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Why the House won’t Decide 2024

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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.

Musing, Political, Short, Writing

Two Countries

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There once were two countries, A and B, and two kinds of people, purple people and green people. Each country had both purple people and green people.

In country A, the purple people were in charge. A small group of purple people were the gatekeepers of all things, the decision makers, the managers of life.

In country B, the green people were in charge. A small group of green people were the gatekeepers of all things, the decision makers, the managers of life.

The two countries shared a large border and a free one. By ancient treaty, no visas were required and no checkpoints marred the landscape. But almost nobody ever crossed the border. A nearly insurmountable range of peaks obstructed much of the length, and strong rapids made the remainder treacherous.

Though fundamentally different in nature and culture, the majority of the purple and green people did not mind one another. Many even cherished the differences, and friendly relations were by far the norm in both countries.

The two governments were exceptions.

The purple leaders of country A portrayed green people as primitive, dangerous, and unable to restrain their impulses, creatures to be feared and controlled. The green people sought to dominate and oppress them, they warned. Only through constant vigilance and zeal could such a dire threat be averted. Whether they believed these words or simply found them politically expedient is unclear.

The green leaders of country B portrayed purple people as arrogant, irrational, and immoral, individuals of loose character and dishonest nature. Such people sought to lead good folk astray and never should be allowed influence, never should be listened to, they warned. Only through constant vigilance and zeal could such a dire threat be averted. Whether they believed these words or simply found them politically expedient is unclear.

Most green and purple people in both countries meant well, or at least did not intend ill. But a few did as a few will do, and this was exacerbated by the rhetoric of each government.

Every time a purple person in country B was attacked, the leaders of country A pointed and exclaimed “See, we are right. We must protect purple people from the inexcusable barbarity of the green people.” But they held no power in country B and compensated with an excess of zeal in their own country. Small crimes were made big, a growing range of behavior was criminalized, penalties grew, initiatives to advance purple people in the face of obvious oppression were advanced, and the public was freshly informed of the omnipresent danger posed by green people.

Every time a green person in country B was persecuted, the leaders of country B pointed and exclaimed “See, we are right. We must protect green people from the hysterical lunacy of the purple people.” But they held no power in country A and compensated with an excess of zeal in their own country. Small crimes were made big, a growing range of behavior was criminalized, penalties grew, initiatives to suppress the influence of purple people in the face of their obvious irresponsibility were advanced, and the public was freshly informed of the omnipresent evil posed by purple people.

The green people in country A cringed whenever something happened in country B. The inevitable furor surely would land on their heads. An inquisition would follow, jobs would be lost, lives would be ruined, and the slightest misstep would destroy them.

The purple people in country B cringed whenever something happened in country A. The inevitable furor surely would land on their heads. Vilification would follow, new restrictions would be imposed, rights would be lost, lives would be ruined, and the hope of improvement would grow ever more distant.

The majority of purple people in country A were not particularly swayed by their government’s propaganda, but they did not repudiate it. Most did not understand the plight of their green fellow citizens. They dismissed green complaints as hyperbolic, arguing that their government meant well and any real impact on green people was minimal. Those who believed the truth dared not speak up, and the purple leaders grew ever more powerful. Soon the green people sat hands in laps, eyes down, afraid that the slightest gesture or word could be seen as a threat by those purples who made a business of seeing threats everywhere. A few green sycophants found some small degree of success, but even they were not safe.

The majority of green people in country B were not particularly swayed by their government’s propaganda, but they did not repudiate it. Most did not understand the plight of their purple fellow citizens. They dismissed purple complaints as hysterical, arguing that their government meant well and any real impact on purple people was minimal. Those who believed the truth dared not speak up, and the green leaders grew ever more powerful. Soon the purple people sat hands in laps, eyes down, afraid that the slightest gesture or word could be seen as a sin by those greens who made a business of seeing sins everywhere. A few purple collaborators found some small degree of success, but even they were not safe.

Through the vagaries of geopolitics, some families happened to span both countries. On the rare occasions when they spoke, neither side believed the other.

The purple people in country A did not believe the tales told by their relatives in country B. These were exaggerations spread by politicians, they declared. After all, they experienced no such thing. If anything, their lives were easier than before. A few, seeing the oppression of green people in their own country (but unwilling to speak up about it) even rebuked their relatives. If anything, green people were the oppressed not the oppressors. It was one thing not to help them, but quite another to blame them.

The green people in country B did not believe the tales told by their relatives in country A. These were exaggerations spread by politicians, they declared. After all, they experienced no such thing. If anything, their lives were easier than before. A few, seeing the oppression of purple people in their own country (but unwilling to speak up about it) even rebuked their relatives. If anything, purple people were the oppressed not the oppressors. It was one thing not to help them, but quite another to blame them.

In this way, country A raced toward a dystopia for its green citizens and country B raced toward a dystopia for its purple citizens, yet nobody else recognized this.

Each government was the other’s best friend, and both were the people’s worst enemy.

This is how half the population did not realize the sky was falling, while the other half saw it happening with their own eyes.

But I apologize. I misspoke. The border has no mountains or rapids. It is not physical or legal, but one of social milieu, profession, and education. Yet it is no less real for this lack of topography. Despite the apparent freedom to do so, most people lack the wherewithal to cross the border.

The two countries are our country, today.

This is where we are, this is where we are going, and this is why you will not be believed if you say so.