Joshua Paschal

Can President Trump still win? Of course it remains possible, but it is highly unlikely. Trump would have to 1) win multiple legal suits, 2) win legal suits that would actually change the results of individual states, and 3) flip enough states to reach at least 269 votes or prevent Biden from having 270 votes (if no candidate reaches 270, the House decides with one-state-one-vote rules, giving the election to the GOP-backed candidate).

But this post isn’t about this election. I want to talk about other elections: the electoral history of the U.S. Presidency. This current situation has 4 obvious parallels: 1876, 2000, 1824, and 1960. I will address these in that order.

In 1876, the states of South Carolina, Florida, and Louisiana sent two delegations of electors to the capital. It was, thus, unclear who had actually won those states. The election between Rutherford B. Hayes and Samuel J. Tilden came down to which electors would be accepted, but each party declared their electors were the legitimate ones at first. While Tilden had won the popular vote, Southern Democrats compromised with the Republicans to allow a Hayes presidency in exchange for ending Reconstruction, industrialization efforts in the South, and to allow the South to institute Jim Crow laws.

This election will not shape out this way. The core of the problem in 1876 was that multiple groups of electors had been decided. Nowadays, with state electoral certification by law and information technology in place, there is little ground for a substantial disagreement as to which electors in fact were sent by the state governments.

In 2000, George W. Bush successfully sued to stop a recount in Florida that his opponent, Al Gore, had called for. Al Gore had in fact conceded the election before, but had retracted his concession to challenge the count in Florida. The Supreme Court ruled in favor of Bush and the recount in Florida was stopped. Even if Gore did actually win the popular vote in Florida, the Florida state legislature was already going to allocate electors in favor of Bush based on the original certification, so Bush v. Gore, while infamous, likely made little difference for how it would have played it.

Trump suing to flip the states away from their initial count, thus, is unlikely to work. While it is possible, state governments are already in the process of certifying their election results and allocating their electors. SCOTUS would have to issue a ruling much stronger than Bush v. Gore was, and the ruling would have to extend over multiple states.

In 1824, a four-way election was thrown in the House of Representatives since no candidate had reached an electoral majority. While Andrew Jackson had a plurality of the popular vote and electoral vote, the House elected John Quincy Adams, effectively slipping the Democratic-Republicans.

This is probably the most likely way that Trump ends up winning. If recourse of law or Congressional maneuvering results in no one reaching 270 electoral votes, the House will vote and decide via one-state-one-vote rules. This, however, would require dozens of electoral votes to simply not be cast or cast to other candidates like Jo Jorgenssen: something that is exceptionally unlikely even if we factor in the possibility of faithless electors.

The current situation is, thus, most like the aftermath of the election of 1960. John F. Kennedy had narrowly defeated Richard Nixon. Some Republicans cried foul: they claimed that Kennedy had benefited from voter fraud, particularly in Texas and Illinois. The Chicago mobsters (sometimes this is still argued, per The Irishman) helped deliver the election to Kennedy: after all, Illinois was +0.19% in JFK’s favor.

Putting the Catholic parallel aside (Biden would be the second Catholic president), the moral of the story here is clear. Crying fraud did not work in 1960. Indeed, while JFK’s time in office was short, he continues to be one of the most historically popular presidents regardless of such accusations. (It should be noted that Nixon took a whole day to officially concede the close election, but he did concede nonetheless)

Closeness alone is not enough to contest an election (see: 1880 and 1884; +0.11% nationally and 0.57% nationally, respectively). Donald Trump fancies himself as an Abraham Lincoln facing off against some cabal attempting to deny him the results he deserves. But such an approach has never worked. On the contrary, history tells us fairly clearly that the only path ahead of him would be to somehow prevent a majority of electoral votes from being cast for Biden. Even I am unsure how he and his allies would pull that off at this point beyond simple and plain use of force.