Here’s the scary way Trump could win without the electoral or popular vote
In an ordinary time, under ordinary political conditions, the specter of another Trump presidency would be strictly the stuff of nightmares. The former president is facing 40 criminal charges for his mishandling of classified documents, and will have to interrupt his campaign next summer to defend himself in court. Those charges are apart from the 34 felony counts of falsifying business records he faces in New York. And then there’s the rape defamation lawsuit, which will begin in January, and which he will almost certainly lose.
The American people, however, can be awfully forgiving. In current polling, Joe Biden and Donald Trump are tied nationally; no Republican nominee has emerged to challenge Trump. But, as we have been learning pretty much continuously since 2000, the will of the majority of the American people no longer matters all that much in who is running their country.
The abstruse and elaborate mechanisms of the US constitution relating to elections, which used to be matters for historical curiosity, have become more and more relevant every year. In 2024, there is very much a way for Donald Trump to lose the popular vote, lose the electoral college, lose all his legal cases and still end up president of the United States in an entirely legal manner. It’s called a contingent election.
A contingent election is the process put in place to deal with the eventuality in which no presidential candidate reaches the threshold of 270 votes in the electoral college. In the early days of the American republic, when the duopoly of the two-party system was neither desired nor expected, this process was essential.
There have been two contingent elections in US history. The first was in 1825. The year before, Andrew Jackson, the man from the $20 bill, had won the plurality of votes and the plurality of electoral college votes as well, but after extensive, elaborate negotiations, John Quincy Adams took the presidency mostly by offering Henry Clay, who had come third in the election, secretary of state. Jackson, though shocked, conceded gracefully. He knew his time would come. His supporters used the taint of Adams’s “corrupt bargain” with Clay to ensure Jackson’s victory in 1828.
Jackson was a patriot. He put the country’s interests ahead of his own, to preserve the young republic. The
United States is older now, and the notion of leaders who would put the interests of the country ahead of themselves and their party is archaic. The 2022 midterms were unprecedented in terms of how many election deniers were appointed to serious office.
“Many 2020 election deniers and skeptics ran for office in the 2022 midterm elections, with 229 candidates winning their elections,” a University of California report found. “A total of 40 states elected a 2020 election denier or skeptic to various positions, from governor to secretary of state to attorney general to congress.”
The American people are already disinclined to believe in the legitimacy of any election that doesn’t conform to their own desired outcome any more, left or right. In 2016, at the inauguration of Donald Trump, the crowds chanted “not my president”. As of August, the percentage of Republicans who think that 2020 was stolen is near 70%.
So the possibility of the electoral college releasing a confusing result, or being unable to certify a satisfying result by two months after the election, is quite real. The electoral college, even at its best, is an arcane system, unworthy of a 21st-century country. There have been, up to 2020, 165 faithless electors in American history – electors who didn’t vote for the candidate they had pledged to vote for.
In 1836, Virginia faithless electors forced a contingent election for vicepresident. If the 270 marker has not been reached by 6 January, the contingent election takes place automatically. And the contingent election isn’t decided by the popular votes or the number of electoral college votes. Each state delegation in the House of Representatives is given a single vote for president. Each state delegation in the Senate is given a single vote for vicepresident.
The basic unfairness of this process is obvious: California with its 52 representatives, and Texas with its 38 representatives, would have the same say in determining the presidency as Wyoming and Vermont, which have one apiece. State delegations in the House would favor Republicans as a matter of course. In the struggle for congressional delegates, Republicans would have 19 safe House delegations and the Democrats would have 14, as it stands, with more states leaning Republican than Democrat.
All that would be required, from a technical, legal standpoint, is for enough electoral college votes to be uncounted or uncertified for the contingent election to take place, virtually guaranteeing a Republican victory and hence a Trump presidency. It would be entirely legal and constitutional. It just wouldn’t be recognizably democratic to anyone. Remember that autocracies have elections. It doesn’t matter who votes. It matters who counts.
In 2021, I published a book about American political decline, The Next Civil War, which examined the structural crises underlying the collapse of the American political order, but I didn’t include a chapter on the electoral system because it seemed too farfetched, the stuff of historical figments. Those deep structural crises are now, rapidly, overtaking the electoral system itself. A contingent election would be, in effect, the last election, which is the title of the new book I co-wrote with Andrew Yang about exactly that possibility. The rot is advancing faster than anybody could have imagined. Figments from history are now hints to the future.
