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An Unlikely, But Frightening, Scenario

My post on Friday offering a scenario according to which John McCain might win was the most-read in the history of this blog — in part because of conservatives and Republicans desperate for a glimmer of hope and because of liberals and Democrats thrilled to have an opportunity to scoff at the notion of a McCain comeback.  I said it wasn’t the strongest case, but it was the only case, and this morning, with evidence over the weekend of a trend toward Barack Obama, it is weaker than it was on Friday.

But say, in spite of everything, my scenario works out — that the polls are wildly overestimating the size of the Democratic electorate in the 18 battleground states and that McCain ekes out victories in most Bush 2004 states and Pennsylvania and wins the electoral count by something with something like 274 electoral votes.  Given the nature of the polling this weekend, Obama is certainly continuing to show powerful strength in his stronghold states, which, with the exception of Texas, are the nation’s most populous — California, Illinois, New York, New Jersey in particular.

Should that happen, there will almost certainly be a split in which Barack Obama wins the popular vote nationwide, and by a vastly larger amount than the 500,000 by which Al Gore won it in 2000. Gore’s margin was one-sixth of a percentage point. It was, of course, only the second third time in American history that the person who received the most votes was not the person who became president (that was the story with the Tilden-Hayes election in 1876 UPDATE and the Cleveland-Harrison election of 1888). If the nation’s attention hadn’t been focused on Florida for 36 days, there might well have been a different kind of legitimacy crisis for George W. Bush, one he escaped because of the more pressing matter of hanging chads and butterfly ballots and the like. By the time the Supreme Court ended the election in December, the efforts by Democrats to encourage “faithless electors” to change their votes in Gore’s direction ran out of steam and the discussion of the Electoral College was effectively tabled.

There would be no such interceding event this year (one presumes). A McCain victory in the Electoral College with an Obama popular victory of 2 or 3 million votes at a minimum (somewhere between 1.5 and 2.5 percent under this scenario)  would provoke a national crisis.

It is true that we don’t really have a national election but rather 50 separate state elections. It is true that the Electoral College is a constitutional body and the only official selector of the president. It is true that the existence of the Electoral College is crucial to preserving some sort of balance in the United States between the small states and the larger states, and serves as yet another mediating institution — another means by which unbridled political power is checked.

All this is true. But it is beside the point in 2008. The legitimacy questions that dogged Bush would dog McCain to a far greater extent, especially with a Democratic  Senate arguing and acting on the argument that the election results require its members to exercise the advise-and-consent provisions of the Constitution in blocking all McCain appointments that do not represent the more liberal nature of the overall electorate.

A McCain presidency under these conditions would be a model of institutional paralysis. With the exception of the veto, which McCain would of course relish more than any other presidential power, he would be among the weakest chief executives in modern times, if not the weakest. And it would be interesting to see whether the Electoral College itself could survive it. (It would be abolished, presumably, not by amending the Constitution but by passing laws in the states requiring electors to vote for the nationwide vote winner; such a law already exists in a few of them.)

Since we have nothing to do but speculate until tomorrow, that’s my morning speculation.