Is GOP Headed for Its Own Bush v. Gore?

By BYRON YORK – – – –

It’s now likely Republicans are headed toward a contested convention in July. But they might be headed toward more than that — the party could be on its way to an internal version of the 2000 election, the race in which the candidate who lost the popular vote won the presidency, leaving injured feelings and diminished faith in the legitimacy of the electoral system.*

And it could be worse than that. The 2000 winner of the popular vote, Al Gore, lost the presidency because of the constitutional structure under which electors, not popular vote totals, determine who enters the White House. Seeing the popular vote loser, George W. Bush, win the election was unfortunate — it hadn’t happened since the 19th Century — but it was specifically provided for in the Constitution. Democrats unhappily accepted the result because they accepted the Constitution as the bedrock of our system of government.

In an intra-party Republican fight, on the other hand, the winner of the 2016 nomination could be determined not by the Constitution but by rules written by party activists and insiders the week before the GOP convention. If those rules can be reasonably viewed as unfair, they won’t command the fundamental respect and consensus of a constitutional provision. And the resulting nominee won’t command that respect, either.

There’s no guarantee it will happen. Right now, the popular vote leader, Donald Trump, is also the delegate leader. According to RealClearPolitics, through the Wisconsin primary Trump has won 8,197,535 votes to Ted Cruz’s 6,263,349. Trump leads the delegate race with 743 to Cruz’s 545. (Yes, there are complicated ways to count delegates, but Trump still has a substantial lead.)

Even with losses over the weekend in Colorado’s delegate selection, it’s possible Trump will win the 1,237 delegates required to clinch the nomination before the convention. If he did that, he would certainly be the vote leader, too. It’s far less likely — actually, almost impossible — for Cruz to hit the delegate mark before Cleveland. But if he could pull it off, in addition to his delegate-convention efforts, it could only be by collecting many, many more votes than Trump in the remaining big contests.

The more likely scenario is that Trump will go to the convention leading in delegates and the popular vote. The delegate totals will change on multiple ballots. The popular vote won’t; there will be no more to win. And at this point it seems difficult for Cruz to overtake Trump’s 1,934,186-vote lead. So it seems possible that, should Cruz become the nominee, he would do so as the popular vote loser.

Of course, winning the popular vote over a series of primaries and caucuses is not the same as winning the general election popular vote on a single election day. But winning the popular vote is the single most important factor in the Republican primary and caucus system. Some states award delegates winner-take-all — that is, to the winner of the popular vote. Other states award delegates winner-take-all to the winner of the popular vote in congressional districts, with an additional number of delegates going to the winner of the statewide popular vote. Other states award delegates proportionally, with the most going to the winner of the popular vote, either in districts or statewide.

All of those allocation methods are based primarily on the popular vote. It is the foundation of the primary and caucus system.

Republicans have not recently had to face the prospect of a popular vote winner losing the nomination. In 2012, Mitt Romney won 9,809,662 primary and caucus votes to second-place Rick Santorum’s 3,909,460. In 2008, John McCain won 9,902,797 votes to Romney’s 4,699,788. There was no question who won.

Democrats in 2008 faced a much more difficult situation, when Barack Obama and Hillary Clinton ran neck-and-neck in the popular vote. In the end, Obama played Democratic Party rules much more craftily than Clinton, and won the delegate race. But he also came out ahead in the popular vote. By one count, Obama narrowly won — really narrowly, by 41,622 votes out of 35 million cast — while by another count, including vote estimates from some caucus states, Obama won by 151,844. Both were narrow, narrow victories, but victories nonetheless. Still, being close in the popular vote gave Clinton a powerful argument as she stayed in the Democratic race. When she said she was “proud to have put 18 million cracks in the highest glass ceiling,” she wasn’t talking about delegates.

Now, Republicans could be headed toward an end in which the popular vote loser becomes the party’s nominee. Many Republicans undoubtedly have no problem with that. They are fond of pointing out that we live in a republic, not a democracy. That the rules are the rules. And that the Founders didn’t much like democracy. There are counter-arguments for all — we live in a representative democracy, the rules are changeable, and the trend in the past 150 years has been to make American electoral practices more democratic. But don’t expect any of the arguments to be settled.

Donald Trump will spend the next few days, and perhaps weeks, railing about the unfairness of the system. Of course he’s doing it out of self interest. But his campaign has raised a healthy question for debate: How representative of the voters should a party’s nomination process be?

*By the 2000 election, I’m referring to the popular vote problem, not the month-long Florida hanging-chad drama which led to the Supreme Court decision in Bush v. Gore; the bottom line there was that George W. Bush won more votes in Florida than Al Gore.

 

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