Five days before the last presidential election in 2016, I wrote a column about the weirdest ways the election could end. At the time, Hillary Clinton had only a 2-point lead in the RealClearPolitics average, 47 percent to 45 percent, and the chances of a photo finish were very real — something I managed to forget by the time Election Day itself rolled around. And, as it turned out, one of my weird endings — Donald Trump winning the Electoral College while losing the popular vote — is precisely what happened.
But this time is different. Vice President Joe Biden has had a far more consistent lead than Clinton did, and he's coming into the homestretch with a larger lead as well. He's up by more than 7 points in the RCP average and by more than 9 points in the FiveThirtyEight.com average, and has never led by fewer than 4 points in either. Moreover, in both averages, Biden polls at more than 50 percent, meaning that even a late surge of undecideds and/or defections from third party voters toward the incumbent would not be enough to give President Trump a second term. Clinton never polled so high, and regularly dipped down to the mid 40s. Biden's favorability is far higher than Clinton's was as well, while Trump's remains deeply underwater. Moreover, the Biden campaign has learned from Clinton's mistakes. He has not ignored the Midwest states that proved so crucial to Trump's victory, and his closing argument is about taking action — on COVID, on the economy, and on health care — to improve the lives of Americans.
So this year, if something weird happens, it'll surely be a sign that something fishy is going on, that the most lurid fears of election theft or foreign hacking have come true. Right?
Well, maybe not.
While Biden is in a much better position than Clinton was, things could still get weird in the home stretch, if two things happen. First, the national polls would have to tighten, as wavering Republicans and independents come home to Trump. Second, they'd have to tighten more than nationally in Pennsylvania, the most vulnerable of the "blue wall" states that Clinton lost, where Biden leads by only 5 points (the same margin Clinton led by five days before the election in 2016), versus his lead of 9 points in Wisconsin and 8 points in Michigan.
But if both of those things happen — and each is possible — we could get one of the following strange photo finishes.
1. The Electoral College overrules the popular majority.
If Biden wins the popular vote by 9 points, he is going to be the next president. Trump will lose not only Pennsylvania, but Florida, North Carolina, Arizona, Georgia, possibly Iowa or Ohio, maybe even Texas. But if the polls tighten sharply toward the end of the race, and Biden wins the poplar vote by only 5 points instead, could Trump still win the Electoral College?
Yes, he could. Move every state by 4 points toward Trump, and he wins all those other states that sit to Pennsylvania's right. Biden would still win the Upper Midwest states of Minnesota, Wisconsin, and Michigan, but Pennsylvania would be within a point. A normal polling error — or a news story like the ongoing riots in Philadelphia that moved voters more locally than nationally — could deliver a Trump squeaker.
If that happened, the map would look like this:
Such a result would obviously be a nightmare for Democrats. But it would be a nightmare for democratic legitimacy as well. In this hypothetical scenario, Biden would have won the national popular vote by 5 points — a larger margin than Barack Obama achieved in 2012. Given the paucity of votes for third-party candidates this cycle, that would almost certainly imply he won an outright popular majority — more than 50 percent of the vote. And yet, he would have lost the election.
The Electoral College has awarded the presidency to a candidate who won only a minority of the votes before. However, it has never voted against a candidate who won a popular majority — Hillary Clinton and Al Gore were both plurality victors. Doing so would be perfectly in accord with the rules of the Constitution, and there would be no legal recourse to prevent it. But it would, reasonably, lend an enormous groundswell of support to those on the left who would replace America's Constitution entirely — as well as to those who would prefer to break up the country.
2. Trump demands every vote be counted.
Trump has spent much of the campaign denouncing absentee voting and demanding that results be announced on Election Night even though there's no way all ballots will be counted by then — in part because some states, like Pennsylvania, are forbidden from counting ballots until Election Day. Trump's tweets and chants have no legal force, though, and notwithstanding Justice Brett Kavanaugh's poorly-reasoned and factually-challenged opinion on the matter, the Supreme Court is not going to step in to ratify a blatant attempt to rig the vote count. Plainly legitimate votes will be counted, and unless the vote is very close the courts are unlikely to get involved.
A close election is possible, of course, and in that case the Court's hostility to voting rights could matter. But the weird scenario wouldn't be a close election where Trump demands the counting stop while he's ahead and Democrats protest in the streets to count every vote. That's the scenario that Democrats dread, not a scenario that would shock. No, the weird scenario would flip that script — and in a close election it could well happen.
