“Nobody will ever deprive the American people of the right to vote except the American people themselves and the only way they could do this is by not voting.” –President Franklin D. Roosevelt
Tomorrow, less than 6 of every 10 U.S. adults will elect the 45th U.S. President, the most powerful person on the planet. Only about 28% of estimated eligible voters voted in the 2016 Republican and Democratic presidential primaries. Since 1980, voting-age turnout in the presidential general elections has varied from 48% to 57%. U.S. turnout in the 2012 presidential election was 53.6%. Woody Allen once said, “80 percent of success is showing up.” By that measure of voting participation success, we still have a long way to go.
I know something about the power of one vote. In 1990 I was elected Ohio Attorney General in the closest statewide election in Ohio history. My margin is easy to remember:
1,234 votes out of 3.4 million votes cast, less than one vote per precinct, earning me the nickname, “Landslide Lee.” Under Ohio law, there was an automatic recount, and 6 weeks later, I was declared the winner. I knew about hanging chads long before Al Gore. But although I was sworn in on January 14, 1991, my opponent, State Senator Paul Pfeifer (now well-respected Ohio Supreme Court Justice Paul Pfeifer), filed a lawsuit contesting the election. On March 11, 1991, the Ohio Supreme Court ruled unanimously that I could unpack my boxes. In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 58 Ohio St.3d 103.
To this day, I remain thankful not only for my talented campaign staff led by Kent Markus, who later became my first Chief of Staff in the Attorney General’s office, but also for my brilliant lawyers in the election contest - Judge Richard M. Markus , Judge Kathleen M. O'Malley, and Steven S. Kaufman. At the time they represented me, Judge Markus and Judge O’Malley were partners at Porter Wright (then Porter, Wright, Morris & Arthur) and Steve Kaufman was a partner at his predecessor firm, Kaufman & Cumberland. I’m very proud that Judge O’Malley served as my Chief Counsel and later as my second Chief of Staff when I served as Attorney General, and Judge Markus has served both as a Distinguished Visiting Professor and Adjunct Professor at Cleveland-Marshall College of Law.
That election, more than any other, made me appreciate that there is no such thing as a mandate. Whoever wins tomorrow night, regardless of their electoral or popular vote margin, would be well-advised to remember that a very significant number of citizens did not vote for them. Ronald Reagan defeated Jimmy Carter with over 90 percent of the Electoral College votes but Reagan won less than 51 percent of the popular votes cast. Had 3.6 percent of the electorate voted the other way in 2008, Senator John McCain would have been President. In 2004, if 1.25 percent of Bush’s voters had switched sides, Senator John Kerry would have won. In 2000, George W. Bush won the Electoral College but lost the popular vote to Vice President Al Gore. In 1992 and 1996, Clinton won majorities in the Electoral College, but he never won the majority of the popular vote. In the 2012 presidential election, President Obama won with 332 electoral votes but he won only 51.1% percent of the popular vote.
If a mandate is defined as the authority to govern via the fair winning of a democratic election, then despite the sore loser and conspiracy theory crowd who may claim widespread voter fraud with little or no evidence to support it,the next President will have a mandate. But if a mandate is defined by the notion that the margin of victory allows the next President to ignore, patronize, or stampede the political opposition in order to advance an agenda, then the next President will not have a mandate.
The next President inherits a divided country and a dysfunctional, hyper-partisan Congress. For our country to begin to heal and for our next President to succeed, we can ill afford a sore loser or an arrogant winner. As former U.S. Secretary of Defense Robert Gates has noted, our next President must “remind all Americans of our common destiny, and that our fate as a nation and as a people is bound up with one another. Our new leader should appeal, in President Abraham Lincoln’s words, to ‘the better angels of our nature’.”
Lee
Lee Fisher
Interim Dean and Visiting Professor of Law
216-687-2300