Can Democrats Take the Advantage in a Contingent Election Scenario?

Republicans' attempt to steal a victory from Democrats can be thwarted by removing their contingent election advantage

You know what the plan is by now.

Republicans are not focused so much on winning the presidential election via the traditional state-by-state majority-take-all Electoral College method. They know they are not going to win that way.

No, they want to create enough chaos and doubt in the election to advance theories upon which to challenge the election results.

The challenges are going to be solely in states where Harris won, which will likely be most of the battleground states. Perhaps they can get the state legislature to overturn the result to match the one they want. Or get the Supreme Court to order this.

Another option is to reduce the number of assigned state electors so that Trump wins a majority of the appointed electors instead of Harris.

Yet another option is to just create such a shitstorm so that the only way forward is to conduct a “contingent election”.

This could happen in any situation that does not allow for the normal course of business, like if the deadline for the House certification of the electors passes without the certification occurring. How would this happen? Well, an insurrection could stop it. Or slow it down enough to create confusion and uncertainty about how to move forward.

This was obviously the plan behind the Jan. 6, 2021, insurrection that Trump fomented. It failed but could have succeeded if Nancy Pelosi hadn’t insisted upon continuing the certification process as planned. This forced the opposition into acquiescence, as there were no other paths to delay. They were in the process of appealing to the Supreme Court to order a stay, but Pelosi short-circuited that by continuing the certification process.

This time around, another violent coup attempt is not likely, since everyone expects it.

The Secret

But there could be legal shenanigans. This is probably the “secret” that Trump referred to in a speech recently that he and Mike Johnson are withholding from the public. There’s probably going to be some attempt to delay the certification process or throw a wrench in it by litigating the process into oblivion.

A judge over here delays one state’s vote count. A judge over there issues an injunction to not certify until some remedy is fulfilled. These types of things could delay a state’s electoral voting process and give a justification to do……….what?

That’s the question. Who know? But there are probably sketchy lawyers who don’t care about getting disbarred currently writing up legal reasonings for why a contingent election would be necessary. Perhaps one MAGA-ish judge somewhere will agree and order it be so.

In short, even though it’s 100% not Constitutional nor legal, Trump and his acolytes now know that they can possibly take advantage of the spaces between the words in the law to gin up confusion so that no one is sure how to move forward.

And then, their hope is that when the dust settles, we’re left with the contingent election scenario.

Contingency plan

A contingent election is a process that is laid out explicitly in the Constitution for the scenario where a presidential candidate does not secure the majority of appointed electors’ votes.

This would happen if there was a tie, which is technically possible. The vote could plausibly end up being 269-269. Or it could happen if there were more than two candidates, as the winner could conceivably win a plurality of the votes, but not a majority.

Or, as described above, there could be some legal-ish, sort-of-Constitutional-but-not-based-on-any-American-traditions-or-history-ish arguments that some MAGA-ish judge could consider and create a situation where it’s not clear what to do, and therefore, the only remedy is a contingent election.

Keep in mind, this is not likely. It’s probably less likely than an electoral vote tie. But it’s something to think about, since the Republicans are on the record as having this be part of their goal in their attempt to overthrow the 2020 election.

The reason they are good with the contingent election scenario as a backstop is that the Republican candidate would most certainly win.

This is because the House of Representatives conducts the contingent election of the president. They vote on a state-by-state “en bloc” basis, meaning that each state gets one vote. The vote they issue would presumably be the result of each state’s House delegation’s preference. So if a state has more Republican House members than Democrats, the Republican presidential candidate will get that state’s vote, and vice versa.

If there is an equal number of each party’s House membership, then that state would not issue a vote as there would be no clear winner.

Currently, the makeup of the House state delegation is as follows: 26 Republicans, 22 Democrats, 2 Equal numbers.

This is why Republicans are totally fine with a contingent election scenario. Trump will obviously win, provided there are no rogue Republican state delegations that develop a conscience.

How can Democrats take back the contingency election advantage?

The wrinkle with this plan, though, is that Republicans aren’t guaranteed to maintain their advantage in the House. The House membership makeup will change to some degree after the election. Since the newly elected House would be the one that conducts the contingent election, its makeup at that time could vary quite a bit from its current one. If there is a Blue Wave, then it could change significantly towards the Democrats’ favor.

However, this doesn’t mean they automatically have an advantage in the contingency election scenario. Democrats had control of the House after the 2020 elections, but did not have the state delegation lead. That’s why Republicans were hoping to get to the contingent election in 2020, they knew they had a majority of the states’ delegations and would win.

So for Democrats to hold the majority of state delegations, a specific number of Dems have to win in specific states, in order to flip those states from having more Republican House members to having more Democratic House members.

They can also move the state from having an equal number of both party’s House members to having more Dems. Or, they can move a state from having more Republicans to having a tie, which would take away one majority state from Republicans.

