The Coming Cat 5 Presidential Election

Barring an intervention of fate or an uncharacteristic spasm of political sanity, the 2024 presidential election will likely be a rematch of Trump v. Biden. Many of us greet this prospect with renewed dread, like having one’s house and family survive a Category 4 hurricane only to be told that there’s a Cat 5 coming right after it.

What might that electoral storm (survivable, though not without some damage) look like, and how can we best prepare for it?

No matter our political biases, we all have an overriding interest in the integrity of the 2024 election. Those who believe, however groundlessly, that Trump’s defeat was the product of widespread voting fraud have an interest in making sure it doesn’t happen again. Those who believe that 2020’s popular vote was, overwhelmingly, accurately counted have an equally strong interest in insuring that the bitter denialism that Trump has sown doesn’t legitimize electoral mischief next time around.

Cat 5-level anxiety about the integrity of the next election is entirely warranted for a number of reasons:

>Our system of political polling is radically decentralized, with more than 176,000 voting precincts across the country, making claims of local malfeasance easy and security more difficult.[1]

>A subset of ardent Trump supporters are so genuinely outraged that he lost last time, and so appalled at what they see as our country’s accelerating transformation into a woke socialist hellhole, that they believe almost any steps to change that course – or avenge that wrong, as they see it – would be justified.

>Most of our state legislatures and executive branches are dominated by Republicans, many of whom have either endorsed Trump’s fiction of a stolen election or have concluded that old fashioned democracy doesn’t bode well for them politically, as evidenced by the recent enactment of laws by multiple Republican-dominated statehouses that make voting more difficult and partisan interference in future elections more likely. [2]

>Due to population shifts among the states, and the resulting reallocation of electoral votes among them following the 2020 census, solidly Democratic states have lost a net of 2 electoral votes, and solidly Republican states have gained a net of 3 electoral votes, meaning that if the election were held today, the electoral vote count of states likely to allocate all their electoral votes to Biden would be 221, compared with 218 for Trump[3] (270 being required to win).

>Add to this mix the harrowing precedent of Trump’s various post-election tactics to alter the 2020 outcome, and you have the recipe for a serious electoral storm in 2024.

These days, there are only five genuine “swing” states, where neither party has a predictable popular vote advantage, and they represent 62 electoral votes in total, more than enough to close the hypothetical electoral vote gap for either candidate: Arizona (11), Nevada (6), Wisconsin (10), Pennsylvania (19), and Georgia (16).

Pennsylvania looms particularly large. Whoever wins Pennsylvania will need only two (or one, if it’s Georgia) of the other five swing states to win the presidency. Whoever loses Pennsylvania will need at least three of the other swing states to go his way to win.

That’s it. That’s the storm track of the 2024 electoral hurricane. For all the froth and acrimony of the next 14 months and thereafter, the election likely hinges on the popular vote in five states, and may well be decided in Pennsylvania.

How is it that we’re already locked into so narrow a range of possibilities? Because of the central problem with the Electoral College: the “winner-take-all” method of awarding electoral votes that almost all states have adopted, in which the presidential candidate who wins a bare plurality of the popular vote in a given state receives all of that state’s electoral votes, effectively nullifying the popular votes for other candidates. This makes it possible for our electoral process to “get it wrong,” and deny the presidency to the candidate who wins the national popular vote, as has happened five times in our history and twice in the last twenty years, most recently in 2016.[4]

But more importantly, the states’ winner-take-all method of awarding electoral votes incentivizes claims of fraud and other vote count disputes, because it causes huge blocks of voting power to turn on a small number of readily contestable votes. There’s no better example of this vulnerability than Trump’s relentless pressuring of Georgia’s Secretary of State to “find” 11,700 votes that he thought he needed to win that state in 2020.

It’s important to remind ourselves that nothing in the Constitution requires the winner-take-all approach that results in these quadrennial battles over razor-thin margins of votes in a handful of states. There are other ways to do it: in proportion with a given state’s popular vote for each candidate, or on a district-by-congressional district basis, as is the current practice in Maine and Nebraska (but, mystifyingly, nowhere else). Any state legislature could adopt these more democratic approaches at any time. But they won’t, because they believe this would lessen their state’s political clout.

There’s another big downside in the Constitution’s delegation of authority to the states to select presidential electors. From the founding of the republic through the early 1800s, it was not uncommon for a state’s presidential electors to be chosen by the state legislature, without any popular vote at all.[5] This is entirely consistent with the Constitution’s mandate that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

As November 2024 approaches, nothing but fear of public outrage would prevent a state legislature from convening and voting to revert – just for this next election, folks, don’t worry! – to direct appointment of electors by the state legislature rather than by popular vote.

But wait, didn’t we recently fix some of this nonsense?

It’s true that two important storm shutters were recently installed on our hurricane-prone electoral bungalow. The first was the passage of the bipartisan Electoral Count Reform Act, signed into law earlier this year, which cleaned up some of the dangerous ambiguities of the Electoral Count Act of 1887. It clarified, among other things, that the Vice President doesn’t get to do anything but count the electoral votes (rather than accept or reject them as he or she sees fit, as Trump and his benighted counselors urged upon Pence in January 2021), and that, lest anybody get any funny ideas, state legislatures can’t retroactively change a duly-elected slate of electors that they may not like.

