Trump Could Win Another Lesser-of-Two-Evils Election

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Trump’s shocking 2016 victory over Hillary Clinton was driven by his solid win among the many voters who disliked both major candidates. Exit polls showed 18 percent of voters fell into this category, and Trump won them by 17 percent. It’s far less well known that despite losing in 2020, Trump won “I hate ’em both” voters once again by about the same margin as in 2016. The big difference was that their share of the electorate dropped from 17 percent to 3 percent. Both Trump and Joe Biden had lower unfavorable ratings than either candidate did in 2016; but in general, Biden was significantly more popular than Clinton had been. Still, Trump’s showing among the haters, defying what most polls had been predicting, was one of the reasons he did better than expected.

Now, 2024 election polls suggest the pool of voters disgruntled with both candidates in a Biden-Trump rematch could be back at 2016 levels, if not higher, as CNN’s Harry Enten reported:

When you zoom in on those who [in a June CNN survey] were unfavorably inclined toward Biden and Trump (i.e., putting aside those who were unsure or were neutral), 22% of adults and 21% of registered voters had an unfavorable view of both men …

“If the numbers we’re seeing now in CNN polling continue through the election, more Americans will dislike both major party nominees for president than ever before.
Republican pollster David Winston notes in Roll Call that unlike the situation in 2020, Biden’s popularity and Trump’s are nearly identical in current polling:

Today, Biden and Trump’s favorable-unfavorable, according to the June 18 RealClearPolitics average, are remarkably similar, with Biden at 40 percent-55 percent favorable-unfavorable and Trump at 39 percent-55 percent favorable-unfavorable. Neither has improved their standing with independents.

If the rematch that voters don’t want is the end result, we may see some similarities with 2016, given both Biden and Trump’s unfavorables, especially with independents”.

Republican pollster David Winston notes in Roll Call that unlike the situation in 2020, Biden’s popularity and Trump’s are nearly identical in current polling:

“If the rematch that voters don’t want is the end result, we may see some similarities with 2016, given both Biden and Trump’s unfavorables, especially with independents.”

And if Trump wins this larger number of disgruntled but ballot-casting voters once again, he could have a path back to the White House despite his persistent unpopularity.

But that’s just one of multiple directions the general-election contest could ultimately take. If objective conditions in the country — especially the economy — continue to improve, and Biden makes no major mistakes, the president’s popularity could rebound to 2020 levels. Meanwhile, Trump is entirely capable of making himself even more unpopular among general-election voters, who will be constantly exposed to the former president’s allegedly criminal activity and will also hear some criticisms from rival Republican candidates. Indeed, if Trump begins unambiguously looking like a general-election loser, the odds of Republican primary voters turning to an alternative like Ron DeSantis could go up significantly.

Another scenario might be a surge in support for options other than the major-party candidates. It remains very unlikely that a significant new independent candidacy, like the one being plotted by the No Labels organization, will emerge as a viable presidential option; barriers remain to adequate ballot access for the group’s as-yet-unknown candidate, and growing hostility from centrist Democrats could undermine the effort as well. But the percentage of the vote cast for existing minor-party candidates could definitely affect the outcome: That vote dropped from 5.7 percent (the highest percentage since Ross Perot’s last candidacy in 1996) in 2016 to 1.9 percent in 2020, almost certainly boosting Biden’s popular-vote margin and perhaps flipping states. It’s also possible unhappiness with both major-party candidates could dampen turnout, which jumped from 59.2 percent in 2016 to 66.9 percent in 2020; all other things being equal, that might hurt Biden’s odds of winning reelection.

All in all, though, the high percentage of unhappy voters should serve as a cautionary tale to anyone who thinks Donald Trump has disqualified himself from any serious chance of reentering the White House. He’s won one lesser-of-two-evils election and came very close to winning another.

We can no longer dismiss the outlandish ones. We would be silly to write off Trump or DeSantis, although the latter seems to be self-immolating recently.

Well to be honest isn't every election in this country a lesser-of-two-evils thing because of the Democratic-Republican duopoly? Sorry if that's putting it too simplistically.

I'm not sure how the whole "going to prison" thing will allow him to even run, but I just hope we don't get DeSantis >_<

This has been covered by every news talking guy & commentator in the USA and beyond. It is not against the law for someone to run for potus from jail as a convicted criminal.

If you bring it up, it's always "Sure, just throw your vote away."


I don't watch the news. That's crazy.
So, hypothetically, he's convicted, and in a cell, and he wins a Presidential election...they just give him work release and let him go to the Whitehouse every day??

Astoundingly and despite—indeed perhaps in part because of—his recent indictment on charges of felony falsification of business records, Donald Trump is the clear frontrunner for the Republican nomination for President in 2024.

Much could change between now and the primaries next year, but the indictment, the potential for indictments on three other sets of charges, and Trump’s grip on his party’s base all point to the possibility that he could be elected President while in prison.