Polls aren’t worth much at the best of times but this year they are particularly meaningless. Democrats have taken comfort from a recent New York Times/Siena College poll that showed how the Republican advantage in the electoral college, which was 2.9% in 2016, rising to 3.8% in 2020, has diminished to less than a single percentage point, according to the most recent data. None of it matters.
The real danger of 2024 isn’t even the possibility of a Trump presidency. It’s that the electoral system, in its arcane decrepitude, will produce an outcome that won’t be credible to anybody. The danger of 2024 is that it will be the last election.
Stephen Marche is a Canadian essayist and novelist. He is the author of The Next Civil War and How Shakespeare Changed Everything
biologist Clive Finlayson, author of The Smart Neanderthal and The Humans Who Went Extinct, was exasperated by the cultural influence of Boule’s scientifically groundless reconstruction. Armed with better-preserved skulls and fewer assumptions about the inferiority of the Neanderthals, he was in a position to show why our anatomical differences from Neanderthals have been overstated. In 2016, he went so far as to commission a pair of forensic artists to reconstruct full Neanderthal bodies based on a pair of skulls that had been discovered in Gibraltar, a trove of Neanderthal remains.
The reconstructed “Flint” and “Nana”, standing proudly erect, looked as he expected: uncannily (as we are tempted to say) human. “The exaggerated features of skull anatomy,” Finlayson writes, “really fade away once you put skin and flesh to the bone.” The philosopher Ludwig Wittgenstein once wrote that the best image of the human soul was the human body. Acknowledging the soul – the dignity – of the Neanderthal might well have to start with acknowledging how alike their bodies were to ours.
Does the difference, then, between the Neanderthal and sapiens consist in something to do with intelligence? But how exactly can we compare our intelligence with that of beings who aren’t available to sit an IQ test? The answer appears to lie in working out, from archaeological remains, what they were able to do.
What immediately catches the eye about the new Neanderthal research is that it has managed to gather so much from so little. Even in France, where Neanderthal research thrives, Slimak reminds us that “no archaeological operation has turned up a new Neanderthal body since the late 1970s”. But the scientists have learned to make do with the meagre traces the Neanderthals left behind. A bone and a flint here, a cave there, have proven enough to tell us vastly more than we knew when the first Neanderthal skeletons appeared in Germany.
A hypothesis from the 1960s offers a vivid example of the kind of evidence that can be adduced for Neanderthal intelligence. A team led by the Cambridge archaeologist Charles McBurney was excavating at a seaside cliff on the Channel Island of Jersey. An early 20thcentury dig had already turned up remnants – in the form of surviving teeth – of Neanderthal occupation. But at the base of the cliff, they found an uncommonly large number of bones belonging to mammoth and rhinoceros. Why were they there?
McBurney’s field assistant, Katharine Scott, advanced an intriguing hypothesis. Could the bones be there because the mammoths had tumbled to their deaths from the high cliff that overlooked the graveyard? Scott pointed to evidence, from surviving hunter-gatherer societies, of “drive lanes” used to kill large numbers of bison. The Native American hunters who had been known to practise this kind of hunting used controlled grass fires to sends the animals towards the cliff, and carefully positioned hunters to keep the animals moving. Had the Neanderthals used similar hunting techniques?
Papagianni and Morse propose that Scott’s hypothesis, if correct, attributes to the Neanderthals some quite advanced cognitive capacities. To pull off such a hunt, they “would have had to choreograph and execute a complex series of moves, testifying to their ability to plan several steps ahead and communicate that plan”. This suggests a picture of Neanderthals as well organised, co-operative killers, with advanced communicative systems.
The old picture of Neanderthals proposed that they had, at best, a tenuous grasp of how fire worked – perhaps they were able to use fire when they discovered it, but were unable to produce it when needed. But this is quite improbable. It is difficult to sustain the idea that a relatively fur-less species could have survived in Europe during the glacial periods, when they appear to have thrived, without a mastery of fire.
And so the archaeological record indeed suggests. Excavation sites are full of pieces of flint that show evidence of fire-making. Charcoal remains at these sites indicate that they were keenest on using resin-rich pine wood as fuel, suggesting they had decided tastes based on a long history of experimentation. They may even have learned to use bones to prolong the life of a fire, keeping them warm while they slept.
