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There Are Worse Things to Fear Than an Electoral College Tie

There is no easy remedy for the ways in which President Trump threatens the sanctity of our elections.

Jim Watson/AFP/Getty Images

On Thursday, Quinnipiac University released a series of polls on presidential head-to-head match-ups in Michigan, Pennsylvania, and Wisconsin. President Donald Trump narrowly won all three of those states in 2016 and, with them, the White House itself. Quinnipiac’s polls showed the current Democratic candidates ahead in the first two states by varying margins, as well as a sizable lead for Trump against his current challengers in Wisconsin.

State polls should be taken with a large grain of salt, especially when Election Day is still nine months away and the Democratic field is in flux. Quinnipiac’s findings still illustrate how tumultuous this fall’s election could be. Assume first that Trump’s opponent wins every state that Clinton won in 2016. Assume next that they flip Michigan and Pennsylvania, as the Quinnipiac poll indicates, and secure all four of Maine’s electoral votes. In that event, the Electoral College would deadlock in a 269-to-269 vote, adding an extraordinary layer of chaos and uncertainty to the electoral process.

And yet, in 2020, this might not be the worst of all possible Election Day scenarios. After all, the Constitution provides us with a road map to follow in the event of a tie: If no candidate commands a majority when the electors gather in December, the Twelfth Amendment would then allow the House of Representatives and the Senate to elect the next president and vice president, respectively. That amendment also states that when the House elects a president, “the votes shall be taken by states, the representation from each state having one vote.” If the current House voted along party lines, the Republican candidate would receive 26 votes, and the Democratic candidate would receive 23 votes. (Pennsylvania’s House delegation is equally divided at the moment.)

That process would be a corrosive blow to Americans’ faith in the democratic process. What sets 2020 apart is that the president has set crises in motion that are potentially more dire. The Ukraine scandal showed that Trump is willing to abuse his power to cheat in this year’s election, that most Republicans support those efforts, and that Congress as an institution is effectively powerless to stop him. Most of the commentary surrounding this year’s vote is about the candidates and the issues, and for good reason. What Americans must also reckon with is how badly it could all go wrong.

Some threats are beyond the country’s immediate ability to control. Americans can only do so much if a natural disaster disrupts the process, as Hurricane Sandy did during the 2012 election. Preventing cyberattacks, whether by foreign adversaries or domestic malcontents, also became more urgent after investigators found evidence that Russian operatives had compromised state and county systems in 2016. This year’s Iowa caucus showed how even accidental systemic failures can undermine confidence in election results.

The Iowa caucus also illuminated something else: the eagerness with which Trump and his supporters will cast doubt on election returns for their own gain. As Iowa’s woes became apparent on caucus night, the president’s allies quickly claimed that the state Democratic Party was manipulating the results. “Quality control = rigged?” Brad Parscale, Trump’s campaign chairman, wrote on Twitter. Donald Trump Jr., the president’s eldest son, accused it of “fixing the results to get the candidate the Democrat Overlords in DC want.” There is no evidence to support those claims, but they served the larger goal of sowing doubt and discord about their opponents and elections themselves. Recent reports alleging that the Russian government intends to interfere in the upcoming election to aid Bernie Sanders will likely provide Trump with ample grist to further these ends.

Trumpworld’s nihilism comes from the top. In the weeks preceding the 2016 election, most national and state polls predicted a landslide win for Hillary Clinton. Then-candidate Trump began claiming that the election was “rigged” against him and suggesting that he might not accept the results. “I will keep you in suspense,” Trump said when asked about it at the third presidential debate. On Election Day, the Trump campaign filed a lawsuit in Nevada that alleged Clark County officials extended early voting hours “to help Hillary Clinton,” setting the stage to delegitimize what many expected would be her victory that night.

