Here’s a scenario that’s improbable but remotely possible. On election night, the networks project that Barack Obama has won the popular vote while John McCain has scratched out a bare majority in the Electoral College. Because it’s the electoral vote that really counts, it seems that McCain will be the next president. Several weeks pass. Meeting in their states on December 15, the electors then choose … Barack Obama.
To see how these strange events might play out, let’s first consider why the popular and electoral vote could diverge.
In several battleground states, polls now put Obama’s lead in single digits. But suppose that, for whatever reason, the polls are consistently overstating that lead by a few points. Suppose further, that McCain has a last-minute surge. Although these conditions are not likely, they are not out of the question, either. In 1996, the final Pew tracking poll had Clinton 14 points ahead of Dole, whereas the actual margin turned out to be 8.5. If something similar happens this time, McCain might overtake Obama in enough battlegrounds to get just over 270 electoral votes.
Meanwhile, Obama will surely rack up huge raw-vote totals in California, New York, and Illinois. Even with a narrow electoral-vote edge, McCain probably could not catch up to Obama in the national popular-vote tally.
On the morning after the election, let’s say, Americans wake up to hear that the guy who got the most votes is not going to be president. Obama supporters will hardly shrug, smile, and say, “Oh well, those are the breaks. Better luck next time.” To put it mildly, they will not be in any mood to accept that outcome. Democrats will deploy lawyers to challenge vote counts, in hopes of pushing one or two states back into their column. Republicans will fight back with their own briefcase brigades.
That much is predictable. Everybody remembers what happened in Florida after the 2000 election. But something else happened at the same time. Though it got less attention than the Florida fiasco, it could have as much relevance if our 2008 scenario comes to pass.
Two seniors at Claremont McKenna College started a website to argue that the popular-vote winner should prevail. The site urged people to lobby Republican electors to vote for Gore. It got a fair amount of press and Internet buzz, and thousands of citizens logged on.
You might be wondering how that effort could make sense. After all, don’t electors automatically vote for the candidate who won their state? The answer is no. There is nothing in the Constitution or U.S. Code that forces electors to abide by their states’ popular vote. Certain states have such requirements for their electors, but most legal scholars think that they are unenforceable. Over the years, a few “faithless electors” have voted for someone else, and none of them have ever faced prosecution.
So this early netroots effort aimed for something that was theoretically possible. In spite of the students’ ingenuity, however, no electors flipped. It was a tough sell, since electors usually get the job through years of loyal service to their party. And in this case, the students did not get the support of the Gore campaign or the Democratic National Committee. Party elders accepted the traditions of the Electoral College.
Things could be much different in 2008. In the nomination campaign, Obama was eager to break with old constraints and conventions. He was effective in courting superdelegates, and one could see him applying the same skill to GOP electors. His pitch might run as follows:
“Look, I know that this is a difficult decision. But in this election, voter turnout and enthusiasm reached historic levels. If this process thwarts the people’s will, then millions of American citizens will lose faith in the political system. What’s worse, the outcome would cause further harm to our standing overseas. I’m asking you to put your country first.”
Such an appeal might have an impact. Thus he could become president by turning a few electors into Obamicans.
Granted, the most likely outcome of the 2008 election is that Obama will win both the popular and electoral vote. But on the slight chance that a split result does take place, the McCain folks might want to draw up an Electoral College contact list. They’ll want to talk to their electors before Obama does.
– John J. Pitney Jr. is the Roy P. Crocker Professor of American Politics at Claremont McKenna College.