Photo by Clay Banks on Unsplash

 

Nebraska is one of only two states that has a system that awards its Electoral College votes based on the popular vote in each of its congressional districts. However, there is a contingent of state lawmakers who want to change this with the support of former President Donald Trump.

The effort, which is also backed by Nebraska Gov. Jim Pillen, would adopt a “winner-takes-all” system for electoral votes, similar to what is in place in 48 states. The winner of the state’s popular vote would take all of its 5 electoral votes.

Right now, the winner of the state’s popular vote is guaranteed 2 electoral votes, but the remaining 3 depend on how candidates perform in each of Nebraska’s 3 congressional districts. The only other state that uses this method is Maine.

Changing this system could have significant ramifications in a tight presidential race – like what 2024 is anticipated to be. Gov. Pillen says moving to a “winner-takes-all system” would “better reflect the founders’ intent” and “ensure our state speaks with one unified voice in presidential elections.”

State Sen. Machaela Cavanaugh, on the other hand, says keeping the system the way it is “makes sure we have a more nuanced reflection of our state’s diversity.”

But for the parties, this is about electoral math and stopping the “other side.” Former campaign manager to Barack Obama, Jim Messina, said Nebraska moving to a “winner-takes-all” system “takes away Biden’s best path to win.”

Messina took into account Biden winning Wisconsin, Pennsylvania, and Michigan, and losing every other swing state on top of losing the one Nebraska electoral vote he received in 2020.

Turning Point USA founder and conservative commentator/activist Charlie Kirk noted:

“Suppose Donald Trump flips Arizona, Georgia, and Nevada next fall, as current polls all show him doing. Would he win the presidency? Not quite. In fact, if Trump flips those three states and no others, he loses by exactly ONE electoral vote. Why? Nebraska,”

It is all about who wins and who loses – not what is the most representative or accountable system for voters. 

Is it possible for a presidential election to come down to one electoral vote as Kirk suggests? Yes. Is it likely? No – not even in close contests. Trump won in 2016 against Hillary Clinton 304-227, despite losing the national popular vote.

Biden received 306 electoral votes in 2020 compared to Trump’s 232.

The window to change the system used in Nebraska in 2024 is closing. The legislative session in Nebraska ends on April 18. Due to actions taken by Speaker John Arch, if it is to pass the uniquely single-chamber legislature, it cannot be added on to another measure. 

It has to pass as its own law.

NPV? Winner-Takes-All? The Parties Want It All or Nothing

The conversation in Nebraska has become part of a larger debate on the Electoral College. Democrats tend to support moving to a national popular vote (NPV) system. The argument is that the Electoral College gives too much power to a handful of states. 

Many Democrats support the National Popular Vote Interstate Compact (NPVIC), which is an agreement among a group of states and the District of Columbia to award their electoral votes to the candidate who wins the national popular vote.

It would be a way to enact NPV without a constitutional amendment.

To date, 16 states and DC have adopted the NPVIC, but this only accounts for 206 of the 270 electoral votes needed to win a presidential election. The compact has no legal force until enough states adopt it to get to 270. 

Republicans tend to support the preservation of the Electoral College. The argument is that moving to NPV would be an urban power grab. The Electoral College protects the minority from the will of the majority and ensures all parts of the country are involved in the outcome of the election.

There are genuine concerns present in this debate. If the most populous areas pick the president, what about rural voters? In a “winner-takes-all system” under the Electoral College, what about the millions of voters whose decision did not mean anything?

In California, for instance, millions of Republicans and non-Democrats don’t have a voice in presidential elections. It doesn’t matter how they vote when the Democratic nominee easily wins all of the state’s electoral votes.

The same can be said for Democrats and non-Republican voters in Texas. 

What’s more, the hyper–polarized electoral environment in the US has raised the stakes of winning so high that a handful of swing states are not only the sole focus of the two major parties, but they are ground zero to election turmoil.

The need to win begets desperation. Desperation begets chaos. Misinformation abounds. Accusations of rigged processes become headlines. Election deniers surface. Calls for audits and recounts are inevitable. Lawsuits are filed.

And all of it is because the smallest margin of victory can give either party every electoral vote in these states. 

And this didn’t start in 2020. It goes back to the 2000 presidential election with George W. Bush and Al Gore.

The controversy in 2000 stemmed from premature press declarations in Florida for Gore and then Bush before the vote count in 3 counties left a slim margin between the two candidates.

In the end, 25 electoral votes came down to a difference of a few hundred ballots and demands for recounts or the end to recounts led to an unprecedented case and decision before the US Supreme Court. 

Polarization has reached such extremes that moving to NPV would not solve this issue. Legal battles and controversies would erupt in counties across the nation as the parties fight for every vote they can. 

Because that is all that matters: The parties put their interests above all.

It would also exacerbate the rural-urban divide as the entire presidential election could hinge on the results of a small handful of densely populated counties. At least, that is a major concern among those who are cautious or object to NPV.

There is a solution that neither party puts out there.

