Can Donald Trump win the presidency again in 2024? The answer depends on the widely misunderstood, fragile structure of the American presidential election process.
Only one president has ever won after losing a bid for re-election — Grover Cleveland in 1892. In 1888, Cleveland won the popular vote but lost in the so-called “Electoral College.”
In 2016, Hillary Clinton became the fifth presidential candidate to win the popular vote (48.5% to 46.4%) but lost the election to Donald Trump in the Electoral College, 304-227.
The popular vote alone doesn’t elect an American president. The truth is best expressed in a quotation attributed to Soviet dictator Joseph Stalin: “It’s not who votes that counts, it’s who counts the votes.”
The winner is decided in the Electoral College where delegates chosen in each state determine the final vote. The Supreme Court (Bush v. Gore, 2000) has ruled that “the individual citizen has no federal constitutional right to vote for electors for President of the United States” and that the state legislature’s power of appointment is “plenary”; the legislature “may, if it so chooses, select the electors itself.”
Each state’s vote in the Electoral College is based on its number of representatives plus two senators, allocated on a “winner-take-all” basis. In 2020, Joe Biden won 41.53% of the Kansas vote, but all six electoral college votes were cast for Donald Trump.
Kansas isn’t a “battleground state,” a state with sufficient electoral votes to swing the election. In 2020, Trump’s forces unsuccessfully challenged the results in Wisconsin, Georgia and Arizona, attempting to reach the required majority of 270 in the Electoral College.
What if there is a disputed election in 2024? If unresolved in the electoral college, a “contingent election” could be held in the House of Representatives where each state (not each representative) gets one vote. Democrats have the most individual votes in the House. However, Republicans control the delegations in 30 mostly smaller states, compared to 18 for the Democrats. Therefore, a contingent election based on one vote per state would probably hand the election to the Republican candidate.
What normally happens if there is no dispute? Then, on Jan. 6 of the new term, the vice president presides over a joint session of Congress and a relatively routine process certifies the count.
On Jan. 6, 2021, that was the setting for the riot at the Capitol. Violent Trump supporters attempted to disrupt the count certifying the election. If they had succeeded, Trump (who was still president) might have declared an emergency or the election might have been thrown into the Republican-dominated House of Representatives, where Trump was certain to win.
However, Vice President Mike Pence resisted efforts by Trump and his associates to persuade him to misuse his presiding position to help Trump. After the riot, he and the legislators returned to complete the count.
Can Trump win in 2024? He still maintains a strong hold over the Republican party. Nineteen Republican-dominated states have passed voting suppression laws or have taken the vote count out of the hands of non-partisan officials.
Therefore, in 2024, legislatures in Republican-dominated states may be able to ignore the popular vote and select their own electors. That would make an election in the House unnecessary. Either way, Trump could win what would be, in effect, a rigged election.
In 2024, we may fear another riot like Jan. 6, 2021. That anxiety should not blind us to the quiet coup being hatched in the Republican states, designed to prevail in the Electoral College. Then, without a shot being fired, our fragile democracy could be gone.
David Nichols is a historian of the Eisenhower presidency and lives in Winfield.
This article originally appeared on Topeka Capital-Journal: Our fragile democracy will face biggest test in 2024 after 2020 test