I’ve looked over all of the state’s House member makeup and have determined that there are 15 key states that have a very realistic chance to flip from the majority of one party to the other, or from a majority to a tie, and vice versa.

These are: Alaska, Arizona, Colorado, Iowa, Maine, Michigan, Minnesota, Montana, Nevada, New Hampshire, North Carolina, Pennsylvania, Rhode Island, Virginia, and Wisconsin.

These states have House delegations that are narrow enough in party margins, and close enough in their election races, that a flip is conceivable.

Some of these states currently have a Democrat majority that is in jeopardy, so could conceivably flip to the Republicans’ column as a result of the election. For the purposes of this analysis, and for the sake of simplicity and brevity, I am going to assume they hold onto all of these seats, even if it doesn’t appear likely from the polling or the consensus of election experts. The reason for this is that I’m trying to focus on how the Democrats alone can possibly take the advantage, and it is almost impossible to explore every possible scenario.

I narrowed down my 15 key states to only the ones where the Republicans hold a majority and that can be moved towards the Dems’ favor, either through a flip or a tie; not vice versa. The result is a new list of 6 key states being: Arizona, Iowa, Minnesota, Montana, North Carolina, and Wisconsin.

I used the Cook Political Report (CPR) House Race Ratings to see which of the 6 key states have House races the Democrats are most likely to flip, and therefore are most likely to help give the Democrats the advantage in a contingent election scenario.

The below chart is the CPR's House ratings. They rate by the following categories: Toss-up, Lean, Likely, and Safe. I ignored the “Safe” category, as it is highly unlikely that any party would be able to flip those seats.

But the other categories have more unstable House races and more likely to flip. Therefore, the Dems best chances of getting back the contingent election advantage lies among these races.

There’s a lot of information smashed into this chart, so you may to click and zoom in to see a lot of it. But you can see that the incumbents’ party is color-coded red for Republican and blue for Democrat.

Since I focused only on Republican-held seats that need to be flipped, I scanned the Likely, Lean, and Toss-up Democrat columns first. If there are any Republican held seats in those categories, they are likely to be flipped.

As you can see, there are four R-held seats here, but none are in my list of the 6 key states. Therefore, there’s no House race to be won here that will help then get the advantage in a contingent election.

Next, I focused solely on the Republican Toss-up column. By definition, these are toss-up seats held by R’s, and therefore can be easily flipped to Dems.

There are two key states in this list: Arizona and Iowa.

Each of these states has two House races on the list. This is a good opportunity for Dems. If they flip these seats, Arizona would go from a 6-3 R majority to a 5-4 D majority, and Iowa would go from a 4-0 R majority to a 2-2 tie.

This would result in a new House delegation count of 24 R - 23 D - 3 Tied.

Dems are inching closer, so where can they go from here? Let’s look at the Lean Republican column next.

And in this category, we see that there are two states on my list of the 6 key states, Montana and Wisconsin.

Yes, there is a House race that is very close in the R-stronghold state of Montana. If Dems flip this, then the House membership goes from 2-0 R, to 1-1 tie.

The new House delegation count would then be 23 R - 23 D - 4 Tied. (Don’t even ask me what happens when it’s tied. I think they just vote and vote and vote until a majority is reached, but this is beyond my pay grade).

Let’s now move to Wisconsin, which has a House membership count of 6 Rs and 2 Ds. They only have one House race in the Lean Republican category, which would narrow their lead to 5-3, if flipped. This doesn’t quite get the job done for Dems.

Now it’s time to consider the Likely Republican column. There is an Arizona House race on here, but we’ve already gotten two races from AZ flipped in this analysis, and that’s all that was needed for a Dem majority, so we can ignore this one.

Fortunately, there is yet another one from Wisconsin on this list as well. If Dems can flip this seat, then they would achieve a tie of 4-4 in the Wisconsin House delegation. This would result in a final House delegation tally of 23 D - 22 R - 5 Tied.

The Democrats would have a contingent election advantage!

Monitoring the situation

The problem is that the Democrats’ situation in this scenario is very precarious. They have their own flippable House seats in 9 key states that need defended, significantly more than the Republicans. So a lot would need to go right for them to achieve a full defense against the contingency election scenario. If there is a true overwhelming Blue Wave, this is certainly possible.

To monitor this situation on election day, I will be focusing on just the House races I covered here first. If Democrats don’t win just one of these, they probably lose their chances of a House delegation majority.

These are: AZ-1, AZ-6, IA-1, IA-3, MT-01, WI-03, WI-01. It also might be worth keeping an eye on the third AZ race I mentioned in the Likely R category, AZ-02.

But if they do sweep these, then we can go through some other House races from my original 15 key states where Dems hold the majority of House seats or are tied. These would include: MI-03, MI-08, MI-10, MN-02, PA-01, PA-07, PA-08, PA-10, PA-17, CO-08, ME-02, NC-01, VA-02, VA-07, CO-3.

Happy Election Day!