If Popular-Vote Loser Wins, Rift Would Likely Ensue

If Popular-Vote Loser Wins, Rift Would Likely Ensue

By Scott Conroy - October 11, 2012

If the presidential election were to play out according to RealClearPolitics' latest polling averages, Mitt Romney would surpass President Obama by 1.0 percent in the nationwide vote.

Cue the balloon drop and pop the champagne corks in Boston, right? Not exactly.

Under the same current polling scenario, Obama’s relative strength in the battleground states could propel him to victory over Romney in the Electoral College.

A candidate has been elected president while losing the popular vote four times in American history (including John Quincy Adams, who in 1824 finished second in the popular vote to Andrew Jackson but was elected by the House of Representatives when none of the four candidates won a majority in the Electoral College).

The scenario is always an unlikely one, but given the tightness of the 2012 contest, an electoral victory on the heels of a popular vote defeat isn’t out of the question for Obama or Romney.

In the days before the 2000 election, George W. Bush’s campaign reportedly prepared talking points to dispute the democratic fairness of what was then seen as a more likely outcome -- that Al Gore would win the Electoral College while losing the popular vote.

But amid the subsequent Florida recount and Supreme Court decision that awarded Bush the presidency despite his loss in the popular vote count, the Republican’s team was emphatic that only the Electoral College mattered.

Despite the protests waged by many Gore supporters, the constitutionally mandated criteria for winning the presidency were as clear then as they are now.

“It’s striking that both sides tend to adjust their position on the Electoral College based on whose ox is being gored,” said George Washington University Law School professor Jeffrey Rosen. “Republicans would have a hard time claiming that someone who won the Electoral College was not legitimately elected, in light of what happened in 2000. Because there’s no Constitutional doubt at all on the question, there’s really no serious argument that if Obama lost the popular vote and won the Electoral College he would not in fact be president.”

According to a Gallup poll conducted last year, 62 percent of Americans favored amending the Constitution to abolish the Electoral College, while just 35 percent preferred to keep it in place.

But for now at least, both sides are left to grapple with the potential controversies that would likely erupt under the established system.

The Obama and Romney campaigns have for months lined up teams of lawyers that are poised to seek creative legal challenges to any narrow defeats in individual states -- avenues for potential lawsuits that experts agree were rendered more likely by the Bush v. Gore decision.

Greg Mueller, the president of the conservative CRC Public Relations, said he does not expect the election to be as close as current polls indicate but added that his side would be particularly tenacious in fighting any legal battle challenging a narrow Obama victory.

“You’ve got a Republican/independent Romney base, in my view, that politically speaking and policy speaking fears Barack Obama and where he’s taken the country,” Mueller said. “So if you have this come down to the court system, I think it’ll be even messier than Bush and Gore, who weren’t really seen as far lefties and far righties, whereas our side sees Barack Obama as an extreme left-wing socialist.”

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Scott Conroy is a national political reporter for RealClearPolitics. He can be reached at Follow him on Twitter @RealClearScott.

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