Recently, I’ve encountered a new source of election anxiety from several distinct quarters. The fear is that one or more third party or independent candidates will “spoil” the 2024 Presidential election, but not in the usual way. Concern about spoilers ordinarily centers around their potential to draw votes from viable candidates and tip the balance in favor of one or the other major party. This fear is especially pronounced in Democratic circles, where Ralph Nader’s disastrous 2008 run remains a painful memory. Apprehension over such a scenario grows with every hint dropped by various independents and party apostates as they conspicuously toy with possible candidacies. However, we’re still almost a year from the 2024 presidential election. It is impossible to foresee which pretenders will actually declare their candidacies and which party (if either) could benefit from these, mitigating such concerns at this early stage.

Fortunately, there’s a new flavor of neurosis to take up the slack. It stems from an altogether different concern, one unique to Democrats this time. The fear is that the House of Representatives will end up deciding the outcome of the 2024 election.

To understand how this can happen, we must distinguish between a “plurality” and a “majority” of votes. A majority means that a candidate has received over half of the total votes, while a plurality means they simply received more votes than any other individual candidate. Put another way, a majority requires more votes than all other candidates combined and a plurality requires only the most votes of any single candidate. Obviously, a majority implies a plurality.

Consider an example in which 100 people vote for three candidates: A, B, and C. If the breakdown of votes is 20-39-41, then candidate C has a plurality but not a majority. On the other hand if the breakdown is 20-60-20, then candidate B has a majority (and a plurality).

Now, let us return to the 2024 presidential election. I must beg your indulgence here. I’ll be intentionally vague for the moment, because this vagueness pertains to the source of confusion. If you spot the flaw, please be patient. If not, don’t worry — I will explain it shortly.

The U.S. constitution requires a majority — not a plurality — for a candidate to win. What if no candidate receives a majority of votes? The 12th amendment (ratified in 1804) specifically addresses this eventuality. It instructs that the House of Representatives must then decide the winner from among (at most) the top three candidates. Unlike an ordinary vote of the House, each state (rather than each representative) gets a single vote.

Aside: Nowhere does the constitution (including the 12th amendment) address the question of how each state’s representatives collectively determine its single vote. Most likely, the authors of the amendment assumed this would be done via a vote of the relevant representatives (though it is easy to see that a tie could arise, and the same question of plurality vs majority would apply in this microcosm as well) or via some prescription in each state’s constitution. The exact mechanism is irrelevant to our argument, though (in principle) it could make a difference if such a vote actually took place.

In the event of such a House vote, the math is unnerving for Democrats. The House currently consists of 222 Republicans and 213 Democrats, but this is not what matters. A quick glance at its current makeup (https://www.house.gov/representatives) shows that there are 26 states with a majority of Republican representatives, 22 states with a majority of Democratic representatives, and 2 states that are evenly split. There also are 6 non-state regions which have representatives in Congress. Presumably these would not participate in the special House vote, but if they did it would not matter since each side boasts 3. Here is the exact breakdown:

• (Republican states): Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
• (Republican non-states): American Samoa, Guam, and Puerto Rico.
• (Democratic states): Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.
• (Democratic non-states): District of Columbia, Northern Mariana Islands, and Virgin Islands.
• (Evenly-split states): Minnesota and North Carolina.

Supposing that states with Republican or Democratic majorities in the House would vote along party lines, the Republicans would win the vote (even if the the split-states voted for the Democrats). I’ve heard numerous laments about the unfairness of this recently — almost as if it is a foregone conclusion — which leads me to suspect it is a talking point on some popular news outlets or websites. Be that as it may, there is a key flaw in this argument.

The fallacy is hinted at in my vagueness — intentionally mirroring the confusion in those who promulgate this complaint. I used the terms “majority” and “plurality” without specifying of what votes. We do not live in a direct democracy. We have an electoral college. The House decides the election only if no candidate obtains a majority of electoral votes, not a majority of popular votes. Consider the electoral gap between the winning and losing parties (i.e. the electoral votes of the winning party minus those of the losing party). Since 1900, in only 7 elections has this gap been less than 100 electoral votes — even when the popular vote was quite close. In only 2 was it under 50 electoral votes, and only one of those was in the last 100 years (this was the highly-controversial election of 2008, featuring G.W. Bush vs Gore). Even in the hotly-contested 2016 and 2020 elections, the gap was over 70. We therefore see that — even in cases where the popular vote is quite close — the electoral gap tends to be much larger. There are two reasons for this: (1) most states employ a winner-takes-all approach to electoral allocation and (2) the block of electoral votes varies in size per state. The number of electoral votes for a state is the number of senators (i.e. two) plus the number of representatives for that state. We’ll refer to these as “senatorial” and “house” electoral votes, though they are cast by the state’s designated electors rather than its senators and representatives.