The study of ancient Neanderthal fires is itself a triumph of modern science. The name of the method – a mouthful – is “fuliginochronology”, a technique by which one turns a sooty cave into an archive, a veritable guest book of Neanderthal inhabitation. A fire burning in a cave will leave a mark in the form of “nano-scale stripes”, which, as Wragg Sykes helpfully explains, are “essentially tiny stratigraphies written in soot … formed when the fires of Neanderthals in residence ‘smoked’ the roof and walls, leaving thin soot films”. As one band of Neanderthals left the cave and another arrived, and started a new fire, the pattern of soot would produce a sort of unique barcode. All these fires could hardly be the work of a species with a tenuous grasp of its workings.
The Neanderthals, in other words, walked erect, hunted big game and knew how to control fire: hardly the knuckle-draggers of stereotype.
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Last year, the Nobel prize in physiology or medicine was given to the scientist whose work has put a number to just how human the Neanderthals were. Svante Pääbo, a Swedish geneticist, was a pioneer in the study of “paleogenetics”, which began with the discovery of how DNA might be extracted from a range of sources: old bones and teeth, naturally, but also from cave sediments. The techniques he and his colleagues refined have enabled us to know vastly more about the Neanderthals, their bodies, their habits and their habitats, than their 19th-century discoverers could ever have imagined possible.
Perhaps the most entertaining thing about Pääbo’s 2014 book, Neanderthal
Man: In Search of Lost Genomes, is how much of it is dedicated to an account of the palaeogeneticist’s greatest enemy: contamination. Pääbo takes us through the punctilious quest for absolute cleanliness in the laboratory and for methods that will help distinguish real Neanderthal DNA from samples contaminated with, say, the investigator’s own.
Having cut his teeth on trying to extract DNA from Egyptian mummies in the late 1970s, Pääbo began to apply his methods to even older bodies. His methods culminated in series of triumphs. First, he managed to extract mitochondrial DNA from a piece of ancient bone allowing him to publish, in 1997, the first Neanderthal DNA sequences. Thirteen years later came the publication of a full Neanderthal genome, based on DNA extracted from only three individuals.
The genome offered strong support to what had previously been only a hypothesis: that Homo sapiens and the Neanderthals had had a common ancestor who lived about 600,000 years ago. More significantly, it showed that when early Homo sapiens had walked from their original home in Africa into Eurasia, they had encountered Neanderthals there and interbred with them. The Neanderthals were among the genetic ancestors of modern Europeans and Asians (but not of modern Africans). Eurasians today have between 1.5 and 2.1% of Neanderthal DNA.
Unusually for a piece of genetics research, Pääbo’s results became the stuff of salacious tabloid headlines. Playboy magazine interviewed Pääbo about his research, producing a four-page story titled “Neanderthal Love: Would You Sleep with This Woman?” The mucky Amazonian Neanderthal woman featured in their illustration was not designed to be a fantasy object. Meanwhile, men wrote to Pääbo volunteering to be “examined for Neanderthal heritage” – perhaps seeking a scientific basis for their stereotypically Neanderthal traits, being “big, robust, muscular, somewhat crude, and perhaps a little simple”. It was mostly men who wrote in, though there was the occasional woman convinced her husband was a Neanderthal.
Other readers of this research have found Pääbo’s conclusions a source of comfort. Those wondering what had happened to the Neanderthals 40,000 years ago had long been tempted by a dark speculation: perhaps we, Homo sapiens, with our superior weapons and new microbes, had killed them off. But Pääbo’s conclusions give an otherwise tragic story something of a silver lining: the Neanderthals are still alive, as alive as the archaic Homo sapiens they interbred with. They live on, to use an apt cliche, in us, their (very) hybrid heirs. The one vital trace they have left behind lies in our genes, in the frustrating susceptibility that modern Eurasians with Neanderthal DNA have to burn in the sun and develop Crohn’s disease. Perhaps that is a surer way to restore them to dignity than any other: to see them not as falling prey to our ancestors but as our ancestors.
Not all Neanderthal researchers draw such comfort from the DNA studies. Ludovic Slimak thinks the
Neanderthals no more live on “in us” than an extinct wolf lives on in the poodle who shares sections of the archaic wolf genome. In Slimak’s way of thinking about the question, the comforting idea that there was no extinction, only a sort of “dilution”, is tantamount to a failure to see that Neanderthals were a genuinely “other” kind of humanity, neither better nor worse, and certainly not “soulless”. “That humanity”, he writes with a brutal brevity, “is extinct, totally extinct.”
