Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

What if Bush Again Wins without the Popular Vote?

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August 10, 2004

In 2000, Bush won the White House without winning the popular vote because, once the controversy over Florida recount was resolved in his favor, he had a majority of Electoral College votes. Even assuming that this year's election engenders no recount disputes, the same scenario could occur in which Bush prevails in the Electoral College but not in the popular vote. In fact, recent opinion polls suggest that this scenario is quite likely.

Over the past few months, Kerry has usually led narrowly in the national polls, but not when one considers the state-by-state results. In that contest, Bush has remained ahead, though not by much. If those trends continue – and that is admittedly a big if – then the country could be in for a replay of the 2000 result, in which the Electoral College winner is runner-up in the popular vote. Never before in the nation's history has that occurred twice in a row. Indeed, 2000 was only the fourth time, the previous occasions being 1824, 1876 and 1888.

If that happens, public dissatisfaction with the existing system of electing presidents will likely grow. Another Bush victory of that sort might cause disturbances, perhaps even some rioting, in the major urban centers where support for the Republicans is weakest. Even if no actual violence broke out, the sense in the country that the Bush administration is essentially illegitimate would likely intensify. Such a situation would be troubling at any time, but especially so for a nation engaged in a global war against terrorism and the nations that sponsor it. The appearance – and the reality – of increasing division here at home would likely embolden America's adversaries, which is a result no responsible citizen would want.

If the 2004 election does turn out the way the last one did, calls for reform of some kind will likely be much louder and angrier than they were in 2000. Changing the Constitution in this area has proved to be a very difficult thing to do, because the Republican Party controls Congress and has little incentive to give up the advantage it has under the current Electoral College system. Consequently, it seems pointless to argue for abolishing the Electoral College entirely, or for radically restructuring it, even if such grand schemes were considered desirable ways to solve the problem of anti-majoritarian outcomes.

What might be possible is a more modest change in the way Electoral College votes are apportioned to the states. As things stand now, each state is allocated the number of electoral votes equal to its two U.S. senators plus the number of the state's members in the House of Representatives. The problem with that approach is that it departs significantly from the principle of awarding votes purely on the basis of population, because every state, no matter how thinly populated, has two U.S. senators. Giving each state two additional electoral votes regardless of its overall population has enhanced the voting power of the least populated states at the expense of the others. And that bias has had far-reaching consequences, because it has tended to increase significantly the likelihood that a candidate could win the overall popular vote and still finish second in the Electoral College.

A simple and realistic reform would be to retain the Electoral College, but drop the practice of awarding each state two "senatorial" electoral votes. If those votes were eliminated, the allocation of Electoral College votes to the states would follow the population-based pattern used in allocating seats in the U.S. House of Representatives. Such a change would also be consistent with the spirit of the constitutional provision that gives the House rather than the Senate the final say when no presidential candidate receives an Electoral College majority. Dropping the senatorial electoral votes would not, of course, entirely eliminate the possibility of one presidential candidate winning the popular vote while another won in the Electoral College, but such a change would make such a result much less likely. This year's presidential election could very well underscore just how great is the need for that reform.