Reinhold Ernst is a veteran and advocate of democracy related reforms as a member of Veterans for Political Innovation.
There’s a modest but distinct possibility that a Trump-Biden rematch in 2024 will end with a nearly even split electoral college vote and neither of the two exceeding 270 electoral votes. This scenario may sound implausible, but is a low-probability yet high-consequence possibility for three reasons. First, state-by-state polling shows just how close the 2024 race may be in terms of electoral votes. Second, Alaska's three electoral votes may be for neither Biden nor Trump due to their use of ranked choice voting (RCV). Third, multiple electoral college scenarios could trigger the 12th Amendment.
Electoral College Scenarios
If a Trump-Biden rematch election were held today, 14 months early, what would the electoral map look like? Sure, there are always swing states and the list won’t surprise you, so let’s focus on the usual suspects and see how the map could look reflecting state-by-state polling from over the past 90 days.
Florida, decisively in favor of Trump, is not much of a swing state anymore.
Wisconsin, some polls are upwards of nine percent in favor of Biden which seems excessive, but polls are consistently leaning-Biden otherwise by a few points.
Georgia, the surprise of 2020. The polls are nearly evenly split, but the ones that find Trump winning are by a bigger margin. Let’s assume Georgia goes back to Trump in 2024.
Ohio, consistently in favor of Trump, is not much of a swing state anymore.
North Carolina, Democrats are hoping for an upset here but polls are consistently putting Trump with a multi-point lead more often than not.
Nevada, similar to North Carolina, but the other way. Most polls show Biden with a few points over Trump.
Pennsylvania, Michigan, and Arizona are a coin-flip right now, too close to comfortably call. If we make the assumptions that Pennsylvania goes for Trump while Michigan and Arizona go for Biden then we end Election Day without a victor. Neither will have the 270 electoral votes to win. But the electoral map is so evenly split that there are a few ways this math could add up among the swing states. Democrats could win the upset they seek in North Carolina or Georgia, and lose Michigan by a hair, for example. Same outcome - no victor. Or, Trump can surprise pollsters just as he did with a few states in 2016, winning Wisconsin and Nevada while Biden takes Georgia or North Carolina. Same outcome - no victor.
Alaska’s Still To Be Decided Electoral Votes Will Be Key
And the world will have to wait, for a few reasons. The biggest of which is the state law requiring a 15-day wait to process votes in order to accommodate the extensive use of mail-in voting from distant villages and tens of thousands of military members serving out-of-state. Additionally, at least one borough recently abandoned the use of machines in favor of hand-counting ballots only, which takes time. RCV tabulation otherwise takes only a matter of minutes or hours, so that is a minimal issue.
Will Alaska go for Trump, Biden, or other? Alaska has been dominated by the GOP for the past 50 years, but Alaska will be different in 2024.
The second reason an inconclusive Presidential election is plausible is because Alaska’s use of open primaries and ranked choice voting breaks the false-choice of two. And in this case, Alaska could culminate in the debut of this system with neither Trump nor Biden. In 2024, all Alaskans will see far more than two names on the ballot in the general election for president. Whose names will appear on the list is very speculative at this point in the dynamic primary cycle, but we do know there will be a long list and voters will rank up to four. Is it possible for a third party to win Alaska? Absolutely. But is it likely that a third party could win Alaska's three electoral votes?? It's debatable, and depends on a few variables. Will No Labels actually run a compelling Unity ticket? Is there a "Never Trump'er" Republican refusing to drop out, thus splitting the vote in any state? What of the Libertarians? Who actually campaigned in Alaska?
Alaska is a seriously important and woefully overlooked battleground state in 2024.
If you're skeptical that Alaska is anything but a Republican strong-hold with Trump as the eventual winner, consider the following:
(1) Alaska is arguably the most independently minded state with 57% Independents (only 24% Republicans), the highest percentage of all 50 states.
(2) Historically Alaska may lean to the right, but still is soundly centrist as demonstrated with the election of moderate Democrat Mary Peltola to Alaska’s lone seat in the House of Representatives over two Republicans who were proudly not-centrist and strongly aligned with Trump. Similarly, moderate Republican Senator Lisa Murkowski won over a Trump-endorsed candidate. RCV seems to be driving outcomes towards the center.
(3) Trump won Alaska with only 52.8% of the vote in 2020. That is hardly a landslide. In 2024, if only 2.9% of those same voters overcome their spoiler effect via RCV and put Trump lower on their list, then RCV will commence presumably multiple rounds of tabulation. Who the stronger third-party candidates are will be all the difference.