Trump’s surprise triumph left unanswered the question of whether he would accept the results of an election that he lost. But there’s plenty of reason to believe he wouldn’t. As mail-in ballots were counted in California and other states after Election Day, it became clear that Clinton had received roughly three million more votes than Trump did. The president-elect responded by claiming that he would have won the popular vote as well, “if you deduct the millions of people who voted illegally.” If Trump is willing to lie about election fraud in a contest he won, why wouldn’t he do it in one that he loses?

In 2016, his refusal to accept the election result would have been more of a formality. The situation is more urgent this time. Trump regularly jokes that he should serve beyond the constitutional two-term limit. Last May, he retweeted a post on Twitter by prominent evangelical leader Franklin Graham that claimed Trump should serve an additional two years “as pay back for time stolen by this corrupt failed coup,” referring to the Russia investigation. Trump often refers to his impeachment by the House as a “coup” launched against him by Democrats. He consistently signals to his supporters—and the country as a whole—that attempts to remove him from power are illegitimate on their face.

During his impeachment trial, Trump’s lawyers argued that virtually any action he took as president would not be an impeachable offense, so long as it wasn’t an actual crime. Their radical defense of executive power received the tacit support of Republican senators who voted to acquit him. The Atlantic’s Adam Serwer argued this week that the vote marked the GOP’s transition into a “regime party” defined by its desire to maintain power at any cost. “Republican senators affirmatively voted to allow the president to use his official powers to suppress the opposition party, to purge government employees who proved more loyal to the Constitution than to Trump, and to potentially prosecute or otherwise criminally implicate his political enemies without lawful cause, while shielding Trump allies from legal sanction,” he wrote.

Indeed, Trump has spent the weeks since his acquittal purging the executive branch of people he considers disloyal—to him, not to the country—and tightening his control over two key institutions: the Justice Department and the intelligence community. Earlier this week, he announced that he would install Richard Grennell, the U.S. ambassador to Germany and a fervent loyalist, as the acting director of national intelligence. The decision reportedly came after Trump learned intelligence officials had told Congress that Russia was already trying to influence the 2020 election in his favor. He responded with anger not toward Moscow for undermining American democracy but toward Joseph Maguire, the current acting director of national intelligence, and his subordinates who told lawmakers about it.

Other abuses of power could follow. The greatest danger would come from a fully subservient Justice Department that launches sham investigations into Trump’s political rivals, a task that he already tried to outsource in the Ukraine scandal. But less dramatic efforts could be used to manipulate the election outcome. In recent weeks, Customs and Border Protection deployed tactical units to sanctuary cities across the country as a so-called “force multiplier” for deportation efforts there. It’s not impossible to imagine Trump repeating this exercise in key Latino-majority precincts as an intimidation tactic on Election Day, under the guise of fighting voter fraud. In 2018, he deployed military forces to the U.S.-Mexico border and mused about revoking birthright citizenship by executive order—and he wasn’t even on the ballot.

Systemic breakdowns aren’t unknown in American presidential elections. Four candidates won electoral votes in the 1824 race, denying anyone the necessary majority to win in the Electoral College. Though Andrew Jackson had received both a plurality of the electoral vote and the popular vote, the House instead elected John Quincy Adams, who had received the second-largest share in both counts. In 1876, Reconstruction-era violence and disputed state results forced Congress to create a new body to decide the outcome. More recently, the Supreme Court intervened in the 2000 election to effectively make George W. Bush president by ending a recount in Florida.

In each of those circumstances, key participants acted within the bounds of their roles in the system to preserve it. It’s an open question whether Trump and his allies would do the same. Many Americans are generally proud of their democracy and the Constitution. What they may underestimate is the degree to which those are separate things. The United States has always had elected leaders, civilian control of the military, an independent judiciary, and other features associated with liberal democracy. But the Trump era has shown how much of American democracy exists despite the Constitution’s framework, not because of it.

Indeed, perhaps the most decisive factor in the survival of American democracy thus far is that those who held power wanted American democracy to survive. The long-term goal should be constitutional reforms to ensure that self-government doesn’t rest on such shaky foundations. For now, the most important thing we may learn on Election Day is whether any guardrails still exist.