CBS News and YouGov have a model up that looks at the interactions between the popular and electoral votes under what seem to be the three most likely scenarios: a slight popular-vote edge for Romney, a slight popular-vote edge for Obama, and a popular-vote “tie.” This last obviously gets scare quotes because, one hopes, the architects of the model do not in fact assume that it’s anything more than academically possible for an electorate that will number around 120 million Dicks and Janes to split perfectly down the middle. Instead, think of the tie scenario as setting the betting line for the outcome of the election, like an over-under or a point spread.
The bad news for Republicans and conservatives is that the model shows President Obama wins in the event of a “push.” To be more specific, the model shows that 65 percent of the time in a popular-vote “tie” scenario, President Obama takes the Electoral College and with it the White House. But it gets worse for Romney: Even in a scenario where he wins the national popular vote by a full percentage point, he wins the Electoral College only 52 percent of the time. What’s that you say? You beat Barack by a million votes, did you? So will you be packing for D.C. or Southern California? Let’s flip a coin.
Now, in an election season crammed with more flashy models than the new Bond flick, YouGov is hardly the first and last word. In fact, a lot of the 375,000 interviews that serve as its raw data seem to have been conducted before the first debate and the seismic polling shift in Romney’s favor. But the model nevertheless captures something sticky in the race’s dynamics: Romney has been able to close on, and eventually pass, President Obama in national tracking. But he has not yet been able to reproduce the trick in just those states he’ll need to win to put him at 270 electoral votes. Don’t look now, but as of today, the Real Clear Politics polling average has Romney holding on to a one-point lead nationally, and the site’s electoral map shows him for the first time surpassing the president in locked-up and leaning electoral votes, 206 to 201. But it also generously considers places like Michigan and Pennsylvania to be “toss-ups,” which, well, I’ll believe when I see.
So suppose Romney wins the popular vote, and even wins it by enough that the margin can’t be niggled away by the plague of Democratic lawyers sure to croak their way across the continent like so many Old Testament frogs. But suppose as well that, despite running up the score in, say, Florida, Romney comes up short in, say, Ohio? (Actually, don’t just say Ohio. It’ll be Ohio if it’s anywhere.) What then? You’ll recall the stories about Team Dubya having talking points prepared for what they then thought was the significant possibility that Bush would win the popular vote but lose the presidency in 2000. In the event that this fate befalls Romney, some partisan Republicans — and no doubt a good number of conservatives more broadly — will be tempted, from epiphany or expediency, to revise their opinion of the Electoral College. But that would be a catastrophic mistake, both for conservatism and for the republic.
Though readers on the right will no doubt be familiar with the arguments in favor of the College (indeed, they are likely to be just about the only statistically significant demographic in the country familiar with such arguments), they bear summation. In short, the College reflects the formal and constitutional fact that the president is elected chief executive of a union of states — federated but sovereign — and not a glomeration of people. The executive of the Constitution, of the Founders, is president of the United States, not president of America. Its detractors consider it an anachronism, but if federalism still means anything — and sadly, that’s something of an open question — then the College is as vital as ever. It affirms that we vote as citizens of the several states, not mere residents of arbitrarily drawn administrative districts.
The Founders designed the College this way in part to blunt the power of emergent factionalism. And it worked. In the words of Tara Ross, one of the College’s most able defenders, the current electoral system means that the president must secure the support of a broad coalition of “heterogeneous entities,” themselves “safe” factions “composed of individuals with a wide variety of interests.” Benjamin Harrison lost the popular vote to Grover Cleveland in 1888 because of the latter’s overwhelming strength in the South, but won the presidency with a coalition of states in the Northeast and Midwest and along the Pacific coast. Likewise, when Bush defeated Gore despite losing the popular vote, he did so while winning 30 states.
This stuff matters, and should be remembered if Romney gets Gored. Conservatives tend to focus on the radical reimagining of the function of government at work in our courts and legislatures. And understandably so, as in this battle the progressives have us routed and the situation is dire. But just as important is the ongoing reimagining of the structure of government, the century-long effort to reshape the ingenious institutional architecture that has so far preserved the republic.
The Founders envisioned an executive with a narrow cluster of heavy-duty powers. Instead we have an executive who presides over a sprawling and amoebic regulatory state, often ruling with delegated legislative authority, or by fiat. Republicans are not innocent in this devolution. Nor are they innocent in the crisis of the Senate, which the Founders designed to be both anti-democratic and counter-majoritarian. While it has lost much of its anti-democratic character — thanks a lot, Seventeenth Amendment — it retains, by a thread, a number of counter-majoritarian safeguards, not least of which is the “filibuster,” frequently all that stands between the American people and the legislative exuberance of our most ambitious technocrats. Yet it was Republican Trent Lott who coined the term the “nuclear option” — which would effectively neuter the filibuster — and Republican Bill Frist who most prominently threatened to use it.
The constitutional order can’t afford another such betrayal of convenience on the matter of the Electoral College. If President Obama is reelected without a popular majority, Republicans should, by all means, use this fact as leverage in negotiations over such matters as the “fiscal cliff.” They should blast the talking point until their collective faces turn blue. But they should not, under any circumstances, suggest that the president’s victory is anything less than uncontrovertibly, unquestionably, unambiguously constitutional and legitimate. If prominent Republicans were instead to come out in favor of, for example, the National Popular Vote — a legally dubious conspiracy of eight-and-counting states to undermine the College by awarding their electoral votes to the national popular-vote winner — it would amount to a tactical tantrum with potentially disastrous long-term strategic consequences.
Of course, there is one thing Mr. Romney can do to forestall the whole question: Win — big.
— Daniel Foster is news editor of National Review Online.