Earlier this morning, in my post on the “Independent State Legislature Theory,” I observed,
Democrats have been on a losing streak in a Court that’s dominated by Republican appointees. Add to that the fact that the three most recent additions were nominated by a President who lost the popular vote and that one of those seats was vacant only because Republicans refused to hold hearings on a Democratic appointee, it’s really hard to Democrats to accept the rulings as motivated by anything other than partisan politics.
A friend pointed out privately that many Presidents, including Bill Clinton, failed to win the popular vote and nobody questioned the legitimacy of their appointees to the Court. That’s absolutely true.
In the modern era, which I date from FDR’s election, Harry Truman only got 49.55% of the vote in 1948; John Kennedy got 49.72% in 1960; Richard Nixon got 43.42% in 1968; Bill Clinton got 43.01% and 49.23% in 1992 and 1996; George W. Bush got 47.87% in 2000; and Donald Trump got 46.09% in 2016 all fell short of a majority. Indeed, Bush and Trump actually had more support than Nixon or Clinton in their first wins.
I do think, however, that failing to get 50 percent of the vote in a contest with three or more major candidates is a different thing than coming in second place in the contest. We hadn’t had a popular vote loser in the modern era until the 2000 election and then repeated it in 2016.
While I benefitted from this, in that my preferred candidate won, in 2000 and felt its pain in 2016, I considered both Bush and Trump legitimately elected.* The rules were the rules and the Electoral College, anachronism though it may be, was baked into those races from the outset. In 2000, where the margin was roughly a half million votes, I could at least rationalize that Bush might have won a majority had the rules incentivized him to campaign in that way, there was no way Trump could have made up a 3 million vote deficit.
Interestingly, the last four popular vote losers who won the Electoral College were all Republicans: Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000), and Donald Trump (2016). The first and only other person in this category is John Quincy Adams (1824) from a different party system; indeed, the three other candidates in that race were all members of the same party as Adams, the Democratic-Republicans.
Does this matter? I think so.
The sense that the deck is permanently stacked in favor of one party makes legitimacy hard to sustain. Three million votes is a lot even in a country as large as the United States. Even with almost 129 million voting for either Clinton or Trump, the margin was over 2%.
And, of course, it’s not just that Trump got to govern instead of Clinton for the 2017-2021 presidential term. He got three lifetime appointments to the Supreme Court that have already had major impact on our public policy, all of whom Democrats, not unreasonably, think should have been appointed by their Presidents.
I’m more of an institutionalist than most. The Electoral College is an anachronism. It’s not only a compromise solution to a set of disputes that existed in 1787 but hasn’t operated as intended since the early 1800s. Unless we can amend the Constitution to change it, we’re essentially** stuck with it. But it’s an exceedingly undemocratic way to choose far and away the most powerful player in our government.
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*Yes, there were attempts by Russian actors to influence the election in Trump’s favor and some attempts by his campaign to court that influence. There’s just no way of knowing how much that mattered.
**I and the late Doug Mataconis have written about the National Popular Vote interstate compact quite a number of times over the years. I’m skeptical it survives SCOTUS scrutiny if it ever passes into law.
