The state has an odd rule that gave Biden an electoral vote in 2020. Trump wants to change that. Can he?
On Tuesday, Nebraska Gov. Jim Pillen (R) urged his state’s legislature to change its rules for this year’s presidential election — a change that, if passed, would be very likely to flip one electoral vote from President Joe Biden to Donald Trump.
Nebraska currently has an unusual way of distributing its five electoral votes. Rather than giving them all to the statewide winner — as 48 other states do — it awards two votes to the statewide winner, and the rest go to the winner in each of Nebraska’s three congressional districts.
Nebraska is a deep red state that Trump won by a 19-point margin in 2020. However, Biden walked away with one of its electoral votes, because he won in Nebraska’s Second District, which includes the city of Omaha. Pillen and Trump want to switch this to a winner-take-all system, to lock down that vote for Trump.
The stakes could be enormous: the single electoral vote from Nebraska’s Second District really could determine whether Trump or Biden wins in 2024.
If Biden wins Pennsylvania, Wisconsin, and Michigan, while Trump wins Georgia, Arizona, and Nevada, and no other outcomes change from 2020, then Biden would need Nebraska’s Second District vote to win. If he doesn’t get it, the electoral vote would be a 269-269 tie. The new House of Representatives would break the tie with each state delegation getting one vote, and since Republicans will almost surely control more state delegations, that means a tie likely goes to Trump.
Importantly, though, it’s very unclear whether Nebraska Republicans have the votes to change this law. They would have to overcome a filibuster in the state legislature to do it, and Democrats in the state profess optimism that the GOP doesn’t have the votes.
And even if the rule change does pass, Democrats have an obvious option for a response: changing the rules in Maine. Maine is the only other state that splits its vote by congressional district, but there, the current rule benefits Trump — it delivered him one elector in a state Biden won. Democrats could, in theory, change Maine’s rules and cancel out any advantage gained by Trump.
But beyond the angling for partisan advantage, it is true that Nebraska’s and Maine’s rules are kind of odd — quirky historical accidents that arguably should be brought in line with the way the other 48 states do it. The fair way to do it would be for both to change their rules in the same cycle, standardizing the winner-take-all rule without handing either candidate an advantage.
Why oddball Nebraska and Maine split their votes by congressional district
The history of the Electoral College system is a bizarre one, but the modern norm of how it works is: each state holds a statewide vote, and the top candidate in that vote would get all of that state’s electors. That’s the winner-take-all system.
In the nation’s earliest decades, there was more variety. Some states didn’t give voters a direct say at all, letting state legislators simply pick electors. Others did hold a statewide vote, but counted the results in separate districts of the state, awarding electors that way.
The district system could allow regional differences to be represented. But it watered down a state’s impact on the national outcome, as compared to the winner-take-all system where all a state’s votes went to one candidate. And as partisan competition intensified, states flocked to winner-take-all — the district system was gone by the 1830s, and stayed gone for more than a century.
Then, in the latter half of the 20th century, it came back. Two states decided to switch to a system where two electoral votes would go to the statewide winner, and one electoral vote to the winner in each congressional district.
The first was Maine, in 1969, which adopted a proposal from an idiosyncratic legislator, whose apparent motivation was to help voters with different views be reflected in the Electoral College results. (Maine had used the district system back in the 1820s.) The second was Nebraska, in 1991, where legislators hoped to get presidential candidates to pay more attention to the state rather than writing off all its electoral votes as safely Republican.
One might think that proposals like this would move the Electoral College closer to proportional representation — but often, these proposals are just partisan dirty tricks. Republicans in Pennsylvania and Wisconsin have batted around the idea, believing gerrymandered congressional maps would guarantee them more than half the electors in swing states that more often lean Democratic.
But Maine and Nebraska do not seem to have had partisan motivations — and at first, there was no partisan impact, or indeed, any impact, because the statewide winner kept also winning every congressional district in both states.
As urban-rural partisan polarization intensified, that started to change. In 2008, Barack Obama won Nebraska’s Second District. Republicans responded by making the district more conservative in redistricting, but the underlying polarization trends continued and by 2020 Biden won it again. In Maine, the rural Second District swung to Trump in both 2016 and 2020. (Neither district was all that close in 2020 — Biden won NE-2 by 6.5 percentage points, and Trump won ME-2 by 7.5.)
So we’ve ended up with a system where 48 states use winner-take-all, and then two states throw a stray electoral vote to someone every so often, which is pretty odd — just one of many ways the US’s method of picking a president is ridiculous.
What’s going on in Nebraska now
As partisanship and polarization have risen, Nebraska Republicans have attempted to respond. Back in 2016, they tried to switch to a winner-take-all electoral vote system. But there was a problem — the filibuster.
Yes, the Cornhusker State is the rare state to have a legislative filibuster with a strong supermajority requirement. In fact, it’s stronger than the US Senate’s — a two-thirds vote, or 33 of 49 legislators, is necessary to overcome a filibuster in Nebraska. And though Republicans have regularly had big majorities, it’s proven maddeningly difficult for them to get over that hump. They fell just one vote short in 2016.
The latest push kicked off on Tuesday, when conservative activist Charlie Kirk wrote on X about a nightmare scenario for Trump supporters where Nebraska’s Second District could throw this year’s election to Biden. He urged Nebraskans to “call their legislators and their governor to demand their state stop pointlessly giving strength to their political enemies.”
Just hours later, Gov. Pillen made his announcement that, “in response to a call out for his support,” he supported such a change, and Trump praised him in a Truth Social post. (You might get the impression that this was not entirely an organic grassroots phenomenon.)
But many doubted that they had the votes. Republicans had 32 seats — one vote short of the 33 seats necessary to beat a filibuster.
The plot thickened on Wednesday when a Democratic state senator, Mike McDonnell, announced he was switching parties to the GOP — seemingly providing the necessary vote. Then the plot, er, thinned when McDonnell told Politico’s Elena Schneider that he would still support filibustering the electoral vote change.
Nebraska’s legislative session is scheduled to end on April 18, so we’ll get some clarity about whether Republicans have the votes soon enough. If they do manage to muscle the change through, Maine Democrats (who control the legislature and the governorship in their state) will face pressure to respond in kind. As they should — if Biden loses his shot at a stray electoral vote, Trump should lose his too.
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