The Democratic presidential candidates on stage Tuesday and Wednesday night are trying hard to woo primary voters so that, if they prevail, they can then make their case to the general population as the party’s nominee. But the ultimate deciders come 2020 might not be the ones who cast ballots in neighborhood polling stations.
There is a very good chance that the Electoral College will split evenly on Election Day, throwing the race into the House of Representatives. And just as with the popular vote, the majority does not choose the winner. Though Democrats control the House and are likely to hold onto it in 2020, the system currently favors Republicans and all but guarantees Trump will be re-elected.
A Trump win via the House would represent the third presidential contest out of the last six where a Republican triumphs despite losing the popular vote.
An obscure constitutional provision spells out how an Electoral College tie is to be broken, with constitutional law professors and a small band of diehard political junkies just about the only ones versed in its details. An evenly split Electoral College between two major party nominees would be unprecedented in American history; the only times the House decided elections were in the case of Thomas Jefferson and John Quincy Adams, when multiple parties competed and neither candidate got an Electoral College majority.
If the Electoral College splits 269-269 in 2020, the 12th Amendment to the Constitution dictates that the House pick a president and the Senate a vice president. But unlike a vote on a piece of legislation in the House, winning the presidency requires the support of a majority of state delegations — whereby each state votes as a unit to decide a winner, with New York’s 27 House members and New Mexico’s three getting equal say. Though Democrats have more members in the House right now by a 235 to 197 margin, Republicans form the majority of 26 state delegations to the Democrats’ 22, and the GOP is likely to continue to hold most of those state delegations in 2020.
With the Electoral College split, the 117th Congress — House and Senate members elected in 2020 — would undertake the task of choosing the next president and vice president on Wednesday, Jan. 6, 2021, according to federal statute.
Assuming Trump is the Republican presidential nominee, he would all but certainly emerge as the winner. And assuming the 2020 Democratic nominee wins the popular vote, a likely outcome since 2016 standard-bearer Hillary Clinton did by nearly 3 million ballots, a Trump win via the House would represent the third presidential contest out of the last six where a Republican triumphs despite losing the popular vote. (Al Gore received some half-million more votes than George W. Bush in 2000.)
The procedure in this case – a few hundred politicians in the House choosing the president not even by a straight majority – would seem even more undemocratic and unfair than the two races determined by the Electoral College.
“It’s among the most egregious violations of democratic principles imaginable,” is how George Edwards III, a retired professor and author of “Why the Electoral College Is Bad for America,” put it. "There's simply no principle that can justify it.”
With half of the presidential elections in the 21st century resulting in the popular vote loser becoming president, concerns about the nature of American electoral democracy would only intensify. And one of the main critiques of the Electoral College — that it favors small states — would only be more stinging: A state like Rhode Island, with two House members, would have the same say in the decision as Texas, with 36.
Such an outcome would likely lead to drama and political strife beyond what we’ve already seen in the Trump years. To the point that it could be called a constitutional crisis — a conflict with no apparent solution that all sides could agree is legitimate — even though rules on how to proceed are laid out in the Constitution.
So, how would we get here?
Well, winning the Electoral College requires nabbing at least 270 electoral votes, a majority of the total 538. In 2016, Trump effectively won 306 electoral votes, to Democratic nominee Hillary Clinton’s 232. The race was decided by three states that had voted Democratic since 1992 and moved into the Republican column in 2016: Pennsylvania (20 electoral votes), Michigan (16) and Wisconsin (10). The trio is a sore point for many Democrats, as less than 80,000 votes combined for Clinton in the industrial behemoths would have made her the next president.
The three states are receiving considerable attention in the run-up to the Democratic primaries, with a pair of ace political analysts suggesting Pennsylvania and Michigan could both go Democratic with Wisconsin staying Republican. Under this scenario, advanced by David Wasserman for NBC News and Nate Cohn of The New York Times, Trump in 2020 could lose the popular vote by as many as 5 million, but still win a second term by a 270-268 margin in the Electoral College.
Indeed, heading into the 2020 race, Pennsylvania and Michigan look increasingly likely to return to their recent Democratic voting patterns. Trump’s approval ratings hover in the low 40s, tough territory for an incumbent president. In Pennsylvania, House Democrats in 2018 picked up four seats over the course of the year — Conor Lamb in a March special election for a seat long held by a Republican, and three in the November midterms. Democrats also scored well in local races. In Michigan in the midterms, Democrats won two Republican House seats, took the governorship and made striking gains in the state legislature.
Wisconsin, though, is a different story. It’s the focus of both parties’ attention ahead of 2020, with Trump having beat Clinton there by about 10,000 votes out of nearly 3 million cast — the smallest margin in the three decisive states. Both parties are already on the ground, having learned the lesson of Clinton’s decision to all but skip the state until the closing days of the 2016 race.
In fact, there’s reason to think Trump has an edge in Wisconsin. His approval rating there is decent, and a late June Firehouse Strategies-Optimus poll showed him making significant inroads on the Democratic front-runner, former Vice President Joe Biden, closing a 12-point gap in March to trail just 40-46. Additionally, Trump’s approval rating in the state had ticked up during that time, from 41 percent to 44 percent, with only 51 percent disapproving. (Similar polls in Pennsylvania and Michigan show Trump with worse numbers in both dimensions.)
So, Electoral College wins in Pennsylvania and Michigan but a loss in Wisconsin would provide the Democratic nominee 268 votes. In which case, Trump would win with 270 votes, the slimmest margin possible.
But there’s one additional piece of the political-mathematical puzzle that will likely affect the result and wasn’t addressed by Wasserman and Cohn — a single electoral vote in Maine. Nebraska and Maine are the only states to split its electoral votes according to who wins the race in each congressional district, rather than awarding all of them based on the entire state's popular vote.
Political trend lines are moving against Trump in Maine’s 2nd District, the largest district west of the Mississippi and the second-most rural district in the United States. Maine as a whole is going Democrats' way: In 2018 the party won the governorship and state Senate, and GOP Sen. Susan Collins has seen her approval ratings drop precipitously.
If the Democratic nominee can claw back Maine’s 2nd District while winning Pennsylvania and Michigan but losing Wisconsin, Trump’s Electoral College total would drop by one, to 269. And that would be a tie, throwing the race into the House.
Fifteen months out from Election Day, the electoral math is pointing to the very real possibility of a tie, and then election by the House by the minority party. A second Trump term under these circumstances is hardly far-fetched. We would then find out if that makes for a constitutional crisis or just a political one.