Then, in the case of Moore v. Harper, decided in June, the Supreme Court poured cold water on the so-called “independent state legislature” (ISL) theory, which argues that the Constitution’s delegation of authority to the states to regulate congressional and presidential elections means that state legislatures have preemptive authority in such matters, independent of state courts or state executives.

In Moore, this was argued to mean that the legislature of North Carolina could ignore the state supreme court’s finding that it had illegally gerrymandered the state’s congressional districts to achieve partisan and racially biased results. The Supreme Court ruled that the Constitution’s use of the word “legislature”[6] in the so-called Elections Clause means the government of a state as a whole, and not just the body that enacts laws, and that therefore North Carolina’s supreme court had an enforceable say in the matter.

This ruling was greeted with a sigh of relief among those who justifiably feared that the current Supreme Court, stocked with three Trump appointees and heavily weighted with “originalist” jurists, might endorse ISL and unleash state legislators’ worst partisan instincts in 2024.

But this doesn’t necessarily mean that ISL is dead, or that a rogue legislature might not try to revive it in a different context. Moore was about the gerrymandering of congressional districts within the state of North Carolina, and the state’s constitution includes provisions – such as its equal protection clause – that bear on the issue of the drawing of congressional maps.

The question of appointing presidential electors presents a slightly different issue, because not only does the Constitution say that each state “shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…,” but most if not all state constitutions are silent on the subject of presidential elections, and the “manner” of appointing presidential electors has been established entirely – and only – by state statute.

In this context, unlike that of gerrymandering the popular vote in violation of state constitutions, a state legislature that decided to revise its presidential election statutes to give itself the power to appoint electors directly would “only” be taking away what it gave by statute in the first place. The state constitution wouldn’t be implicated, and the early precedent of direct legislative appointment of electors might well prevail with Supreme Court originalists if they were asked to rule on the question of whether the US Constitution prevented its revival.[7]

Again, none of this would matter if the Constitution mandated that state electors be allocated by congressional districts, or in proportion with the popular vote within each state, or even by national popular vote. But it does none of those things. On its face, it allows a legislative free-for-all that has only coalesced around the winner-take-all method out of  partisan interest in maximizing the political clout of each state.[8]

In the howling winds of 2024, deliberately mis-counting votes won’t be the only way to steal the election. State legislators have opportunistically changed methods of appointing electors far more often than the current winner-take-all consensus suggests. The only difference in the modern era is that their actions would be far more visible and they’re more likely to be held accountable. But that in turn depends on our vigilance as citizens, and on how much we care about having our votes counted, and counted accurately, particularly in the swing states where whether and how they’re counted will make all the difference.

What can we voting citizens do?

Learn, by name and office, who runs elections in your state. Demand that local media begin to monitor those officials’ plans for running the next presidential election, and how they intend to keep voting easy, private, protected, and accurate. And most of all, demand that the leaders of your state legislature pledge that there will be no changing of the statutorily prescribed method for appointing presidential electors – unless of course they want to make it more, and not less, democratic by dumping winner-take-all and adopting proportional or district-level award of presidential electors, which is entirely within their power to accomplish.

And if you’re thinking of subjects for future citizen-initiated amendments to your state constitution, reforming the mechanism for selecting presidential electors should be at or near the top of your list. For once those reforms are accomplished, the next electoral hurricane will be of the voters’ own making, and not one whipped up by entrenched political interests.


[1] S. Kellog, “Election 2024: Balancing Integrity and Access” (Washington Lawyer, Sept.-Oct. 2023).

[2] At least seven states have enacted laws that make voting more difficult, and at least seven states have enacted election interference laws that either make partisan interference in elections, or subvert the independence of people and processes that make elections work. Source: Brennan Center for Justice, “Voting Law Roundup: October 2022.”

[3] See

[4] In 2000, Bush’s victory famously came down to 537 popular votes in Florida. In 2016, Hillary Clinton lost all of the electoral votes of Pennsylvania, Michigan, and Wisconsin, and consequently the election, by a grand total of around 77,000 popular votes across those states. In 2020, though Biden led Trump in the national popular vote by close to seven million votes, he won the critical states of Arizona, Georgia, and Wisconsin by a combined margin of only 45,000 votes, and if he’d lost them, the result would have been a 269-269 tie in the electoral vote count (with consequences too awful to contemplate, but nonetheless previously contemplated here).

[5] See A. Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020).

[6] Article 1, Section 4 of the US Constitution reads in part “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”

[7] Arguably, none of the Equal Protection Clause of the Constitution, nor its analogue in state constitutions, nor the federal Voting Rights Act would apply since, unlike gerrymandering, a state legislature’s usurpation of the power to appoint presidential electors would disenfranchise all voters equally and wouldn’t discriminate against any particular group or region. And as a matter of verbal interpretation, it’s hard to imagine that the founders meant that the entire government of a given state would “appoint” electors as it shall “direct” (whereas it’s a bit easier to believe that they assumed that more than one branch of government might be involved in “prescribing” the manner of holding the elections of senators and representatives).

[8]See A. Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020).

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