“Hillary won the popular vote!” has become the mantra for those feeling major post-election blues. This makes Trump’s election, they hold, illegitimate. There are myriad problems with this assessment. First, it is constitutionally illiterate. Second, it is true only in the narrowest measure for popular support: raw numbers nationwide. Third, had millions of GOP votes not been siphoned off by two minor-party tickets, the overall popular vote would have been much closer.
Constitutional Realities. Our nation is the United States of America, not the United People of America. The Constitution of 1787 was ratified by individual states with 9 of the 13 Colonies sufficient to ratify for the nation. The Framers rejected proposals for a referendum to ratify by nationwide popular vote. Indeed, within each state, electors voted, not statewide voting populations. In Federalist 68, Alexander Hamilton addressed the mode of electing the president. His paragraph most pertinent to today’s situation provides:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.… [T]he convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it… [Emphases added.]
The U.S. Constitution is replete with counter-populist provisions. The Guaranty Clause makes us a republican not pure democratic form of government, i.e., a mix of national and state governments and hence divided sovereignties. The Amending Article provides that “… no State, without its Consent, shall be deprived of its equal suffrage in the Senate.” There is no other provision in the Constitution or among the 27 amendments that contains comparably ironclad protection for minority rights.
The bicameral legislature leavens democracy with geographic representation: a House of Representatives whose members are elected by popular vote, and a Senate whose 100 members are chosen two per state — the equal state senatorial suffrage noted above. There are popular safeguards — revenue bills must originate in the House (a provision honored often in the breach by legislative mischief). And there are safeguards against transient passions — the Senate has “advise and consent” power over executive and judicial appointments and treaty ratification (the latter also bypassed via legislative legerdemain, most recently in the 2015 Iran nuclear deal).
More safeguards are found in the Bill of Rights: the Ninth Amendment reserves power to the people not specifically vested in government; the 10th Amendment reserves to the states or the people powers not directly assigned to the federal government. The 17th Amendment substituted direct popular election of senators for the original mode of election by state legislators. Yet the 22nd Amendment limits presidents to two terms regardless of popular will.
Following the deadlock in the election of 1800, the Electoral College was refined per the 12th Amendment: In event of a tie among electors — the term “electors” is used in text and amendments, not “electoral college” — the House would choose the new president by State delegation, with each State having one vote; the Senate would choose the new vice-president, with senators voting individually.
Vote-Count Realities. Begin with the final tally for all five candidates, as reported by RealClear Politics, rounded to the nearest thousand:
Donald Trump (R) – 62.434 million
Hillary Clinton (D) – 64.634 million
Gary Johnson – (L) 4.428 million
Jill Stein (G) – 1.401 million
Even McMullin (I) – 852,000
Now, add the Libertarian (4.428M) and Independent (852K) totals (a combined 5.28M) to Trump’s tally, and add the Green (1.401M) total to Hillary’s, and the resulting 3.9M margin for Trump swamps her 2.2 million popular vote margin. Trump wins by 1.7M:
Trump – 62.434M + 4.428M + 852K = 67.714M
Hillary – 64.634M + 1.401M = 66.035M.
Yes, this is oversimplification. Many of the minor party voters would likely have stayed home. But if they were committed to vote and had to pick one major party candidate likely most would have chosen Trump. While some of the Libertarians and Independents might have held their noses and voted for Hillary, 31.8 percent would have to have done so to erase Trump’s revised margin.
At the very least it shows that minor party candidates cost Trump more votes than they cost Hillary.
Now, factor in that Hillary won California by 3.9 million votes. Subtract out her California total and she loses the nationwide popular vote. Add in New York, where Hillary’s margin was 1.5 million. Her two-state 5.4 million margin is significant in yet another way, as CA and NY stop counting absentee ballots when their total uncounted number is less than the margin of the winning candidate.
I wrote in my recent TAS article, “After Trump’s Triumpathon”:
One more reform is needed: For federal elections in presidential years: all valid absentee votes must be counted. Currently that is not the case. Some states — notably New York and California, only count outstanding absentee ballots if their number exceeds the margin of already-counted ballots. Thus in 2000, when Al Gore “won” the popular vote by 500,000, in California alone 2 million absentee ballots were not counted, because Gore had won already-counted votes by more than that margin. Typically the GOP wins absentee ballots — military, students and those doing business overseas — by a 2-to-1 margin; applying that to California in 2000 would have given George W. Bush a 667,000-vote margin, and made him the national popular winner by 167,000 votes.
I went on to note that as of November 10 there were 3.2 million uncounted absentee ballots in California alone. With California having about 1.9 times New York’s population, a similar proportion of uncounted absentee ballots would be 1.7 million. Thus, nearly 5 million absentee ballots in those two states alone were likely uncounted. Applying the 2:1 GOP edge yardstick would yield 3.2M more Trump votes, and 1.6M Hillary votes. Trump would have picked up another 1.6M votes, versus is 2.2 million official nationwide loss. This would not have erased Hillary margin. But her official margin would have been less than 600,000 votes out of 132 million cast for the two top candidates, a margin for Hillary of 0.45 percent. Round up to 0.5 percent, and the popular vote tally would have been 50.25 to 49.75 percent, instead of 48 to 46.3 percent.
But there are other valuable measures that show the geography of Trump’s victory. The New York Times published a post-election dual-graphic titled “The Two Americas of 2016.” Here is the NYT text accompanying the two graphics:
Geographically, Donald J. Trump won most of the land area of the United States. A country consisting of areas he won retains more than 80 percent of the nation’s counties.
While Trump country is vast, its edges have been eroded by coastal Democrats, and it is riddled with large inland lakes of Clinton voters who were generally concentrated in dense urban areas.
