9.15 Myths about Presidential Power and Mandate

The actual effect of the National Popular Vote Compact would be to change the boundaries of the “district” from which presidential electors are elected.

• Under the current system, state boundary lines define the “districts” from which presidential electors are elected. Although it is usually not described in this way, presidential electors today are elected from U.S. senatorial districts. The only exception is that two presidential electors in Maine and three in Nebraska are elected by congressional district.
• Under the National Popular Vote Compact, presidential electors would be elected from a single nationwide “district.”

Changing these “district” boundaries would not change anything in the U.S. Constitution nor increase or decrease any power given to the President by the Constitution.

UCLA Law Professor Daniel H. Lowenstein has argued:

“The Electoral College turns the many winners who fail to win a majority of the popular vote into majority winners. It also magnifies small majorities in the popular vote into large majorities. These effects of the Electoral College enhance Americans’ confidence in the outcome of the election and thereby enhance the new president’s ability to lead.”[375] [Emphasis added]

At the Commonwealth Club in San Francisco, Lowenstein said:

“What the Electoral College tends to do is to make majorities that wouldn’t exist in the popular vote. … In … these close elections … the people think of that person as somebody who won by a majority [because] he did in the Electoral College. And I think that helps the President to govern.”[376] [Emphasis added]

In fact, there is no historical evidence that Congress, the media, or the public has been more deferential to an incoming President after an election in which he received a larger percentage in the Electoral College than his percentage of the popular vote.

• In 1992, Bill Clinton received 370 electoral votes (69% of the total) while receiving only 43% of the popular vote. We are not aware of any plausible line of reasoning—much less anything resembling evidence—that Clinton’s exaggerated margin in the Electoral College yielded him any deference or mandate or helped him to lead. In fact, he encountered stiff resistance from Congress on many of his early policy initiatives, and many of them (e.g., gays in the military, health care) were defeated.
• In 1968, Richard Nixon received 301 electoral votes (56% of the total) while receiving only 43.4% of the popular vote. In 1960, John F. Kennedy received 303 electoral votes (56% of the total) while receiving only 49.7% of the popular vote. We are not aware of any plausible argument or evidence that Nixon’s or Kennedy’s exaggerated margin in the Electoral College helped them to lead or govern.

If anyone believes that an exaggerated margin in the Electoral College helps a President to lead and govern, the National Popular Vote Compact would do an even better job than the current system of creating this illusion.

In fact, under the Compact, the nationwide winning candidate would almost always receive an exaggerated margin in the Electoral College. The Compact guarantees that the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would receive at least a majority of the electoral votes (270 of 538) from the states belonging to the Compact. Then, in addition to this guaranteed minimum, the national popular vote winner would generally receive some additional electoral votes from whichever non-member states he or she happened to carry.

Suppose, for example, that the non-compacting states were to split equally and that the compacting states were to supply only the very minimum of 270 electoral votes. In that case, the national popular vote winner would receive an exaggerated margin of about 75% of the votes in the Electoral College—that is, about 404 of the 538 electoral votes.

Even if the national popular vote winner were to receive only a quarter of the electoral votes from non-compacting states, he or she would receive 337 electoral votes—that is, slightly more than Obama’s 332 electoral votes in 2012 and considerably more than received by George W. Bush in 2000 and 2004, by Donald Trump in 2016, or by Joe Biden in 2020.

If anyone believes that an exaggerated margin in the Electoral College helps an incoming President to lead, the National Popular Vote Compact would do an even better job than the current system of creating this illusion.

Of course, the current state-by-state winner-take-all method of awarding electoral votes does not reliably produce a larger percentage share of the electoral vote in the Electoral College than the candidate’s share of the national popular vote.

Even worse, the current system frequently confers the presidency on a candidate who fails to win the most popular votes nationwide (section 1.1.1).

Finally, it should be noted that every Governor in the United States is currently elected without the advantage of an Electoral College type of arrangement. Yet, no one would seriously argue that Governors are hobbled in the execution of their offices because they do not have the assistance of a state-level electoral college to exaggerate their margin of victory and create an illusory mandate.

Footnotes