Let’s assume that electors always vote for the candidate (or party) who picks them. There are some subtleties involving the ability of electors to exercise their own discretion, but de facto we have an established two-party system in which electors do not exhibit autonomy. Many states codify this explicitly.

Only two states (Nebraska and Maine) currently allocate electors proportionately to the votes received by various candidates. Technically, they allocate the two “senatorial” electoral votes to the winner of a plurality and the remaining “house” electoral votes proportionately. Nebraska currently has 3 such “house” votes and Maine has 2. All others states use a winner-takes-all system. If a candidate wins a plurality, it receives all the electoral votes for such a state. For example, suppose a state is allocated 12 electors (2 “senatorial” votes and 10 “house” votes) and that the candidates (A, B, and C) receive 20-20-60 percent of the popular vote in that state. In a proportional voting state, candidates A and B would receive 2 electoral votes each and candidate C would receive 8 (6 plus the 2 senatorial ones), while in a winner-takes-all state, A and B would receive no electoral votes and C would get all 12.

In winner-takes-all states, presumably the winner is determined by plurality (as we assumed in our discussion above), but this is determined by the state constitutions. I’ll confess that I have not examined all 48 relevant (i.e. non-proportional) state constitutions and have no intention to do so. If a state requires a majority, then presumably that state’s constitution also dictates the relevant procedure for allocating electoral votes in the event of a failure to achieve one. It is hard to imagine that a winner-takes-all state would suddenly switch to proportional voting in such a situation. There may be a run-off between the top two candidates or (most likely) a winner-takes-all allocation based on plurality rather than majority. In such cases, the spoiler candidate would be at a disadvantage. For example, suppose our candidates (A, B, and C) receive 39-20-41 percent of the vote in such a state. It is possible that the state would allocate all its electoral votes to C or hold a run-off between A and C. In neither case, would B receive any electoral votes. Only if B won a plurality outright would it have a shot at the electoral votes — and in a run-off it still could lose.

We now can see why it is highly unlikely that the House will determine the outcome of the 2024 presidential election. Consider three candidates (A, B, and C) again, and suppose the national popular vote is 40-20-40 — a historically unparalleled performance by spoiler candidate B. This breakdown can arise in many different ways. For example, B could receive all of the vote in some states and none in others. In this case, they could indeed hand the election to the House. However, this would be an astonishing situation. In principle, it could arise if a highly-popular candidate B would have won a plurality in most states but could only get on the ballot in a few. However, that is an extremely unlikely scenario.

Suppose instead that we go to the other extreme, and the breakdown in every state is 39-20-41 or 41-20-39. In this case, candidate B may receive one electoral vote from Nebraska (though probably not) and no electoral votes from any other state. Unless, by chance, the unspoiled electoral gap between the two major parties would have been extremely small, one or the other still would obtain a majority of electoral votes.

Similar considerations apply to the vast majority of scenarios that fall between these two extremes, especially those which have any real likelihood of arising. In almost any situation in which the spoiler is indeed a spoiler (i.e. not the majority winner in their own right), the probability that they would win enough electoral votes to prevent either major party from achieving a majority is tiny. Assuming a third-party (or independent) candidate can overcome the myriad administrative and financial obstacles to appearing on the ballot everywhere, they still would have to win a plurality in either several small states or at least one big state to have any chance of “spoiling” the election in the manner described.

There is one farfetched, but mildly plausible, scenario in which a House vote may arise: if the “spoiler” candidate wins a plurality of electoral votes but not a majority. That could only happen if they are extraordinarily popular in quite a few states. In this case, the House would decide the election and would possibly (even probably) pick the Republican candidate. However, this is not written in stone. The representatives from the many states in which the spoiler candidate won would have to think long and hard about it. The House as a whole would be thwarting the will of the people, and those representatives in particular would be thwarting the will of the people who elected them back home. It would come down to some thorny election district calculations (unless higher principles prevailed, which seems unlikely given the type of people we have in Congress). In any event, the victim of the House vote wouldn’t be the Democrats, but rather the spoiler — or, more precisely, the plurality of Americans who voted for that candidate.

In summary, there is a reason that since 1824 (when we didn’t even have a two-party system) the House never has decided an election. The winner-take-all system most states employ and the varying block allocations of electoral votes to those states make it exceedingly unlikely that outside candidates (3rd party or independent) could prevent either the Democrats or the Republicans from obtaining a majority of electoral votes.

The House will not decide the 2024 presidential election. That fear simply is unfounded.