Trump could win even if he loses the popular vote, Electoral College and 'all his legal cases': analysis

Former President Donald Trump could "lose the popular vote, lose the electoral college, lose all his legal cases and still end up president of the United States in an entirely legal manner" in 2024, The Guardian’s Stephen Marche warns in a Monday opinion column. "It's called a contingent election."

Marche explains, "A contingent election is the process put in place to deal with the eventuality in which no presidential candidate reaches the threshold of 270 votes in the Electoral College. In the early days of the American republic, when the duopoly of the two-party system was neither desired nor expected, this process was essential.

Marche notes, "There have been two contingent elections in US history. The first was in 1825. The year before, Andrew Jackson, the man from the $20 bill, had won the plurality of votes and the plurality of Electoral College votes as well, but after extensive, elaborate negotiations, John Quincy Adams took the presidency mostly by offering Henry Clay, who had come third in the election, secretary of state. Jackson, though shocked, conceded gracefully. He knew his time would come. His supporters used the taint of Adams' 'corrupt bargain' with Clay to ensure Jackson's victory in 1828." According to Marche, a similar scenario could play out next year.

"The possibility of the Electoral College releasing a confusing result, or being unable to certify a satisfying result by two months after the election, is quite real," Marche writes. "The Electoral College, even at its best, is an arcane system, unworthy of a 21st-century country. Maine and Nebraska don't necessarily have every elector go to the party that won the state as a whole. There have been, up to 2020, 165 faithless electors in American history – electors who didn't vote for the candidate they had pledged to vote for."

Marche recalls, "In 1836, Virginia faithless electors forced a contingent election for vice president. If the 270 marker has not been reached by 6th January, the contingent election takes place automatically. And the contingent election isn’t decided by the popular votes or the number of Electoral College votes. Each state delegation in the House of Representatives is given a single vote for president. Each state delegation in the Senate is given a single vote for vice president."

Marche adds, "All that would be required, from a technical, legal standpoint, is for enough Electoral College votes to be uncounted or uncertified for the contingent election to take place, virtually guaranteeing a Republican victory and hence a Trump presidency. It would be entirely legal and constitutional. It just wouldn't be recognizably democratic to anyone. Remember that autocracies have elections. It doesn't matter who votes. It matters who counts."

If this were to occur, Marche concludes, "The real danger of 2024 isn't even the possibility of a Trump presidency. It's that the electoral system, in its arcane decrepitude, will produce an outcome that won't be credible to anybody. The danger of 2024 is that it will be the last election."