A Reverse 2000?

I don't know who'll win the election but Obama has more safe and likely electoral votes than does Romney and this advantagage has held. Obama has an easier path to the magic 270 as a result, because he has to win fewer swing states.

But Romney according to some polls has the popular vote advantage, leading to the possibility of a reverse 2000: where the Democrat will have the electoral college majority but the Republican the popular majority. 

Will Romney go to court to claim that the electoral college did not survive the Fourteenth Amendment?  Gore didn't. But Romney could.

Now here's where it gets interesting. Republicans have long supported the EC system beause it has been favorable to them. It gives non-urban states, traditionally Republican in a national election, a disproportionate say in who wins. But that is changing. A generic Democrat can now expect to get 221-247 EC votes, depending on how you count, compared with 191 for a generic Republican. (The identity of the nominees can change that, of course. These numbers are for generic nominees.)

So whereas at one time, the GOP might have tried to dissuade a popular vote winner who has lost the EC from challenging the EC system, because the EC was disadvantageous to the GOP in the long run, maybe it no longer is. Today the GOP might see such a challenge as a good thing. Or not. In any event, it cannot stop a candidate from bringing such a challenge -- all the way to the Supreme Court.

I doubt the challenge would win but that analysis is above my pay grade. For Romney, if he's the popular vote winner who loses the EC, it's either a court challenge or rapid obscurity. Would the Scalia Court come to his rescue under the banner of saving democracy?

And we're told the next President will choose 1-3 justices. So the justices have a certain interest, not that it should matter. Of course. 

Comments

[John Steele]

Steve, I don't see any chance of a challenge on that point, but I would be interested to learn if the Democratic advantage is expected to last. What is driving the change on which party gets the better deal from the EC?

[Stephen Gillers]

Well, the challenge may fail but it is discussed and I bet some will encourage it. After all, we have court challenges by "birthers." What is causing the change: growth in urban areas and in minority voting, especially Hispanic. States once reliably Republican at the national level are no longer. The New England states are the best example ("As Maine goes....") Colorado was once a sure thing for the Republicans. Even New Jersey. California was a swing state. The Republican Party's stark move to the right is causing it to lose national ticket voters. Well, we'll see.

[Jack Marshall]

And, of course, there is this: it ain't gonna happen. If the popular vote isn't within 1.5%, and it won't be, the electoral vote mess is extremely unlikely. Fun to talk about (I guess), but fanciful.

[Richard Painter]

The court challenge would have to be based on the tally in one or more states as it was in 2000. I cannot see how a constitutional challenge of the electoral college itself could survive even a Rule 11 sanction when the constitution itself calls for the electoral college to select the president.

On the merits I repeat the point I made in 2000. The candidates know what the rules are and invest their time and money accordingly (e.g. not much in Texas, New York and California, among other states). There is no point speculating about how they would have played the game if they had been bound by different rules nor is there a point in speculating about who would have won.

As many of us said in 2000, the rule could be that the winning candidate must win his or her own home state. Under that rule also this time the tables might be turned. But the answer to that also is so what?

[Lloyd Green]

Sitting here in the UK, it seems incredible that in the most advanced country in the world, before the election has even happened both sides seem to have lawyers lined up to contest aspects. Does this show that there is a major problem in the uS electoral system or society or a mature legal system where nothing is off the table for legal dispute if it's wrong ?