Democrats Should Focus on Taking Back the Contingent Election Advantage in 2028

This would force Trump and Republicans to go to the most extreme measures to maintain power

U.S House of Representatives Chamber

One of the casualties for the Democrats of the 2024 election, in addition to the presidency and the Senate, was the potential to take the lead in the makeup of House state delegations.

This is just an academic parliamentary curiosity in normal times. But it’s of the utmost importance during current times, now that election denialism has become a prominent niche in political thinking.

The makeup of the House state delegations doesn’t come into play much, but the most important place that it does come into play is in the event of a “contingent election”.

A “contingent election” is what happens when the actual presidential election does not produce a majority of electoral votes for one candidate or the other, such as if there’s a tie. Another situation where it might come up is in the case that there might be disagreement about appointed electors, missed constitutional deadlines for the certification of election, or other confusing or murky situations where the process for the certification of the presidential election results can’t or won’t happen.

The latter was the goal of the Trump team’s efforts to overturn the 2020 election. They wanted to create so much chaos and confusion that the primary process had to be scrapped in favor of the legitimately constitutional “contingent election” scenario, as laid out in the 12th Amendment.

Trump’s fraudulent elector scheme and eventual insurrection scheme were both designed to delay and create uncertainty around the usual process of counting and certifying the electoral votes, in the hopes of forcing the results to be determined by a contingent election.

In a contingent election, the House votes on the president, but they do it through one delegation for each state, where each state’s delegation gets one vote. So the party that has the majority of a state’s House seats would presumably vote for their party’s presidential nominee.

Why Trump was fine with a contingent election

The reason Trump and Republicans were content with the 2020 election going to a contingent election scenario is that Republicans held an advantage in the House delegations. They had the majority of House seats in more than half the states in 2020, so Trump was very likely to win the contingent election.

On Election Day, I published an article entitled “Can Democrats Take the Advantage in a Contingent Election Scenario?”, where I examined the possibility of Democrats taking back this advantage in 2024. Leading up to the election, Republicans had the majority of House seats in 26 states, versus 22 for Democrats. Two states had an even number for each party. (The states with the same number for each party would presumably not end up resolving their vote, and therefore would essentially not be counted).

It was an uphill battle, but there were possible election outcomes where Democrats could have prevailed here, although the paths were very narrow. Of course, this was written at a time where I had misguided confidence in the Democrats’ overall chances for success.

But I saw this as a very important bulwark against Trump’s and MAGA’s plans to contest the election had they lost. Knowing that they were almost certain to win a contingent election, they would be willing to do anything and everything that would get to that outcome. This would include lawsuits, certification delays, intimidation of public officials, etc. Anything to cook up distrust in the election process due to myriad imagined grievances. They knew that by sowing chaos and distrust, they could enhance the prospects of putting the outcome into the hands of a contingent election.

Not having the contingent election advantage would force Trump and Republicans to have little choice but to resort to an outright violent coup in order to attain victory and power. That would be a much harder way to reach their goal and would be devoid of the air of legitimacy that a contingent election would have.

Republicans strengthened their contingent election advantage in 2024

All of this turned out to be moot, however, as Republicans actually strengthened their advantage in the House delegation count, despite losing a bit of their overall House advantage. They went from having a majority of House seats in 26 states to 30 states. Democrats went from 22 to 18. There are still two states with an even number of representatives from each party. Now the count is R-30, D-18, E-2.

The reason the Republicans were able to lose strength in their overall House majority but gain strength in the House delegation majority is because Republicans flipped seats in the right states in order to gain more state delegation majorities, whereas Democrats flipped seats in states that were largely irrelevant for House delegation purposes.

For example, Democrats maintained strength in their overall House membership by flipping seats in states whose delegations had safe Democratic majorities already—New York, California, and Oregon—and in states whose delegations were safely in Republican hands—Alabama and Loiusiana. These races are great successes for Democrats overall in their ability to wield power—or rather, quash Republicans’ power—in the House for at least the next two years. But they did not move the needle on the House delegation situation. All of these states are safely in the hands of one or the other party.

On the other hand, Republicans flipped seats in states that were closely divided in their House delegations and therefore were teetering on the edge of majority advantage for one party. Three states went from Democratic majority to Republican majority (Alaska, Michigan, Pennsylvania) or to equal numbers (Colorado), and one state went from equal numbers to Republican majority (North Carolina). This is how Republicans picked up four more states in their delegations and strengthened their contingent election advantage.

The 2026 and 2028 elections should have urgency around them for Democrats for many obvious reasons, but one of the reasons should be attaining the majority of state delegations and therefore the advantage in the contingent election scenario. They could be in a good position to do so, as it’s likely that Trump and Republicans will overplay their hands and do things with their power that many Americans find appalling. Plus, they probably won’t be able to solve all the problems that Americans voted for Trump to solve.

A midterm swing in favor of Democrats is likely in 2026, and there will be potential to continue that swing in 2028 with two more years of Trump’s fascistic tendencies to offend the electorate.

How Democrats could regain the advantage

First, the House seats I mentioned above that Republicans flipped in Michigan, Pennsylvania, Colorado, and North Carolina can all potentially be reversed, and go right back to Democrats in a Blue Wave election or two. This would reduce the Republicans’ advantage from 30 to 27 states, with one state going back to even.

In my aforementioned Election Day article, I specifically mentioned a few House races in specific states that would be key to achieving the contingent election advantage. A lot can change between now and the 2026 midterms and 2028 general election, but it’s likely that these races will still remain close, winnable by either party.

This includes races in the states of Arizona, Iowa, Montana, and Wisconsin. Each of these states has enough very close House races that can either give the Democrats the outright majority or take away the majority from Republicans with a tied result.

Looking across the nationwide political landscape, it’s hard to see many more states where the Democrats have a good chance at picking up a House delegation majority or tie. But there are a couple that stand out: Minnesota and Kansas.

Right now, Minnesota is locked in a 4-4 House delegation tie. Their districts seem pretty solid in one or the other party’s hands. But some money and effort into one or two Republican-held seats could be worth it to tip this mostly blue state into a Democratic majority.

Kansas currently has a 3-1 Republican advantage. Two of those seats are more rural and will probably remain solidly in Republican hands. But KS-2 is a district in the outskirts of the Kansas City metropolitan area and could potentially be moved into the Democrats’ direction over the next two election cycles. If Democrats invest heavily in this district, it is winnable. This would take this state out of a Republican majority and make it a tie

Strategic preparation should start now

With some focus and preparation starting now, Democrats can gain the House delegation majority and attain a contingent election advantage in 2028, which will make a Trump-led attempt to steal the election that much harder.

Without having the safety net of a guaranteed win in a contingent election scenario, Trump and Republicans would have to resort to other, less legitimate means to maintain power, which could include a violent coup.

I certainly hope it doesn’t come to this. But I would rather force their hand and make them have to choose that route than make it easy on them by letting the House hand the election over to Trump via a Constitutionally mandated process. This would be a way for a stolen election to appear legitimate on the surface and should be avoided at all costs.

If they’re going to steal the election in 2028, Democrats should make then actually steal it.

If they are forced to perform extreme, illegitimate acts to stay in power, then at least we can force America to decide once and for all how we want to proceed as a country. Would we choose outright dictatorial fascism or a functioning democracy?

It remains to be seen. But it would be preferable to put these options on the table as soon as possible, instead of extending the time and therefore dulling the impact of an insidious takeover, resulting in a slow-burn revolution that goes largely unnoticed.