Obama’s “Legitimacy” and a Popular-Electoral Vote Split

Lots of chatter throughout Blogistan if President Obama is re-elected with more than 270 Electoral votes but with fewer popular votes than Mittdrake the Magician.  Much of it is silly.

First silly meme: Democrats were outraged when Bush lots the popular vote in 2000.  How can they defend swearing in a non-popular vote winner now?

Let’s get this one straight.  Democrats were not outraged that Bush lost the popular vote and won the electoral college.  Democrats were outraged that Bush lost the popular vote and stole the electoral college.

If Bush had won Florida by 5,000 votes, then Democrats would have grumbled and protested the unfairness of the system, but would not have questioned Bush’s legal right to assume the presidency.

Republicans might want the rest of us to forget the Brooks Brothers riot, the shutting down of vote-counting, the hackery of Katherine Harris, and the lawless grotesquery of Bush v. Gore, but those of us with an interest in facts will not.  Republicans stole this election by getting their hand-picked judges to violate the basic norm in a democracy, viz. count the votes.

If Obama wins an electoral vote majority, he will do so not because of these tactics but in spite of them, as Republicans have worked hard to once again suppress voting and voter registration, especially in key states like Ohio and Florida.  (Credit where it is due: the Supremes, for once, decided to allow for some democratic decision-making here).  If Obama triumphs only in the electoral college, there will simply be no cause for comparison.

Second silly meme: if Obama does not win a majority, this will undermine his legitimacy, especially because he will get fewer votes than he did in 2008.

This has recently been advanced by Michael Barone, who many decades ago was a good political writer and then decided to descend into the Seventh Circle of Hacktackularity.  To see its absurdity, consider Margaret Thatcher, who seems to have some street cred on the Right.

Mrs. Thatcher never won more than 44% of the popular vote, and the Conservative Party’s percentages declined in every subsequent election with her at the helm.

That’s right.  In 1979, the Tories got 43.9% of the vote.  In 1983, supposedly the year of her greatest triumph, she led the Conservatives to a smashing 42.4% share.  Four years later, she continued her downward spiral with a 42.2% share.

Obama’s answer to reporters at press conferences is simple: if it’s good enough for Margaret Thatcher, it’s good enough for me.

Enough with this.  Republicans will fume about Obama’s supposed lack of legitimacy if he wins a huge plurality and gets more than 300 electoral votes — which of course is what happened.  They are desperate and will say almost anything if their months long campaign of lies and class warfare fails to get them what their billionaire masters want.

Stop wringing your hands and pick up the damn phone.  Everything else is nonsense.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

21 thoughts on “Obama’s “Legitimacy” and a Popular-Electoral Vote Split”

  1. In the run-up to the 2000 election, it looked like maybe Mr. Bush would win the popular vote and Mr. Gore the electoral college. A Bush adviser was asked what the campaign would do if this happened, and he said they would try to encourage some of the Gore electors to break faith and support the popular favorite.

    (I apologize for not having a link; I think there was a good discussion of this in Slate as well as other venues.)

    As it turned out, the shoe was on the other foot and what did they do? Did the Bush campaign encourage their own electors to support Gore, who got the most votes? Of course not.

    The only thing that matters is whether you win, and whether after your victory the voters approve of the job you’re doing. How you win is not important.

  2. No, let’s get this really straight: You’re upset that YOU failed to steal it. You lost on election day. You lost the automatic recount. You lost the first recount Gore asked for. You lost EVERY recount, even the illegal one that the Court shut down.

    Your effort to just keep recounting under ever laxer rules until you managed to turn a razor sharp loss into a razor sharp win, and then the recounts would of course stop, failed.

    And you’ve been projecting your effort to steal the election onto Bush ever since.

    It’s so tiresome it makes me want to see if I can get one of those “Sore-Loserman” bumper stickers in time for the election. Well, I can certainly get one before all the litigation ends, of that I’m sure.

    1. and then the recounts would of course stop

      While one could reasonably have differing opinions on some of what you said, the above cited quote has absolutely zero basis in fact.

      Given the death of some 4,486 Americans and over 100,000 Iraqis based on sheer lies, as well as the strengthening of Iran in the region, the world would have been better off with Gore. This is also not to mention the financial implosion, the failure to pay attention to a certain PDB on 8/6/11, the failure to focus on Afghanistan after having ignored the PDB and any number in the catalogue of failures of that clown.

      Let me preëmpt your anticipated and typically lame argument of “getting rid of a vicious dictator.” That should have been done in 1983, when documented use of chemical weapons in the Iran-Iraq war was going on. Gee, what was the Reagan administration policy at the time?

    2. Brett, What about the documented conclusion in the NY Times that had an honest count been done (or redone) Gore would have had the majority? And are you really so deluded as to think the Supremes behaved in a lawful manner? Recounts are done to ascertain the accuracy of the original count and thus certify the winner. There is extensive evidence and many well respected conclusions (beyond the NYT) that Gore won Florida. Thus the Supremes aborted the proper expression of the will of the electorate - that hardly seems like a good (and lawful) thing. Not surprisingly, Republicans continue to attempt to suppress the vote. Clearly they do not believe in democracy, or in the law. From your comments, I would have to conclude that fit well with such a group.

      1. Brad, that’s so, if by “an honest count”, you mean a count using whichever process would produce a Gore victory. Not otherwise.

