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GOP’s Worst Nightmare: Electoral Stalemate, Constitutional Crisis

The opinions expressed by columnists are their own and do not necessarily represent the views of

This column originally appeared in THE DAILY BEAST.

In looking ahead toward the November election, Republican strategists should take proactive steps to avoid a damaging, dangerous conclusion to the presidential race and to prevent the very real chance that Mitt Romney will win the Electoral College even while losing the popular vote badly to Barack Obama.

The problem stems from the lopsided margins President Obama will surely pile up in a few uncontested states with big populations, including California, New York, Illinois and Massachusetts. Mr. Romney, meanwhile, will prevail by comparable margins in only relatively small states: Utah, Idaho, the Dakotas, Alabama and Alaska. The big states that offer Romney his most plausible path to Electoral College victory will be won by much smaller margins, leaving Obama with a clear popular vote advantage.

All credible scenarios for Romney victory with his “swing state” strategy begin with the GOP nominee holding all 22 states McCain carried, which are worth six additional electoral votes this time because of reapportionment. From this Republican base, Romney needs to implement a three/two/one trifecta: winning back the three traditionally Republican states (Indiana, North Carolina and Virginia) that Obama managed to carry last time; seizing the two perennial battlegrounds that elected George W. Bush twice (Ohio and Florida); and then winning one more state - even a very small state -- (New Hampshire is a likely candidate) to bring him the magic number of 270 electoral votes.

In order to accomplish this feat, Romney needs to add as few as 650,000 votes to McCain's totals in just six decisive states, giving Romney Electoral College victory with the bare minimum of 270 votes, even while Obama won a near landslide margin of nearly nine million votes in the popular total—18 times Al Gore’s popular vote advantage over George W. Bush. A more likely outcome would give Romney better margins of victory in swing states, while carrying a few other hotly contested states in the bargain. For instance, he could certainly prevail in both Nevada and Iowa (where he developed strong local support in the caucuses) for a total of 282 Electoral votes to Obama's 256. But even assuming that in each of the states mentioned above he won by 20,000 votes (bigger than Obama's North Carolina margin last time, and large enough to avoid notorious squeakers like Florida's 528 vote margin in 2000), Romney would still fall far short of a popular vote victory. Even without adding to his own vote totals (despite population growth and expansion of the voter rolls) the president would still pile up an advantage of at least 7 million votes—substantially more than Bill Clinton's comfortable margin of 5 million against George H. W. Bush in 1992.

GOP partisans may blithely dismiss such calculations as meaningless since the Constitution unequivocally declares that the candidate with the most electoral votes becomes the next president, and the national tally of popular votes means nothing in the eyes of the law.

But only once before did a sitting president lose the White House despite winning the popular vote, and Grover Cleveland's 1888 margin over rival Benjamin Harrison was slender - 48.6 percent to 47.9 percent. By contrast, Mr. Obama could prevail by as much as the 7% margin that gave him victory last time, while still losing the Electoral College to Romney.

Grover Cleveland quietly vacated the White House without protest, confirming his reputation as a leader of unassailable integrity and profound humility. Would this happen in 2012? Would President Obama attempt to calm angry spirits of his partisans on November 7th were the results to show a "split decision"?

It's easy to imagine the national levels of rage and indignation, and impossible not to envision the President of the United States lending his voice to the angry chorus. In the five weeks before December 17th, the day when electors formally assemble in their respective state capitals, the president would do everything in his considerable power to push those electors to shift support to him—even if they defied state legislation requiring winner-take-all distribution of electoral votes to the victor in that state and ignored laws of 24 states threatening punishment to "faithless electors." The arguments would be fiery and, most likely, somewhat effective: insisting that basic fairness and democratic principle should trump any concern over the creaky, 19th Century relic known as the Electoral College.

Mr. Obama might even attempt to muddy the waters through last minute advancement of the "National Popular Vote Interstate Compact." Between 2007 and 2011, 8 deeply partisan Democratic states (Maryland, New jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California) and the District of Columbia enacted legislation demanding that their electors cast their votes for the winner of the national popular vote, regardless of which candidate won the state. This provision would only take effect if enough states agreed to this compact to represent a majority of all Electoral Votes; in an emergency, Democrats might attempt to coerce the five wavering states they need to take action in time to make a difference.

Such action would raise a host of Constitutional questions, but the Supreme Court might be unable to provide a final settlement of a disputed election as it did in 2000. For one thing, Obama has already made contempt for the court a hallmark of his presidency - as he did when he used the State of the Union address to openly condemn the Citizens United decision on corporate spending for political advertising. If the court strikes down key elements of ObamaCare in June, the president will no doubt display additional defiance and outrage.

The element of race could give an especially dangerous edge to any protracted battle over a disputed election. How many Republicans would lose heart at the prospect of evicting the nation's first black president on a "technicality" after a clear majority of his fellow citizens expressed support for renewing his White House lease? The prospect of urban violence, economic paralysis and even dissatisfaction in the ranks of the armed forces might afflict the nation—just as the lameduck Congress struggled to avoid disastrous budget cuts, sharp tax hikes, fiscal default other calamities.

What, then, could responsible politicians do to head off the most dire consequences of an inconclusive election?

For Republicans, the answer is easy: they must campaign vigorously in all large states, even those with no realistic possibility for statewide GOP victory. Though the Romney campaign will naturally resist investing precious resources on lost-cause states with hugely expensive media markets (California, New York and Illinois) they should overcome their reluctance. With no super-heated statewide races in these population centers and no visible Republican drive for statewide victory, conservative voters might feel a natural inclination to stay home - allowing Obama to run up his margins. If Romney can hold Obama's margin to 55-45 in some of these heavily Democratic big states, he should win the popular vote; if, however, Democrats run up the score past 60-40, then Obama will win a popular vote majority even if he loses the Electoral College.

Of course, the ideal way to avoid a national crisis over a disputed electoral outcome would be for Governor Romney to win an unexpectedly comfortable nationwide victory, sweeping to Reagan-like success even in states assumed to be solidly Democratic.

Failing that sort of unanticipated landslide, the best policy would be to compete fiercely in every major population center while recognizing that, in this unique election, even popular votes that seem theoretically irrelevant may play a role in averting catastrophe.

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