(4) Senator Lisa Murkowski openly stated the possibility of her endorsing a third party candidate in event of a Trump-Biden rematch. Her words and efforts will carry a lot of weight in her home state, and a few percentage points makes a big difference in RCV tabulation outcomes.
Determining the Next President of the United States
Imagine it’s January 2025, two months after Election Day and the nation still does not know who won the presidential race. Polls have long shown the Trump-Biden rematch was going to be close, but few people expected this much of a curveball. It is declared that there’s no outright winner, and the next president is to be determined in the House of Representatives for the second time ever, exactly 200 years after this procedure was exercised during the 1824 race. Two ways could cause this to happen. First, Alaska's three electoral votes go to neither Trump or Biden but instead _____, meaning no candidate reached the minimum 270 votes. Or second, Trump wins Alaska as many expect, but if even only one of the 270 electors are 'faithless electors', neither will reach 270. The same applies if Biden wins Alaska by surprise. For comparison, in 2016 there were six faithless electors, and today 15 states have no laws for preventing or reconciling faithless electors to include Pennsylvania and Georgia, two of the most consequential battleground states. The impact of even a few faithless electors in the electoral college will be magnified and trigger the 12th amendment, regardless of Alaska and ranked-choice voting.
Off to the House of Representatives we go. This is the part when things get....tense.
Here's a quick rundown of how the House of Representatives will make their decision. First, the House will need to establish House Rules for this procedure, which do not yet exist. That'll be easy, right? Ha... We do know that each state will submit only ONE representative from their delegation to cast only ONE vote per state. How do we identify the lucky winner per state? That'll be determined in the House Rules, still TBD. One thought is "okay, it'll be up to each state's delegation to determine a single person or a consensus vote amongst themselves, right?" If that's the case, then we now have the opportunity for state delegations to vote different from their electoral college outcome.
The 12th Amendment requires that the House considers only the top-three vote-getters when no one commands an overall majority.…Trump, Biden, and the only other person to get electoral college votes thanks to Alaska, the “third contender”. At this point, put the Electoral College off to the side since it failed to reach a decision. What matters more now is the break-down of state delegations to the House of Representatives. Republicans have 25 - half is not a majority, Democrats have 23, and NC and MN are perfectly split. If either NC or MN state chose a Republican as their lucky singular vote, then Trump would probably eke out the majority he needs. If not, then we probably would see re-vote after re-vote just like in 1824...35 vote calls, in all. If this procedure takes too long (two weeks), then it'll be up to the 119th Congress, which could go decisively either way. Given the nearly even and strongly polarized split in the House of Representatives, one likely outcome is that neither Trump nor Biden will be the next president. Instead, the third contender who won Alaska’s three electoral votes - _____, might be the only candidate capable of earning the 50% vote required. Who blinks first? 1824 saw precisely this sort of compromise.
We're really getting speculative now, but the overall point is that exercising the 12th amendment will be a traumatic experience for our Constitution, nation, and potentially RCV efforts if advocates are unprepared. Even if there is no tie and either Trump or Biden do win outright, Alaska’s possible curveball will make RCV and open primaries a household conversation overnight - for better or worse depending on how prepared advocates are. And if it’s up to the House of Representatives to decide the next president, emotions will be high on all sides. The ensuing upheaval from such a scenario will be tremendous, and however 2024 ends is unknown but there is increasing doubt that it will be a smooth operation with the Electoral College so close. The various contingencies outlined above compel us to ask several important questions today to lessen the risk of an Alaskan surprise undermining otherwise healthy democracy reform efforts like RCV, open primaries, mail-in processes, et cetera. Here are a few questions to chew on, for starters.
Which candidates other than Trump or Biden are competing well-enough in Alaska today?
Which candidates could compete well-enough in Alaska, if only they strategized accordingly?
Even if Alaska does not decide the outcome, what way do polls and models say Alaska will go? No one is really looking.
How prevalent is (was) 'spoiler effect' and how significantly will Alaskans change their voting behaviors from 2020?
How would such a scenario help or hurt the national conversation about RCV and open primaries?
Is it more important to win the battle of Alaska, or the broader national effort?
What should advocates of RCV & open primaries do with this information today to lessen risks of a serious setback to their efforts?
As a proponent of RCV, my fear is that unprepared RCV advocates could fail to quickly capture the narrative during the above scenarios - or even before they occur. Opponents and enough voters who are unfamiliar with RCV will quickly reach the wrong conclusions, causing a nation-wide setback for efforts to scale RCV more broadly. The imperative today is for RCV advocates to wrestle with these tough questions, and synchronize their efforts to ensure the impending national inflection point does not become the moment we all wished went differently after it is too late.