        The media consortium found that, if the count mandated by the state Supreme court, and interrupted by the federal Supreme court, had been finished, Gore would have lost. By somewhere between 400 and 500 votes.

        So, in order to end up with a Gore victory, you must be envisioning that, after Gore lost yet another recount, there would be still more recounts, who knows how many, until they managed to replicate the NYT formula for a Gore victory. When was this process supposed to be finished? Some time in July of the next year?

        And you must also envision that at that point the process would stop, or subsequent recounts using other permutations of the rules might have resulted again in a Bush victory.

        And you must ignore that the media consortium found that the ballots where their teams of counters could not agree were more than enough to decide the election either way, that even given nominally objective criteria, counts varied systematically depending on the political affiliation of those doing the counting. Making an “honest manual recount” an oxymoron.

        And you must ignore that the ballots, which were never intended to be handled so many times, were actually wearing out, becoming less and less reliable evidence of the vote on election night.

        But, most of all, you must assume that it is legitimate to count votes which were not legally cast, because the voter did not follow their instructions.

        But, yes, by piling assumption on assumption, you can spin a scenario where, eventually, Gore was President. Big whoopie.

  3. “They are desperate and will say…..anything if their [decades] long campaign of lies and class warfare fails to get them what their billionaire masters want.”

    Jonathan, I corrected your academic politeness. Hope you don’t mind. Otherwise, brilliant encapsulation of modern American conservatism (see Mr. Bellmore, above).

  4. You run an election with the Constitution you have not the Constitution you wish you had. If Obama (or Romney) wins the electoral college despite losing the popular vote (assuming no Florida 2000 or Ohio 2004 style shenanigans), then he’s the legitimate President. End of story. If you don’t like that this possibility exists, then work to amend the Constitution or get states to pass the national popular vote compact where they agree to give their electoral votes to the national popular vote winner.

    1. Yes. If Obama wins the electoral college, he’s the legtimate President, period.

      Rather like Nixon was the legitimate President after HE won reelection, actually. The number of scandals in this administration is mounting rapidly, and while they *might* be able to keep the lid on for another few days, he’s going to be a very unpopular legitimate President once it all gets out.

      But, still, President.

      1. “The number of scandals in this administration is mounting rapidly”

        Well, right now that number is ZERO, so I guess you’re saying that number will mount up to ONE?

      2. Brett, outside the conservative epistemic bubble, this has been a remarkably scandal-free administration. Even Darrell Issa’s fishing expeditions have been unable to come up with more than a series of nothingburgers. (And yes, Fast and Furious and Solyndra are nothingburgers. So are the Delphi pensions.)

        There’s a reason that when you search for “Obama scandal” you don’t get any stories from legitimate news outlets in the first six pages. (Well, there’s a WaPo column by Marc Thiessen criticizing the response to the Benghazi attack, but that uses “scandal” in the sense of “the real scandal is what’s legal” and anyway is hardly outside the bubble.)

        1. You know, the phrase “reality based community” is silly enough at the best of times, the kind of phrase only people arrogantly lacking in the capacity for introspection would sling about. But it’s at times like this that it really becomes hilarious.

          Right, there aren’t any Obama scandals. Keep telling yourselves that.

          1. i’ll probably regret this later, mainly because i’m inviting the tendentious and the inane, but i’ll bite. to which scandals do you refer, brett? i’m hard-pressed to think of anything that rates as a scandal but if you could hum a few bars maybe i’ll see what you’re talking about?

          3. Huh, let’s see.

            Fast and Furious. Which, according to investigative reporting by Univision, wasn’t limited to feeding the Mexican cartels arms.

            Crony capitalism of the Solyndra variety.

            Illegally maintaining the Gulf drilling moratorium after losing in court.

            Now letting our people in Libya be killed, ignoring their pleas for backup.

            That last, I believe, was just so outrageous that the MSM blackout has been breaking down of late.

            But none of these are “scandals” because it’s a Democratic administration, right?

          4. i suppose it would be delusional of me to point out that, with the exception of whatever happened at benghazi, the other so-called scandals on your list have already played out through republican-chaired house investigations and fox news scrutiny and fizzled out. i feel pretty safe in saying that if there were anything even approaching a scandal we’d have seen it in the committee reports plastered on fox news 24/7. the one advantage to having an intensely partisan news channel is being able to call bs on assertions like the ones you’re making here.

      3. Brett’s correct.
        In certain circles Obama will be as unpopular as ever…
        We’re talking fevered sheets and the gnashing of ill-fitting dentures in obese faces…

        In a democracy you can’t literally kill your enemies.
        All you can do is make their lives as miserable as possible.

        That Obama’s reelection will do this to the Hannity-crowd leaves me wondering:
        “Where’s the kitty for Hillary 2016? I’m ready to start contributing funds now.”

      4. You guys are missing the point. Brett’s just reminding us how Republicans always play 2nd term presidents. In reality, Clinton’s terms were free of actual scandals of any import. That didn’t stop them then. It won’t stop them in Obama’s 2nd term. It’s all they’ve got. I’ve been waiting for this angle to come up for months. I’m just surprised Brett couldn’t hold it in any longer.

      5. he’s going to be a very unpopular legitimate President once it all gets out.

        Well, I for one am not surprised that all these scandals Brett knows about haven’t gotten out. I mean, if there were someone around with a ton of money to spend who had a strong incentive to publicize Obama Administration scandals no doubt the news would be all over everywhere by now. But since there is no one like that I guess they’ll remain hidden for a while longer.

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