The Popular Vote and Presidential Legitimacy

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are not particularly politically competitive, even down ballot, we have no assurance that the final vote totals in such states reflect actual voter sentiment. Just think about it: someone who cares about the outcome of the Presidential race is far more likely to vote if they live in Ohio than if they live in Texas or the District of Columbia. It also means that there is less attention to provisional ballots, the need for recounts, etc. in less competitive jurisdictions. Under a national popular vote system, this would not be the case.

The bottom line is that popular vote totals are not independent of the rules under which they are cast. Dividing up the vote into states, each of which awards its electoral votes separately, alters the popular vote total. So if a candidate wins a majority of electoral votes while losing the national popular vote, this does not mean this candidate would have lost the election under a national popular vote system, and it does not make the prevailing candidate any less “legitimate.”