What Nebraska’s Electoral Votes Reveal About the Constitution

Here’s how rickety our constitutional system has become: The fate of the 2024 election could hang on the integrity of a single Republican state senator in Nebraska.

To understand why requires getting a bit deep in the Electoral College weeds. Almost all states use a winner-take-all system to apportion their presidential electors, but Nebraska and Maine award some electors by congressional district. In 2020, Joe Biden won one of Nebraska’s five electoral votes, and Donald Trump won one elector from rural Maine. This year Kamala Harris’s clearest path to victory is to take the so-called blue wall states of Pennsylvania, Michigan and Wisconsin, plus one electoral vote in Nebraska.

One reason that both states have resisted partisan pressure to switch to winner-take-all is the assumption that if one did so, the other would as well, balancing out any Electoral College effect. But this year, Republicans waited until it was too late for Maine to change its rules before starting a push to change them in Nebraska. If they succeeded and Harris held the blue wall but lost the other swing states, there would be a tie in the Electoral College. For the first time in 200 years, the election would go to the House, where each state delegation would get one vote and Trump would almost certainly be installed as president.

So far, one man, State Senator Mike McDonnell, who defected from the Democratic Party this spring, is standing in the Republican Party’s way. We should all be grateful for his courage. But the pressure on him from his new party will be intense, and he can still change his mind in the coming weeks.

Whether or not McDonnell remains steadfast, this is a preposterous way to run a purportedly democratic superpower. The Electoral College — created in part, as the scholar Akhil Reed Amar has shown, to protect slavery — has already given us two presidents in the 21st century who lost the popular vote, and it continues to warp our politics. It is one reason Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law and an eminent legal scholar, has come to despair of the Constitution he’s devoted much of his life to. “I believe that if the problems with the Constitution are not fixed — and if the country stays on its current path — we are heading to serious efforts at secession,” he writes in his bracing new book, “No Democracy Lasts Forever: How the Constitution Threatens the United States.”

Chemerinsky’s description of the way our Constitution thwarts the popular will — including through the Electoral College, the growing small-state advantage in the Senate and the rogue Supreme Court — will be familiar to readers of books like last year’s “Tyranny of the Minority” by Steven Levitsky and Daniel Ziblatt. The surprising part of his argument is his call for a new constitutional convention, which can be triggered, under the Constitution’s Article V, by a vote of two-thirds of the states.