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.

[Cross-posted at The Reality-based Community]

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Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.