What happens then? As I explain below, the best reading of the Constitution would render him ineligible to serve as President while in prison but in any plausible scenario in which Trump returns to the Oval Office in 2025, the only actors authorized to declare him ineligible would be extremely unlikely to do so. Thus, we face the genuine possibility that Trump would serve some or all of a presidential term while in prison.

Constitutional Grounds for Ineligibility
Article II of the Constitution sets out the qualifications for the presidency. One must be “a natural born citizen,” at least 35 years old, and a U.S. resident for at least 14 years. In Powell v. McCormack, the Supreme Court ruled that the House of Representatives could not add qualifications for its members beyond those listed in Article I. The same logic would appear to apply to qualifications for the presidency. Thus, even though one would hope that the voters would consider “not being a felon still under sentence” a de facto requirement for the presidency, as a formal matter, it is not.

Nonetheless, three additional constitutional provisions may be relevant. First, at least some of the charges Trump faces could be deemed “high crimes and misdemeanors” within the meaning of Article II, Section 4 of the Constitution, thus warranting impeachment by the House and removal by the Senate. Second, if Trump is actually in prison on Inauguration Day, that fact could render him “unable to discharge the powers and duties of his office” within the meaning of the Twenty-fifth Amendment. Third, depending on the nature and disposition of the charges brought by Smith, Section 3 of the Fourteenth Amendment could render Trump ineligible to hold any federal office, including the presidency, in virtue of his “having previously taken an oath . . . to support the Constitution” but then having “engaged in insurrection or rebellion.”

Yet each of these paths to disqualifying a felonious Trump faces substantial obstacles. Removal is not self-executing under either the impeachment clause of Article II or the Twenty-fifth Amendment. In any realistic scenario in which Trump becomes President again, at least a third (and most likely a much larger fraction) of the senators will be Republicans. As we saw the first two times Trump was impeached, regardless of the evidence, enough Republican senators will vote to acquit him to ensure that he remains in office. Meanwhile, even to initiate Trump’s removal via the Twenty-fifth Amendment requires cooperation of his Vice President and a majority of his own Cabinet. Given Trump’s transactional orientation and instinct for self-preservation, he would surely extract a promise of fealty from his running mate and any Cabinet nominees as the price of their positions.

Disqualification from office for rebellion or insurrection under Section 3 of the Fourteenth Amendment is likewise not a self-executing provision but it does not require the acquiescence of Trump-allied elected officials to come into play. The judiciary makes the relevant findings. A conviction on charges of insurrection (or its equivalent) could entail automatic ineligibility for Trump.

The Pardon Loophole?
Yet Section 3 of the Fourteenth Amendment is no magic bullet. If Trump becomes President again, he might try to pardon himself. In the 1871 case of United States v. Klein, the Supreme Court ruled that someone who had received a presidential pardon could not be deemed disloyal in virtue of his having participated on the Confederate side of the Civil War. The case involved the disposition of property rather than eligibility for office under the Fourteenth Amendment, but it nonetheless suggests that a pardon could be effective as a means of removing the taint of insurrection.

Can a President pardon himself? As I noted in a 2017 column, although the Constitution is probably best read to foreclose self-pardons, there is sufficient doubt about the matter that Trump might attempt it. Moreover, a putative prohibition on self-pardons would be relatively simple to evade with support from a pliant Congress under Republican control. Trump could resign, leaving the office of the presidency vacant. His Vice President—let’s call her Marjorie—would then become President. Marjorie would then pardon Trump and also name him as her Vice President, which Congress would confirm. At that point, Marjorie would resign the presidency, Trump would again become President, he would nominate Marjorie as his Vice President, and Congress would confirm that choice.

To be sure, the musical-chairs pardon ploy will not work if Trump’s conviction for insurrection precedes the election. At that point, he (or to be more precise, electors pledged to him) could be kept off of the ballot. However, given state administration of elections, he might stay on the ballot in enough states that he needs to win to prevail in the Electoral College. Thus, even a conviction for insurrection before the election might not suffice to prevent Trump from taking office. And if he were to become President, at that point, he could wipe out his prison sentence with either a self-pardon or a pardon by his pliant Vice President and the musical-chairs plot outlined above.

Whatever its other limits, however, the pardon power applies only to federal crimes. If, on January 20, 2025, Trump is in state prison (much more likely in Georgia than in New York) but also due to be inaugurated, neither he nor his Vice President could pardon and thus release him. Yes, he would be subject to removal via either impeachment or the Twenty-fifth Amendment but, as noted above, Congress and his Cabinet would be unlikely to invoke those processes.

Hence, crazy as it sounds, there does seem to be some realistic chance that Trump could be President while serving a prison sentence in Georgia.

If you bring it up, it's always "Sure, just throw your vote away."


I don't watch the news. That's crazy.
So, hypothetically, he's convicted, and in a cell, and he wins a Presidential election...they just give him work release and let him go to the Whitehouse every day??