9.18 Myth about an Incoming President's Mandate

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.”[469] [Emphasis added]

The historical record shows that the above statement is false about as often as it is true. It is, therefore, not an accurate characterization of what happens in the real world.

The current state-by-state winner-take-all system does not reliably deliver an exaggerated margin to the incoming President. For example, despite winning by almost two million votes nationwide, Jimmy Carter won the Electoral College in 1976 with only 297 electoral votes (27 over the 270 needed for election). Despite winning by over three million votes in 2004, George W. Bush won in the Electoral College with only 286 electoral votes (a mere 16 above the 270 needed).

Moreover, the current state-by-state winner-take-all system does not reliably confer an illusory mandate on an incoming President. As a recent example, Bill Clinton did not receive such deference when he came into office with an eye-catching 370 electoral votes but only 43% of the popular vote in 1992. There is certainly no historical evidence that Congress, the media, the public, or anyone else has been more deferential to an incoming President after an election in which he received a larger percentage of the electoral vote than his percentage of the popular vote.

However, in case anyone believes that an exaggerated margin in the Electoral College “enhance[s] the new president’s ability to lead,” the National Popular Vote plan would do an even better job of creating this illusion than the current system.

Under the National Popular Vote compact, the nationwide winning candidate would generally receive an exaggerated margin (roughly 75%) of the votes in the Electoral College in any given presidential election. The reason is that the National Popular Vote bill guarantees that the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would receive at least 270 electoral votes (of 538) from the states belonging to the compact. Then, in addition to this guaranteed minimum bloc of at least 270 electoral votes, the nationwide winning candidate would generally receive some additional electoral votes from whichever non-compacting states he or she happened to carry. If the non-compacting states divided approximately equally between the candidates, the nationwide winning candidate would generally receive an exaggerated margin (roughly 75%) of the votes in the Electoral College (that is, about 404 out of 538 electoral votes).

Of course, the current system often does more than just exaggerate an incoming President’s percentage in the Electoral College as compared to his or her percentage in the nationwide popular vote. For example, Samuel Tilden, won the popular vote in 1876 by 3%, but lost the electoral vote. In four of our nation’s 57 presidential elections between 1789 and 2012, the current system has actually awarded the Presidency to a candidate who did not receive the most popular votes nationwide.

This is a failure rate of 1 in 14. Moreover, because about half of American presidential elections are popular-vote landslides (i.e., a margin of greater than 10%), the failure rate is actually 1 in 7 among non-landslide elections.

In virtually all other elections in the United States, the winner is the candidate receiving the most popular votes. Tellingly, there are not examples of Governors, U.S. Senators, and other elected officials receiving a modest popular-vote percentage being hobbled in the execution of their office because they did not have the (argued) advantage of an Electoral-College type of arrangement to (sometimes) exaggerate their margin of victory.

Footnotes