Some Thoughts On A Hypothetical Constitutional Crisis

Strategists for both John McCain and Barack Obama are chewing over a hypothetical scenario wherein Barack Obama recieves millions more votes than John McCain, but, because of the distribution of votes in the electoral college, McCain would become the president. Shades of 2000, of course. The momentum to abolish the electoral college has abated in mainstream debates, and the Democratic Party, not wanting to look like sore-winner-losers, never took up the cause even though Al Gore received more votes than George W. Bush.

One Republican who has advised the McCain campaign thinks the country "can stand that sort of thing once every 100 years, but not twice in 8 years—especially with the Republicans winning every time."

Here's the thought experiment that gives rise to the scenario. As my colleague Ron Brownstein has pointed out, of the 29 states that President Bush won twice, Sen. Kerry received less than 43% of the vote in 21 of them.

In 2008, Democrats are outregistering Republicans. Their level of enthusiasm is much greater and probably will remain so through the election. Many more people identify as Democrats in 2008; in major deep blue states, Barack Obama will, if current trends hold, shatter turnout records.

John McCain will win a state like Mississippi, but it will certainly be by a much narrower margin that George W. Bush held over John Kerry. Think of a state like Georgia, where Obma will turn out potentially a 100,000 more black voters than John Kerry, or a state like Indiana, where Kerry recieved only four out of every ten votes.

By the same token, it is hard to imagine, although not impossible to conceive, that John McCain would be able to narrow President Bush's margins in many of the red Republican states. The Obama campaign will have the resources to narrow the gap in Texas by, say, 800,000 votes, and the McCain campaign and the Republican National Committee will be hard pressed to devote resources to a state they know they're going to win.

So what happens if this scenario comes true? Well, Obama would be in the position of arguing that the popular vote matters more than the electoral vote (and would be wholly justified in doing so), even though the constitution clearly disagrees. The repetition of the problem and the magnitude of Obama's victory would surely throw out the status quo; courts would uphold the constitution and give John McCain a victory, but the public would most likely not stand down as they did in 2000.

It is perfectly within the realm of possibility that John McCain responds very differently than President Bush would have; after all, McCain has a history of working at times against self-interest and, out of a sense of honor, he is more sensitive than most politicians to the application of moral judgments in public life.

In any event, can the two-party system sustain another disparity? Will the grand feature of our democracy -- not its fairness but its ability to perpetuate itself without violence -- withstand the pressure?

Enter Bill Nelson, the Senator from Florida, who today proposed new legislation to abolish the electoral college.