Hillary Clinton's Electoral College Defeat: It Almost Happened to George W. Bush in 2004

9 Pages Posted: 13 Dec 2016 Last revised: 15 Dec 2016

Date Written: December 13, 2016

Abstract

Supporters of Hillary Clinton are understandably upset about President-elect Donald Trump's victory in the Electoral College, as a result of which it appears he will lawfully take office on January 20, 2017, as the 45th President of the United States.

Both Democrats and Republicans, however, are drawing the wrong historical parallels to the shocking outcome of the 2016 presidential election. Everyone compares it to 2000, when Democrat Al Gore defeated Republican George W. Bush by a much narrower margin in the popular vote, while Bush achieved a narrow majority in the Electoral College.

Many have also pointed to three earlier cases in American history when the candidate who lost the popular vote eventually won the presidency, either in Congress (1824), in the Electoral College (1888), or in the Electoral College pursuant to resolution of disputed votes by an Electoral Commission specially created by Congress (1876). And it is true that all five of these elections point to serious flaws in our electoral system that cry out for a constitutional amendment.

But the better and more intriguing parallel, one to which Republicans in particular should pay closer attention, is to President Bush's reelection in 2004. Democrat John Kerry very nearly succeeded in stealing the presidency from Bush by doing exactly what Trump did succeed in doing in 2016: winning by narrow margins in a handful of large, crucial, midwestern states, while losing the overall popular vote by a healthy margin.

This historical precedent, only 12 years old, should make Republicans recognize that they have as much of a vested interest as Democrats in amending our Constitution to get rid of the dangerously archaic, unpredictable, and anti-popular Electoral College.

The author of this essay is working on such a proposed draft constitutional amendment.

Keywords: Electoral College, presidential elections, popular vote, election law, John Kerry, George W. Bush, Hillary Clinton, Donald Trump, 2000 election, 2004 election, 2016 election

JEL Classification: K19

Suggested Citation

Wildenthal, Bryan H., Hillary Clinton's Electoral College Defeat: It Almost Happened to George W. Bush in 2004 (December 13, 2016). Thomas Jefferson School of Law Research Paper No. 2883806, Available at SSRN: https://ssrn.com/abstract=2883806 or http://dx.doi.org/10.2139/ssrn.2883806

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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