Benjamin Harrison. In this case the disparity can be attributed to the winner-take-all practice adopted by almost every state. With the exception of Maine and Nebraska, there is no proportionality in the elections for electors. Any popular votes a candidate’s slate of electors receives beyond a majority in any state have no impact on the Electoral College outcome. Therefore, if a candidate wins by larger than necessary margins in states that do not add up to an Electoral College victory, as Cleveland did in 1888, and Gore did in 2000, while the other candidate wins by smaller margins in states that do add up to a majority of electoral votes, the latter will take the keys to the White House despite the people having cast more ballots for his or her opponent.

Given the demographic strengths and weaknesses of Hillary Clinton and Donald Trump, the upcoming election would seem to present a greater than usual risk of a popular vote/electoral vote disparity, in which Clinton would likely stand in the same position as Cleveland and Gore. (FiveThirtyEight currently places the odds of this happening at 6.6 percent, compared to 1.3 percent for Trump winning the popular vote but losing in the Electoral College.) Trump’s dismal standing among Latinos could provide Clinton with millions of additional votes in states she is almost certain to carry anyway, such as California and New York, as well as in states that are highly unlikely to turn blue, such as Texas and Arizona. Similarly, African-Americans are expected to give Clinton millions of votes in conservative southern states, which, with the possible exception of North Carolina, she has almost no chance of winning. Meanwhile, if Trump succeeds in increasing turnout among whites without a college degree, it could be enough to turn Florida, Ohio, and Pennsylvania red. In that event, he would only need one or two of the remaining battleground states to reach 270 electoral votes. Clinton could then find herself with a largely meaningless consolation prize: a popular vote victory. This scenario, while perhaps not likely, is certainly within the realm of possibility.

With memories of the “stolen” election of 2000 still relatively fresh, Democrats would surely be apoplectic if they faced another Republican president who lost the popular vote. But unless President Trump were to thoroughly antagonize Republicans as well as Democrats (again, not outside the realm of possibility), his opponents would have a very difficult time securing the support necessary, both in Congress and among the states, to amend the Constitution.

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