Time for an election fiasco? Three times before, a presidential candidate who won the most votes lost

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Three times in American history -- in 1876, 1888 and 2000 -- the presidential candidate who won the most popular votes lost the election. In another, 1824, the results were so confusing the House of Representatives had to pick the winner.

The usually reliable NBC News/Wall Street Journal poll taken before last Monday's "horses and bayonets" debate showed that in this year's election Republican Mitt Romney and Democrat Barack Obama are dead even, each with 47 percent of the sample.

Does that mean it could happen for the fourth time -- that the candidate with the most popular votes loses in the Electoral College? Unlikely, maybe, but surely possible.

The Electoral College -- it wasn't called that originally -- was the brainchild of the Founding Fathers. Article II, Section 1, Clause 2 of the Constitution states, "Each state shall appoint ... a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the Congress." The electors were expected, but not required, to vote for the candidate who carried their state. This year, the candidate who wins must receive at least 270 electoral votes.

This "indirect election" system is unique to the United States. It has led to some messy elections, and it may soon lead to another.

My favorite was in 1876, when the Republican, Rutherford B. Hayes, ran against Democrat Samuel J. Tilden. The election was so corrupt it is a wonder the system that made it possible survived.

It got dirty right from the start. Republican leader James Garfield told a rally that the Democratic Party represented "secession, disunion, slavery and all that went to make disunion and slavery horrible in the eyes of men and in the eyes of God." Col. Robert G. Ingersoll told a crowd of Union veterans, "Every scar you have on your heroic bodies was given you by a Democrat."

Democrat Tilden nevertheless surged ahead in the popular vote and Republican Hayes went to bed convinced he had lost the election. Gen. Daniel Sickles, a one-legged veteran of the Union army, wasn't so sure. He stopped by Republican Party headquarters in New York City election night, pawed through telegrams and discovered that votes were still being counted on the West Coast and in some places in the South. Over the signature of the party chairman, he sent messages to party stalwarts in South Carolina, Louisiana, Florida and Oregon. "With your state for Hayes, he is elected. Hold your state!" Republican leaders, Garfield included, boarded trains and headed south to help.

Hayes probably won South Carolina fairly; Florida was a lot closer, with one count putting Tilden ahead by 94 votes. Those two states, Sickles figured, could be fixed, and they were. The big problem was Louisiana, where unofficial counts indicated Tilden had won by more than 6,000 votes.

Voting in all the disputed states was marked by stuffed ballot boxes, repeat balloting by voters paid for their trouble and ballots marked to confuse illiterate voters. Lew Wallace, a Union general who went on to write "Ben Hur," was sent to Florida to make sure the Republicans won. "If we win," he wrote his wife, "our methods are subject to impeachment for possible fraud; if the enemy win, it is the same thing."

It was such an unholy mess that Congress appointed a commission -- eight Republicans and seven Democrats -- to resolve it. They voted, no surprise to anyone, 8 to 7 for Hayes, who won in the Electoral College, 185 to 184. Tilden had won the popular vote, 4,284,020 to Hayes' 4,036,572.

The same sort of thing happened 12 years later when Republican Benjamin Harrison defeated the Democratic incumbent, Grover Cleveland, 233 to 168 in the Electoral College, while losing the popular count by 91,000 votes.

It almost happened again in 1968 when Richard Nixon won a comfortable edge in the Electoral College, 301 to 191, but defeated Hubert Humphrey in the popular count by only 512,000 votes.

The 2000 election between Al Gore and George W. Bush was just as messy as the Hayes-Tilden affair in 1876. The networks declared Mr. Gore the winner, then retracted, and by 4:30 a.m. Mr. Bush was leading by fewer than 2,000 votes in the decisive state of Florida.

Once again, party stalwarts were dispatched from Washington and elsewhere to make sure their side won the state's crucial 25 electoral votes. In the end, the Supreme Court stopped the recounts, essentially declaring Mr. Bush the winner. Democrats cried they were robbed, but there was nothing they could do about it. Mr. Bush won the electoral count, 271 to 266, thanks to Florida. Mr. Gore won the popular vote, 50,999,897 to Mr. Bush's 50,456,002.

The only serious effort to change the system occurred in 1971 when the House passed a resolution calling for a constitutional amendment to abolish the Electoral College and install a system in which the winning ticket (as long as it received 40 percent of the popular vote) would be declared the winner. If the winning ticket failed to reach the 40 percent threshold, a runoff election would be held. The resolution faltered in the Senate and faded away.

The result is that this year's election in these final days comes down to the battle for electoral votes in seven swing states. Most experts identify them as Florida, Ohio, Virginia, New Hampshire, Iowa, Colorado and Wisconsin. The rest of us can simply stand by and watch.

Crazy is what it is.

opinion_commentary

James M. Perry, a retired chief political correspondent for The Wall Street Journal, is contributing observations to the Post-Gazette this election season.


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