It is a solution that offers an opportunity to address all of the issues discussed. It would make the political minority relevant. It would mitigate concerns over a handful of jurisdictions having too much power – whether we are talking states or counties.

What if instead of changing Nebraska’s system, more states adopted the Nebraska and Maine model? 

The system is currently designed to bind states to a single party’s identity. The party who takes all of a state’s electoral votes gets to choose the electors – and they are selected based on their commitment to their party’s nominee.

State political parties have considerable authority in presidential elections. But, this is not how the Electoral College was intended to work.

The district-by-district model would better represent how voters cast their ballots. It would not erase the votes of the political minority in the state and would in fact make the political minority relevant in more states.

In California, for example, the 6 million voters who cast a ballot for Trump in 2020 would in many cases have an actual impact on how some electors are chosen. They wouldn’t feel like they cast their vote for nothing.

Currently, 11 congressional seats in California are held by Republicans. A few of these Republicans were elected in swing districts. The voters in these districts would actually matter in the conservation around electoral votes.

The same can be said for the 5.3 million voters who cast a ballot for Joe Biden in Texas in 2020 and the 13 congressional districts in the state held by Democrats. 

For some states, not much would change. States like Montana and Wyoming only have one congressional district each, so the popular vote in these states would determine how their electors are selected.

But the district-by-district model for the Electoral College would better reflect the electoral landscape. Millions of votes essentially thrown away each presidential election cycle under winner-takes-all rules would count.

And, it wouldn’t diminish the role of any state. If anything, more parts of the country would enter into the electoral calculus for campaigns and the press – meaning less “fly over country,” and more areas – and therefore more voters – involved.

For the parties, it has to be all or nothing, whether we are talking about NPV or winner-takes-all models for the Electoral College – because for them there is only win or lose and they will back whatever they think is their best path to victory. 

However, as the nation shifts to be more independent, elections cannot be defined so singularly by deep shades of red or blue. Elections should not treat millions of voters as irrelevant. Elections should reflect existing nuances within the voting population. 

With this in mind, a district-by-district model makes more sense than the solutions backed by the parties. It would also be more in line with what the architects of the Electoral College had in mind.

A Brief History of the Electoral College

Nebraska Gov. Jim Pillen and former President Donald Trump have said that the “winner-takes-all” system is what the Founders intended – a go-to argument among Republican candidates and politicians.

The Framers of the Constitution are always talked about like they were a monolith. But they weren’t, and many of the things that provide a foundation for the United States and its government came as a result of compromise between contrasting ideas. 

In Federalist No. 39, James Madison asserted that the Constitution was written to be a mixture of state-based and population-based government. It is why we have two chambers in Congress.

The Electoral College was meant to be a mixture of both as well.

In Federalist No. 68, Alexander Hamilton described how electors would ideally be chosen:

“A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks]... They [the framers of the constitution] have not made the appointment of the President to depend on any preexisting bodies of men [i.e. Electors pledged to vote one way or another], who might be tampered with beforehand to prostitute their votes [i.e., to be told how to vote]; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons [Electors to the Electoral College] for the temporary and sole purpose of making the appointment. And they have EXCLUDED from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office [in other words, no one can be an Elector who is prejudiced toward the president]... Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias [Electors must not come to the Electoral College with bias]. Their transient existence, and their detached [unbiased] situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it."

From this description, one can see a problem with “winner-takes-all.”

The electors were never meant to be pledged to a party or candidate. They were meant to act as independent agents of the people to select a president on behalf of the people.

And yet today, state parties are the ones that select electors – and they select electors based on loyalty to the party and the party’s nominee.

Both Hamilton and Madison supported a district-by-district model for selecting electors and argued that was the intention of the Framers of the Constitution. In some states, this meant a direct election of electors rather than voting on presidential candidates.

In 1823, Madison wrote to George Hays that “the district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; and was exchanged for the general ticket and the Legislative election.”

Thomas Jefferson agreed with Hamilton and Madison. He said “all agree that an election by districts would be the best.”

Officials in some states saw an opportunity to bolster a preferred partisan presidential candidate if they adopted rules that pledged all electors to the winner of a state’s popular vote. This gave rise to the general ticket and the winner-takes-all model.

After most states ratified the Constitution, some used a district model, some used a general ticket model, and the majority allowed their state legislature to select the electors. The legislative model, however, gradually fell out of favor in every state.

More and more states felt compelled to adopt the general ticket model in order to compete for the most influence in presidential elections until it was adopted in every state – regardless of what the Founders wanted. 

It was never about the Founders' intentions. It was about influence and as the parties exerted control over the electoral process, it became about serving their interests. 

The electoral landscape in the United States has changed. Voters are less committed to private political parties. There is a nuance to the US electorate that cannot be reflected in the current electoral system.

If the intention is truly to honor what the Founders wanted from the Electoral College, then more states should adopt a district-by-district model of electors free of obligation to party or candidate. They should not be agents of private political corporations. They should be independent agents of the people.