The Terrifying Legal Election Scenario That Keeps Me Up at Night

The conclusion of Evan Osnos’s big New Yorker profile of Joe Biden from last week ends on a note that is still ringing in my mind. Osnos asks the president about how it all might end in November—or beyond—and whether Trump, if he’s bested in the 2024 election, will concede the race. Biden doesn’t seem to be under any delusion: “Losers who are losers are never graceful,” he said. “I just think that he’ll do anything to try to win. If—and when—I win, I think he’ll contest it. No matter what the result is.”

That is the only quote along those lines in an article that otherwise raises few specters of the calamities that might come on the heels of Trump’s defeat. But on NPR’s Fresh Air over the weekend, Osnos was more expansive on that point, and he makes it clear that Biden was as well. His exchange with host Tonya Mosley is worth quoting at some length:

I think we all know the kinds of things Biden is talking about. Say Biden wins narrowly. It’s hard to imagine that we won’t see violence, encouraged by Trump himself. Those fake elector slates that they couldn’t quite pull off in 2020? They’re going to be more organized about that sort of thing this time around. It’s chilling to think about what might be happening in this country if this election, like the last two, comes down to a few thousand votes in three or four states. Trump and his MAGAs will break any law they think they need to break to reverse the outcome.

I worry a lot about that. But here’s the scenario that freaks me out the most. Because in this scenario, Trump could lose the popular vote and still pull out a win, and it will all be perfectly constitutional and legal.

Let’s look at the Electoral College map. Say Biden wins Pennsylvania, Michigan, and Wisconsin. But say Trump wins Georgia, Arizona, and Nevada. None of these outcomes is at all farfetched. Georgia and Arizona were each decided by around 11,000 votes. Nevada has been blue since 2008, but Trump leads Biden in every recent poll, sometimes by 2 or 3 points but other times by 8 or even 10.

Now: Remember the two states that award electors by congressional district. That is, the presidential candidate who wins in a given district gets that district’s one electoral vote. These are Maine and Nebraska. Maine has two congressional districts, one very blue (along the coast), the other pretty red. Nebraska has three, two quite red and one, which includes Omaha, that is arguably blue-ish. In 2020, Trump won the rural Maine district, and Biden carried the urban Nebraska one.

Assume things play out as I laid it out above in the six states mentioned. Assume also that the results in Maine and Nebraska repeat themselves. Final tally? Biden 270, Trump 268. Biden wins.

You can imagine how Trump, his party, and his movement will react to that one. But hey—at least it’s Biden with the 270 going into all the recounts and lawsuits and insurrections.

But here’s the nightmare scenario that keeps me up nights. Imagine Trump carries that urban Nebraska district, which is far from impossible—it’s represented by a Republican in Congress now, and the district’s Cook rating is dead even.

Then what do we have? A 269-269 tie. No one wins.

As I hope you know by now, that gives us what they call a “contingent” election—it’s kicked to the House of Representatives. It won’t be the current House that votes, but the next one, the one elected in November.

Ah, good, you say—after all a lot of people think the Democrats will recapture the House. They may, but that won’t matter. Under the rules of the cockamamie 12th Amendment, adopted back in 1804, each state delegation gets one vote. So Wyoming’s one House member, unfortunately no longer the principled Liz Cheney but MAGA-head Harriet Hageman, would have the same voting power as her 52 California colleagues.

So it will be a matter of which party controls more state delegations in the next Congress. Which party is that now? You guessed it. The Republicans, thanks in part to population sorting and also in part to all that aggressive gerrymandering, have majorities in 26 state delegations, and the Democrats in just 22. The parties are tied in two states, Minnesota (four seats each) and North Carolina (seven each). The District of Columbia, which gets to vote in presidential elections, is not permitted a vote in a contingent election.

But there’s an election in November, you say; can the Democrats pick up seats in Minnesota and North Carolina and recapture majorities in two more states? Alas, that’s extremely unlikely. Pickups in Minnesota and North Carolina will be difficult to come by, because the districts represented by Republicans are pretty red. And of the 26 states that Republicans control, none of the delegation splits are especially close. Take Arizona and Georgia as examples. They’re hotly contested at the presidential level, but in the House, the GOP controls Arizona 6-3 and Georgia 9-5.

So, picture it. Assume Trump loses the popular vote, which still seems likely, though perhaps not by as much as last time (around seven million). And assume the Democrats recapture the House, which many people believe will happen. He will still win the presidency, 26 to 22 (Minnesota and North Carolina will presumably end as draws). And it will all be legal.

The moral of the story? Well, one moral is that the Democrats had better invest heavily in the 2nd congressional district of Nebraska, because the entire election may well hinge on Biden carrying that district and eking out those 270 electoral votes.

Another is that it would be nice to amend the 12th Amendment, although since that requires the agreement of three-quarters of the states, that’s never happening.

But the real moral is that we are stuck with an antidemocratic system that turns losers into winners. Democrats have won the popular vote in seven of the last eight elections. Which means that it was the Electoral College that bore these fruits: the Iraq War, the torture scandal, the great financial meltdown under George W. Bush (the Supreme Court is partly responsible for all these, too), and the horrors of the Trump presidency. That includes the pandemic, the million-plus dead (maybe 40 percent of them preventable with swifter presidential action, according to studies), the shattered families, the broken economy, and all the ensuing mayhem—the Electoral College paved the way for it all.

If this becomes the third election of this century in which baroque and antiquated rules hand the presidency to the person who got fewer votes, that will constitute a huge democratic crisis. And how will the system respond? We know the answer: By doing nothing. Actually, with Trump back in the White House, the system will more likely respond by handing absolute power to the man who never should have won in the first place. Omaha—our fate is in your hands.