How Might Romney Win the Election but Lose the Presidency
by Utah Attorney General Mark Shurtleff
10/24/2012 | 2862 views | 1 1 comments | 6 6 recommendations | email to a friend | print
In a 10/22 Utah Policy article, National Journal’s Charlie Cook is paraphrased as saying we could see Mitt Romney win the popular vote on November 6th, but President Obama retain the White House by winning the electoral votes. If that occurs, we will see renewed calls for abolishing the Electoral College. Nevertheless, a study of the original intent of the Framers for rejecting the popular vote model for presidential elections demonstrates the wisdom of our Founding Fathers which has stood the test of time as demonstrated since George Washington was elected president in 1789 with a unanimous 69 electoral votes.

When it came to establishing the method for choosing our chief executive, the men meeting in Convention in Philadelphia struggled with trying to bring together thirteen states of widely varied size and populations. Many were adamantly opposed to a strong central government. The new country spread a thousand miles along the Atlantic coast with very little communication, which made campaigning for president very difficult. The founders were highly suspicious of the power of political parties.

The members of the Constitutional Convention considered and rejected three main ideas for electing the president. Election by Congress was rejected out of concern it would weaken the separation of powers between the Executive and Legislative branches. Election by state legislatures was abandoned because it would strain the separation between the federal and state governments and also weaken the “federation.” The idea of a popular vote was tossed because without the ability to conduct a national campaign to educate all Americans, states would each likely vote for their “favorite son” and no one candidate would be able to achieve a national majority, or if they did, it would only be because they were from the most populous states, thereby detracting from the rights of the smaller states. Finally a “Committee of Eleven” came up with the idea of an Electoral College which was drawn from the Roman Republic “Centuries” system of one vote for every one hundred citizens. Presidential electors would be based on the same system created to ensure fairness in the Legislative Branch: Every state would receive two votes plus one additional vote for each member of the House of Representatives based on population.)

The system only lasted for four elections and proved unworkable with the rise of political parties resulting in a 73—73 electoral tie between Thomas Jefferson and Aaron Burr in 1800. The House of Representatives handed Jefferson the Presidency after 36 votes and a great deal of very unpleasant political wrangling. Political party loyalties appeared to have replaced state loyalties and therefore the Twelfth Amendment was ratified in 1804 to avoid ties, and to create the opportunity for the President and Vice-President to be from the same party. An absolute majority of electoral votes was now required and only one vote was cast for each office. There was no serious discussion of abolishing the Electoral College and moving to a popular vote. Some historians have suggested that the bloodshed of the French Revolution left very little desire in America for a more direct democracy.

There have been a few statutory changes since 1804, but the primary organization and function of the Electoral College exists today as it was established 208 years ago. A few incidents have occurred during two centuries of presidential elections but none so significant as to lead to a widespread call for abandonment of the College of Electors. Only one time has the vote gone to the House of Representatives because a candidate failed to achieve a majority of votes. In 1824 Andrew Jackson easily won the popular vote and more electoral votes (99) than the other three candidates. 261 votes were required. Speaker of the House Henry Clay (who himself had received 37 votes,) urged his colleagues to vote for Adams. Jackson later decried a "Corrupt Bargain” had been made when President Adams appointed Clay as his Secretary of State. Jackson got his revenge four years later easily defeating the incumbent Adams in both the popular and electoral elections.

Of course we all remember the 2000 election when Al Gore won the popular vote but lost to George W. Bush when Florida and the Supreme Court gave Bush that state’s 25 electoral votes resulting in one more than the required 270 to win in the Electoral College. Only two other presidents were elected even though they lost the popular vote. In 1876, Democrat Samuel Tilden beat Republican Rutherford B. Hayes by 250,000 votes but the Electoral College went to Hayes 185-184. The votes of 4 States were disputed. Congress referred the matter to the Electoral Commission which gave the decision to Rutherford B. Hayes.

Incumbent President Grover Cleveland [D] beat Benjamin Harrison in the 1888 election 5,534,488 to 5,443,892, but Harrison won 233 Electoral College votes to Cleveland’s 168. Four years later Cleveland came back and defeated the incumbent Harrison in both popular and Electoral College votes.

In 2008 I was honored to be elected as one of five Presidential Electors from the State of Utah and proudly cast my vote on behalf of Utah for John McCain who nevertheless lost the election by 10 million popular and 192 electoral votes. For more information about the Electoral College visit the official website: http://www.archives.gov/federal-register/electoral-college/
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October 24, 2012
The US Constitution provided for a balance between small population states and large ones. This is one of the reasons for the Senate having 2 per state and the House being divided based on population.

The current US Presidential Electoral System keeps part of that concept so that voters in California, New York, and a few others do not decide who is elected, ignoring the rest of the country.

The original system was designed to that the electors nominated two candidates, one not from their state, and unless there was a candidate nominated by the majority of electors, the voting for president out of the top 5 nominees was done by the US House of Representatives, one vote per state. If two candidates received a majority of electors, the House would decide between just the two. Basically, the loser of the top two became the Vice President, who would take over if something happened to the President. The elector college system protected every state from being ignored.

By 1796 and 1800, partly due to political party influence, and because the public didn't want the US House to decide the election a movement to change happened and under the 12th amendment this was changed. One reason was to make sure the President and the Vice President could run together. The change made it so the electors would almost always reach a majority and therefore cast the final vote, and because of that, most states have now required that the elector vote based on which party they represent. Utah requires that an elector be replaced if they do not vote per party. http://le.utah.gov/code/TITLE20A/htm/20A13_030400.htm

Under the current system, Utah having 6 votes instead of 4 gives us a slight edge over population. Utah has decided to have a winner take all system. If Utah were to split our vote, it would carry less weight in the national election.

If the National Popular Vote Compact proposed were to happen, (states making up over 270 electors were to join) the group would all have their electors match the popular vote of the entire country. So the group's electors would match the popular vote, meaning if Utah joined the compact, it could end up voting for Pres. Obama, even if most of the voters in Utah voted against him.

While the current system doesn't work as originally intended, there is still some balance favoring smaller states, just barely enough to encourage candidates to campaign throughout most of the country. If the Popular Vote Compact were to succeed, I believe that would be eliminated and I also believe the cities with the most population would be the locations where campaigning would occur, making the situation of ignoring parts of the country even worse.
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