If the presidential election were to play out according to RealClearPolitics' latest polling averages, Mitt Romney would surpass President Obama by 1.0 percent in the nationwide vote.
Cue the balloon drop and pop the champagne corks in Boston, right? Not exactly.
Under the same current polling scenario, Obama’s relative strength in the battleground states could propel him to victory over Romney in the Electoral College.
A candidate has been elected president while losing the popular vote four times in American history (including John Quincy Adams, who in 1824 finished second in the popular vote to Andrew Jackson but was elected by the House of Representatives when none of the four candidates won a majority in the Electoral College).
The scenario is always an unlikely one, but given the tightness of the 2012 contest, an electoral victory on the heels of a popular vote defeat isn’t out of the question for Obama or Romney.
In the days before the 2000 election, George W. Bush’s campaign reportedly prepared talking points to dispute the democratic fairness of what was then seen as a more likely outcome -- that Al Gore would win the Electoral College while losing the popular vote.
But amid the subsequent Florida recount and Supreme Court decision that awarded Bush the presidency despite his loss in the popular vote count, the Republican’s team was emphatic that only the Electoral College mattered.
Despite the protests waged by many Gore supporters, the constitutionally mandated criteria for winning the presidency were as clear then as they are now.
“It’s striking that both sides tend to adjust their position on the Electoral College based on whose ox is being gored,” said George Washington University Law School professor Jeffrey Rosen. “Republicans would have a hard time claiming that someone who won the Electoral College was not legitimately elected, in light of what happened in 2000. Because there’s no Constitutional doubt at all on the question, there’s really no serious argument that if Obama lost the popular vote and won the Electoral College he would not in fact be president.”
According to a Gallup poll conducted last year, 62 percent of Americans favored amending the Constitution to abolish the Electoral College, while just 35 percent preferred to keep it in place.
But for now at least, both sides are left to grapple with the potential controversies that would likely erupt under the established system.
The Obama and Romney campaigns have for months lined up teams of lawyers that are poised to seek creative legal challenges to any narrow defeats in individual states -- avenues for potential lawsuits that experts agree were rendered more likely by the Bush v. Gore decision.
Greg Mueller, the president of the conservative CRC Public Relations, said he does not expect the election to be as close as current polls indicate but added that his side would be particularly tenacious in fighting any legal battle challenging a narrow Obama victory.
“You’ve got a Republican/independent Romney base, in my view, that politically speaking and policy speaking fears Barack Obama and where he’s taken the country,” Mueller said. “So if you have this come down to the court system, I think it’ll be even messier than Bush and Gore, who weren’t really seen as far lefties and far righties, whereas our side sees Barack Obama as an extreme left-wing socialist.”
In a possible foreshadowing of disputes over a tight vote count, prominent voices on the right recently challenged the authenticity of September unemployment data released by the Bureau of Labor Statistics, an organization that had not previously come under partisan accusations.
And even if it is widely regarded as legitimate, an especially narrow victory by either side might further hinder whoever becomes president from gaining bipartisan cooperation over the next four years.
Asked how he and fellow prominent conservatives would regard an Obama victory that came without a popular-vote majority, Citizens United President David Bossie did not mince words.
“President Obama would be a lame-duck president on Day One of his second term,” he said. “He would not have any mandate to initiate policy, and power would reside in Congress rather than the White House.”
On the left, widespread allegations of voter suppression likely would emerge if Romney loses the popular vote but wins the presidency.
Citing the strict voter identification laws that have been passed in several states, Harold Meyerson speculated in a July column in The Washington Post about what would transpire “if Romney comes to power on the strength of racially suppressed votes.”
“Mass demonstrations would be in order,” Meyerson wrote. “So would a congressional refusal to confirm any of Romney’s appointments. A presidency premised on a racist restriction of the franchise creates a political and constitutional crisis, and responding to it with resigned acceptance or inaction would negate America’s hard-won commitment to democracy and equality.”
Asked what steps they had taken to handle potential claims of illegitimacy should their candidate win the election while losing the popular vote, both camps sidestepped the question.
“Our job is to convince remaining undecideds and to turn out as many of our supporters as possible,” said Obama spokesperson Ben LaBolt. “It's not to tweak our plans based on the daily poll of polls.”
And Romney spokesperson Andrea Saul said, “The election isn’t being held today.”
According to RealClearPolitics elections analyst Sean Trende, the possibility that either candidate will win the presidency without a popular-vote majority is “pretty slim.” He noted that there has been less recent polling of individual states compared with national surveys, making it likely that polls in individual states are lagging behind the broader national trends.
Still, both sides are preparing behind the scenes for an outcome that would be steeped in controversy and would almost certainly further intensify the nation’s partisan divide.