Researchers anxious to emphasise how much Neanderthals were like us may well be motivated by the same worthy aspirations of those who thought they could fight racism by denying the existence of any real difference between human groups. But that, Slimak proposes, is itself racist. “Racism is the refusal of difference … Racism is those old images of Plains Indians trussed up in three-piece suits: just like us.” He sees this as a denial of radical difference, or “alterity” – a term popular in French philosophy and the social scientific theory inspired by it.
The old knuckle-dragging conceptions of Neanderthals certainly don’t do justice to what the evidence tells us. But they at least did the Neanderthals the courtesy of allowing them to be different from us. The challenge, Slimak argues, is not to dignify the Neanderthal by making them, effectively, identical to us, a sort of “ersatz sapiens”. The challenge is to let them have their dignity while remaining themselves, a different kind of human, a different kind of humanity.
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The unavoidable talk of “humanity” in these debates forces us to confront a more fundamental philosophical question of what exactly we take the “human” to mean in the first place. Agustín Fuentes, an American primatologist, writes that the deep moral lesson of our new research on the Neanderthals is that we now need to “reconceptualise the humanto recognise our contemporary diversity, complexity, and distinction as part of a narrative of hundreds of thousands of years of life, love, death, and art”. The contemporary champions of the Neanderthals do indeed seem to take the task before us to be one of recognition, of acknowledgment. But Slimak worries that the language of “recognition” conceals what is really going on: projection. And projection, even from the most honourably egalitarian of motives, is still a distortion and a failure to respect the dignity of difference.
There appear to be perils in both directions, perils that the analogy with racism brings out. These debates echo conversations that have haunted us since Columbus arrived in the New World in 1492. But it is an essential part of our conversations about colonialism that enough of the colonised – and enough of their ways of life – have survived for them, or their descendants, to give their own answers to these questions about similarity and difference. Importantly, not every person in a colonised nation has given the same answer to these questions. Maybe we shouldn’t even assume it has a single correct answer.
It is surprising just how affecting accounts of Neanderthal extinction can be, how often it moves otherwise sober science writers to unaccustomed pitches of lyricism. Being a responsible scientist, Wragg Sykes is aware that “ascribing any level of formal spirituality to Neanderthals would go far beyond the archaeological evidence”. But she is convinced that we have enough evidence to be able to say that “they too encountered all of life’s sensory marvels. Perhaps as photons from a salmon-belly sunset saturated their retinas, or the groaning song of a milehigh glacier filled their ears, Neanderthals’ brains translated this to something like awe”. Her “perhaps” registers her awareness that all this is speculation, maybe even wishful thinking, not (yet) science.
The Neanderthals cannot speak. As we put our insistent questions to their bones, their genes and their hearths, we can never be sure that the voice that answers isn’t just ours, echoing back to us from an ancient cave. But perhaps the mistake lies in thinking that the question “Are they like us or different?” presents a real choice. Perhaps the correct answer to that question is, quite simply, “Yes”. Maybe the best way to accord them their dignity is to treat them as we treat each other in at least one respect: by allowing them to be puzzling.
In puzzling over them, we reveal something of ourselves. Why might some of us care so much about creatures so long extinct? No doubt part of the answer is that questions about the Neanderthals serve as proxies for questions about ourselves. The old fiction writer’s choice between a picture of the Neanderthals as thugs and one of them as prototypical flower children no doubt reflects anxieties about human nature that have haunted the last few centuries of our history: are we built for war or peace?
There is more to this than a projection of narcissistic concern. Contemporary scientists appear to be divided between those who think Neanderthal dignity calls for a recognition of their similarity to us, and those who think it calls for a recognition of their difference. It is striking that the camps are of one mind in thinking that dignity – or respect or something of that kind – is owed here, and that fact itself needs an explanation.
But is it really all that eccentric? Is it really odder to want justice for extinct Neanderthals than it is to want a wrongly convicted friend to be posthumously exonerated? Thinkers dismissed in their lifetimes as kooks or cranks have been vindicated several centuries after their martyrdom, by those who rejoiced that justice had finally been done. It is, if anything, a part of human nature to resist the idea that our interests die with us: a part of our nature, and a beautiful one at that. And it makes one wonder: when the civilisations of Homo sapiens have been reduced to bones and rubble, will our successors on this planet, digging up our mounds of plastic waste, be as anxious to give us our due?
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