Hillary Clinton overwhelmingly won the cities, like Los Angeles, Chicago and New York City, but Mr. Trump won many of the suburbs, isolating the cities in a sea of Republican voters.
Mrs. Clinton’s island nation has large atolls and small island chains with liberal cores, like college towns, Native American reservations and areas with black and Hispanic majorities. While the land area is small, the residents here voted for Mrs. Clinton in large enough numbers to make her the winner of the overall popular vote.
The NYT adds that Trump’s geographic area covers 85 percent of the U.S., versus Hillary’s 15 percent. Hillary’s America covers 54 percent (174 million) of the 322 million population, versus Trump’s 46 percent (148 million). Her popular vote margin when the NYT article was published (Nov. 16), excluding other candidates, was one percent (50.5 to 49.5). Her later, final popular vote margin, excluding other candidates — 2.2 million out of 127 million officially cast for the two — is 1.7 percent (50.9 to 49.2; total is 100.1 due to rounding only to two decimal places).
Drilling down one more layer, the current U.S. county map shows 3,143 counties. According to Karl Rove (no link found, but I heard it live on Fox), Hillary carried about 300 counties, just 10 percent of the total. This closely tracks the NYT’s presidential election 2016 geography. Hillary’s California left-coast lopsided blowout delivered 10 percent of her popular votes and 24 percent of her electoral votes.
Welcome to Trumpland. Far from being illegitimate, most of America’s geographic area is Trumpland. Future elections could dramatically change the current balance. But for now, unless last-ditch efforts succeed, its Trump’s turn to deal the cards.
Greenie Jill Stein, with one percent of the popular vote and zero electoral votes, is challenging the result in three Rustbelt states (PA, MI, WI). And there is talk of trying to sway 38 “faithless electors” into switching their votes to Hillary when the electors are polled on December 19, to make the count 270-268 in Hillary’s favor. In 228 years (58 presidential elections) there have been a total of 157 such defections, with none affecting final presidential or vice-presidential electoral outcomes. Consider these long shots, as incumbents, who are not in the habit of making their electoral defeat easy, wrote the election laws. Stein’s challenge, based on her bald assertion that electronic voting machines may have been — not were actually — hacked, is now openly supported by Hillary’s campaign — despite open acknowledgement by a Hillary campaign attorney that “… we had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology.” Their path is steeply uphill, in that the vote margins are far larger than any that have been overturned in prior challenges. (Bush’s 2000 Florida margin was 537 votes out of more than 5.8 million cast, all of 0.0001 percent.)
Two of the three states Stein filed challenges in (MI & WI) are run by GOP governors hardly be eager to unseat their own party’s nominee, now president-elect. To overturn the result Stein/Hillary must win all three contests. As for swaying 38 electors — bribery might be a more accurate term — that number represents one-eighth of Trump’s electors. Al Gore could not find 3 electors in 2000 to switch and thus flip his 271-266 loss to George W. Bush to a 269-268 win. (One D.C. elector abstained when the electors formally voted in December.) Thus, Hillary finding 38 seems utterly quixotic.
Yet there is one more monkey wrench in the labyrinthine election laws that could damage Trump though not denying him the presidency: if the recount in the three states can be delayed past 2016’s Dec. 13 deadline for certifying state electors, electors from those states cannot cast ballots when the formal Electoral College votes Dec. 19. As John Steele Gordon explains (subs.):
With Trump now having only 260 electoral votes (to Clinton’s 232), he would still win the election. The 12th Amendment states that “the person having the greatest number of votes for President, shall be President, if such number be a majority of the whole number of Electors appointed.” With 538 electoral votes, the majority is 270. With only 492 electoral votes, the majority is 247.
Gordon concludes (rightly) that the perceived legitimacy of Trump’s win would be further undermined — I would add, eagerly amplified by Hillary’s mainstream media courtiers — and thus Trump would have less political capital at the start of his presidency. Recall that in 2000 George W. Bush started under a cloud after the six-week Florida mess, one dissipated only after the Sept. 11, 2001 attacks.
But the secretary of state for Pennsylvania stated Monday that Pennsylvania’s Nov. 21 filing deadline for voters to seek a recount has been missed. Unless the state or federal courts overturn the deadline the Keystone State slate of 20 electors will vote Dec. 19. Trump would then win 280 of 512 electors. This would give him more than the 257 electoral votes needed to win with 512 eligible electors. And it would also top the magic number of 270 electors needed to win were all 538 electors to vote.
Unlikely? Sure, but in Crazy Year 2016 nothing can be completely ruled out. Yogi Berra’s famous quip that “It ain’t over ‘til it’s over!” rings truer than ever.
The REAL Winner: None of the Above? Just when you think it is safe to go back into the water.… there is one more map (figures as of Nov. 13) worthy of note: a “None of the Above” electoral map showing that stay-at-homes would have won had they all voted.
With 56.9 percent eligible voter turnout, at 43.1 percent NOTA beat Hillary’s 26.3 percent and Trump’s 26 percent. In only 6 states plus the District of Columbia, did NOTA lose, two to Trump (IA & WI) and five to Hillary (ME, MA, MN, NH & DC). Only in DC, and by a razor-thin margin, did Hillary top 50 percent, at 50.13 (90 percent of a 55.7 percent turnout).
Bottom Line. Assume that challenges will fail. Trump can claim not only an electoral vote landslide — 57 to 43 percent — but also two geographic landslides — 85-15 total area and 90-10 county-level. And with full absentee ballot counting Trump would have trailed Hillary by less than one percent in the official nationwide popular vote.