One Strange Scenario to Avoid Would Put Trump Back in Office | Opinion

The path to Donald Trump's election as president in 2024 is not via a one-on-one race against President Biden. Rather, a third-party challenge from the group No Labels, as well as a Green Party challenge from Cornel West, could strip moderates and extreme progressive votes from Biden. West could also have a serious impact by draining critical black votes from Biden.

Every week that goes by, it is increasingly clear we are headed toward President Biden and former President Trump being their respective parties' nominees, (though we must always recognize the unexpected can and does happen). Given increasingly clear poll numbers that show the country is completely dissatisfied with having a Biden versus Trump rematch, it does not seem realistic that a major third-party challenge will not develop. And whatever baggage the candidates have now, it will only grow between now and next spring when No Labels will hold its convention.

The threat to the country is existential. Undoubtedly, a third-party challenge will drain sufficient votes from President Biden to ensure a Trump win in key swing states with only a plurality of votes. An NBC News poll from this week indicated that 14 percent of those surveyed preferred a third party candidate to Biden or Trump. The result? Trump beats Biden, 39 percent to 36 percent.

There is another increasingly realistic scenario to consider: Sentiment becomes so negative toward both Biden and Trump that a strong unity ticket, with a Democrat and Republican who are both prominent and moderate, will actually carry a few swing states. This outcome could result in no candidate being able to win a majority in the Electoral College. So, what happens then?

While a third-party candidate has not won a single Electoral College vote since Governor George Wallace in 1968, if a third-party ticket were to win even a very small number of swing states in 2024—denying either major-party candidate 270 Electoral College votes—the presidential race would be thrown to House of Representatives.

Once the outcome is in the hands of the House of Representatives, it is overwhelmingly likely that Donald Trump would be elected. This is because in a House vote, each state gets one vote—as dictated by the Constitution—with Wyoming having the same weight as California. Republicans control a majority of House delegations today, and that is very unlikely to change with the 2024 congressional races.

Under this scenario, Trump would likely lose the popular vote again—as he has both other times he has run—and not win the Electoral College, either; but, the result nonetheless would be the catastrophe of another Trump presidency.

The election of 1876, 147 years ago, was the last time an Electoral College deadlock forced a House vote. The House vot was also deadlocked, ultimately resulting in a commission that lead to a compromise. Unfortunately, it was a compromise that resulted in the end of Reconstruction and a new chapter in oppression of Black people in the South.

So, looking at this situation, what do Democrats do? Is there a better course of action? David Ignatius of the Washington Post has been the most prominent commentator so far to suggest that President Biden step aside. If President Biden were to do so and there was no Biden versus Trump rematch, it is far more likely that the No Labels third-party effort would fizzle.

However, as of now, it's hard to see a way around a Biden vs. Trump redux, complete with the real possibility a strong third-party ticket throwing the race to Trump. But it is worth considering whether a third-party ticket would be so strong as to throw the election to the House of Representatives. How do the Democrats avoid this disaster?

Answer: The Democrats, for the sake of the nation, simply cannot allow the election to be decided by the House of Representatives. Moreover, No Labels' avowed goal is to prevent Donald Trump from assuming the presidency again. That means to prevent an Electoral College deadlock that throws the election to the House, there would need to be a compromise between the Biden/Harris and the No Labels tickets to secure an Electoral College majority for a non-Trump slate before December 15 when electors vote.

Oh boy, that would mean total chaos. It would be 1876 all over again, but this time a deal would need to be struck before a House vote to avoid what that vote would mean. So, how might a deal work? Does the Biden/Harris ticket have to give the vice president role to the No Labels candidate? Does No Labels get to dictate certain cabinet positions? Are we in a parliamentary-style negotiation to form a coalition government?

Of course, under this scenario Trump and his followers will be screaming that such unprecedented horse trading before an Electoral College vote is another form of stealing the election. What ensues from that outcry—does grass roots violence erupt?

Then you have a boatload of legal issues. Some states bind their electors to vote in the Electoral College in favor of the state's popular vote, but that's nowhere near the majority of states. There is also the possibility of "faithless electors," who vote against what their voters want. There are only a small number of states with laws that void a faithless elector's vote and replace that elector.

Key swing states—Pennsylvania, Georgia, Wisconsin, and Virginia—don't have laws that void votes, so voting for a political compromise by electors in those states is possible. Many other populous states have the same electoral rules as those above.

This unprecedented road would, in all likelihood, lead to chaos and conflict, but if a strong third-party candidacy is victorious in a few states, a compromise between Democratic and No Labels tickets may well be the only viable path if we are not to usher in a second, and far more destructive authoritarian Trump presidency. Chaos and compromise may be our only path to avoiding calamity.

Tom Rogers is executive chairman of Oorbit Gaming and Entertainment, an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, and a member of Keep Our Republic, an organization dedicated to preserving the nation's democracy.

The views expressed in this article are the writer's own.