Here’s the scary way Trump could win without the electoral or popular vote

<span>Photograph: Toby Brusseau/AP</span>
Photograph: Toby Brusseau/AP

In an ordinary time, under ordinary political conditions, the specter of another Trump presidency would be strictly the stuff of nightmares. The former president is facing 40 criminal charges for his mishandling of classified documents, and will have to interrupt his campaign next summer to defend himself in court. Those charges are apart from the 34 felony counts of falsifying business records he faces in New York. And then there’s the rape defamation lawsuit, which will begin in January, and which he will almost certainly lose.

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The American people, however, can be awfully forgiving. In current polling, Joe Biden and Donald Trump are tied nationally; no Republican nominee has emerged to challenge Trump. But, as we have been learning pretty much continuously since 2000, the will of the majority of the American people no longer matters all that much in who is running their country.

The abstruse and elaborate mechanisms of the US constitution relating to elections, which used to be matters for historical curiosity, have become more and more relevant every year. In 2024, there is very much a way for Donald Trump to lose the popular vote, lose the electoral college, lose all his legal cases and still end up president of the United States in an entirely legal manner. It’s called a contingent election.

A contingent election is the process put in place to deal with the eventuality in which no presidential candidate reaches the threshold of 270 votes in the electoral college. In the early days of the American republic, when the duopoly of the two-party system was neither desired nor expected, this process was essential.

There have been two contingent elections in US history. The first was in 1825. The year before, Andrew Jackson, the man from the $20 bill, had won the plurality of votes and the plurality of electoral college votes as well, but after extensive, elaborate negotiations, John Quincy Adams took the presidency mostly by offering Henry Clay, who had come third in the election, secretary of state. Jackson, though shocked, conceded gracefully. He knew his time would come. His supporters used the taint of Adams’s “corrupt bargain” with Clay to ensure Jackson’s victory in 1828.

Jackson was a patriot. He put the country’s interests ahead of his own, to preserve the young republic. The United States is older now, and the notion of leaders who would put the interests of the country ahead of themselves and their party is archaic. The 2022 midterms were unprecedented in terms of how many election-deniers were appointed to serious office.

“Many 2020 election deniers and skeptics ran for office in the 2022 midterm elections, with 229 candidates winning their elections,” a University of California report found. “A total of 40 states elected a 2020 election denier or skeptic to various positions, from governor to secretary of state to attorney general to congress.”

The American people are already disinclined to believe in the legitimacy of any election that doesn’t conform to their own desired outcome anymore, left or right. In 2016, at the inauguration of Donald Trump, the crowds chanted “not my president”. As of August, the percentage of Republicans who think that 2020 was stolen is near 70%.

So the possibility of the electoral college releasing a confusing result, or being unable to certify a satisfying result by two months after the election, is quite real. The electoral college, even at its best, is an arcane system, unworthy of a 21st-century country. Maine and Nebraska don’t necessarily have every elector go to the party that won the state as a whole. There have been, up to 2020, 165 faithless electors in American history – electors who didn’t vote for the candidate they had pledged to vote for.

In 1836, Virginia faithless electors forced a contingent election for vice-president. If the 270 marker has not been reached by 6 January, the contingent election takes place automatically. And the contingent election isn’t decided by the popular votes or the number of electoral college votes. Each state delegation in the House of Representatives is given a single vote for president. Each state delegation in the Senate is given a single vote for vice-president.

The basic unfairness of this process is obvious: California with its 52 representatives, and Texas with its 38 representatives, would have the same say in determining the presidency as Wyoming and Vermont, which have one apiece. State delegations in the House would favor Republicans as a matter of course. In the struggle for congressional delegates, Republicans would have 19 safe house delegations and the Democrats would have 14, as it stands, with more states leaning Republican than Democrat.

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All that would be required, from a technical, legal standpoint, is for enough electoral college votes to be uncounted or uncertified for the contingent election to take place, virtually guaranteeing a Republican victory and hence a Trump presidency. It would be entirely legal and constitutional. It just wouldn’t be recognizably democratic to anyone. Remember that autocracies have elections. It doesn’t matter who votes. It matters who counts.

In 2021, I published a book about American political decline, The Next Civil War, which examined the structural crises underlying the collapse of the American political order, but I didn’t include a chapter on the electoral system because it seemed too far-fetched, the stuff of historical figments. Those deep structural crises are now, rapidly, overtaking the electoral system itself. A contingent election would be, in effect, the last election, which is the title of the new book I co-wrote with Andrew Yang about exactly that possibility. The rot is advancing faster than anybody could have imagined. Figments from history are now hints to the future.

Polls aren’t worth much at the best of times but this year they are particularly meaningless. Democrats have taken comfort from a recent New York Times/Siena College poll that showed how the Republican advantage in the electoral college, which was 2.9% in 2016, rising to 3.8% in 2020, has diminished to less than a single percent, according to the most recent data. None of it matters.

The real danger of 2024 isn’t even the possibility of a Trump presidency. It’s that the electoral system, in its arcane decrepitude, will produce an outcome that won’t be credible to anybody. The danger of 2024 is that it will be the last election.

  • Stephen Marche is a Canadian essayist and novelist. He is the author of The Next Civil War and How Shakespeare Changed Everything