Democrats are voting early in much larger numbers than Republicans. They're also turning in their absentee ballots much earlier and are more inclined to use drop boxes that don't rely on the Postal Service. In that sense, Trump's rhetorical strategy has backfired, encouraging Democrats to vote in ways that assure their votes will be counted.
If the Democrats have mostly voted earlier, though, then it's possible that the absentee ballots that remain to be counted after Election Day skew not toward Biden, but toward Trump. This is particularly true if the reason Trump remains in contention is a late surge of undecided voters coming home to the GOP — at least some of them active-duty military and others who have no choice but to vote absentee.
So what if, in the wee hours of the morning of Nov. 4, the map looks something like this:
In this scenario, the national polls have tightened, and Pennsylvania and Nevada have tightened more than the country as a whole. Biden is still clearly well ahead in the national popular vote, and he's leading solidly in states with far more electoral votes than Trump is. But his leads in a host of other states that could put him over the top — from Pennsylvania to Florida to Nevada — are narrow, and shrinking steadily as late-arriving ballots are added to the tally. Suddenly, it's the Republicans who are out there demanding that every vote should be counted, and Democrats who want to run out the clock.
If that happened, Republican legislatures in states like Pennsylvania and North Carolina would be expected to do a rapid about-face for partisan reasons. Would Democrats do the same? Would they take the GOP to court? If they did, would Justices like Kavanaugh and Roberts hold with their prior opinion that the rules for voting or counting ballots cannot be changed after the fact for reasons of equity? And how would the Democratic argument play publicly when on the one hand they'd be pointing to the moral force of a substantial popular vote win to argue that Biden was the candidate with the people's support, while on the other arguing that, in some states, some votes shouldn't be counted at all?
However this scenario might end electorally-speaking, it would be bound to take partisan resentment and cynicism on all sides to depths we probably weren't aware could even be sounded.
3. Nebraska's second district sends the election to the House.
In 2016, Evan McMullin's third-party bid for the Mormon Never-Trump vote raised the possibility of Utah dropping out of the Republican column. In a close election, that could have meant that no candidate won a majority of the electoral votes — which would have thrown the election to the House of Representatives.
This year, there is no third-party candidate capable of winning any electoral votes — but a tie is still possible, particularly if Pennsylvania and the Southwest move in opposite directions in the last days of the campaign. In that case, we could wind up with a map something like the following:
National polls have tightened, but Biden retains a clear popular vote majority. He's fallen short in the Southeast, but held on to the Upper Midwest and even broken through in Arizona. But Pennsylvania has slipped through his grasp. The Electoral College is deadlocked — unless Nebraska's Second District tilts his way, giving him a single vote majority.
This scenario is unlikely now — FiveThirtyEight.com estimates a less than 1 percent likelihood of an Electoral College tie at present. But it becomes much more likely if key states break a certain way. If Trump wins Pennsylvania, the odds go up to 2 percent. If Biden also wins Arizona, the odds go up to 4 percent. If Trump also holds Florida, but Biden holds Maine and New Hampshire, the odds of a tie are nearly 20 percent (all probabilities based on FiveThirtyEight's handy little scenario tool).
The possibility of this scenario is one reason why Trump is campaigning in Nebraska, a state he is almost certain to win. If Biden can pick up that one electoral vote from metro Omaha, a tie becomes almost impossible, and Arizona — where Biden's lead is small but steady — becomes a viable backup plan to losing the Southeast plus Pennsylvania. If he can't, then that same scenario throws the election to the House.
What happens then? While the Democrats control the chamber, that wouldn't matter for this vote. If the Electoral College deadlocks, the House decides the winner on the basis of one vote per state delegation. Right now, Republicans control 26 delegations — and it's a safe bet that they'd vote to re-elect Trump even if he lost the popular vote by a substantial margin, regardless of the consequences to the legitimacy of our democratic institutions.
But that could change on Nov. 3. The newly-elected House is the one that gets to vote if there is no Electoral College winner. And if the Democrats gain a seat each in Michigan, Pennsylvania, and Florida, and don't lose their majority in Minnesota, then each party would control 25 delegations, and the House would be deadlocked as well. Then what? There is no constitutional provision for breaking a tie in the House of Representatives. However many ballots it might take, the House would have to keep voting until it chose a president.
The wheeling and dealing of both parties behind the scenes would be like nothing the republic has ever seen, at least not since 1876. And the future of the country would depend on an unprecedented act of bi-partisan comity achieved in the teeth of the most brutal partisan battle in the country's history.
Whoever could pull that off would surely have earned the right to be president.
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