The legal system in the United States is marked by not only a redundancy of laws, but at its core, a series of checks and balances written into the Constitution, which is the source of all federal law.  The most notable evidence of this is the separation of powers as evidenced by three distinct branches of government: the Executive branch, which includes the President; the Legislative branch, which includes the Senate and the House of Representatives; and the Judicial branch which includes a trial and appellate court system. 

How Americans select the President, the leader of the Executive Branch, is a process that itself has built-in checks.  While all citizens have the right to vote, each vote does not directly determine the outcome of a Presidential election.  Instead, each state is given a certain number of electoral votes based on its population.  The winner of the popular vote in a particular state receives all of the electoral votes for that state.  Accordingly, it is the electoral votes that officially elect the President. 

Winning without the popular vote

It is highly possible to win the electoral vote -  and thus win the Presidency - without winning the popular vote.  This can occur if a candidate wins the popular vote by landslides in two or three large states like California, New York, and Illinois but loses a large number of the remaining states by tight margins.  This has happened five times with the most notable example being the election of George W. Bush to his first term in office.  No President seeking reelection, however, has won the electoral vote without also winning the popular vote.

With President Obama trailing in some nationwide polling but leading in enough states to provide him with an electoral vote victory, it is a possibility that he will make history by winning re-election without a popular vote victory.  While this may not affect his legal power to execute the office of the President, the question is will it -- as a practical matter -- impact his ability to do so.  Americans often talk in terms of the concept of “mandate” which translates into the issue of whether a legislator or government official truly has the support of the people in pursuing a policy or set of policies.

This question is particularly acute given the resistance that Obama has already faced. Speaking at the Democratic National Convention, former President Clinton stated:  “Though I often disagree with Republicans, I actually never learned to hate them the way the far right that now controls their party seems to hate our President and a lot of other Democrats.”  It will be interesting to see what results if President Obama wins the election without winning the popular vote.