Good Old Democracy
Nebraska may change its electoral system at the last second to help Trump win
American democracy is in a fragile place. If you haven’t figured that out by this point, you haven’t been paying attention. The dangers are coming from all sides.
Donald Trump has just survived his second apparent assassination attempt. The governor of Ohio has had to call in the state police to monitor a spate of bomb threats to local schools after falsehoods about Haitian immigrants eating cats and dogs in the area began circulating. That’s aside from all the usual mass shootings, Proud Boy marches and the rest of it. But inside this fomenting turmoil, the most dangerous spot in the whole country, the rock on which the American state may well founder, is the quiet congressional district of Omaha, Nebraska, the very heart of the American heartland.
Omaha is dangerous, not in itself, but due to the entirely weird position it inhabits inside the electoral college. In one of those strange freaks of American politics, Nebraska has a split electoral college vote, and for the past few elections the city of Omaha has reliably voted Democrat. The other two electoral districts vote solidly Republican. Ordinarily, this little hiccup in the system wouldn’t matter much. But 2024 represents a uniquely precarious moment.
As it stands, once you remove the settled Democrat and Republican states, the most direct path to a Kamala Harris victory is by way of Wisconsin, Michigan and Pennsylvania. With those three states, she would receive exactly 270 electoral college seats, the number she needs to win. In that case, she would win if, and only if, she holds that one electoral college vote in the congressional district of Omaha, Nebraska.
The Omaha congressional district hasn’t mattered much due to a kind of bipartisan detente, a balance of power. Nebraska is not the only state that splits its electoral system by district. So does Maine. And Maine, while mostly Democratic, has a similarly reliable Republican constituency, which will almost certainly give its electoral college seat to Trump. If Nebraska changes its system to give Trump an advantage, Maine has said it will
reciprocate in order to cancel out any attempt to shift the balance of power.
Largely for this reason, the inclination to change the law has been muted in Nebraska, even though Republicans control the statehouse. Having a contested electoral college seat also makes Nebraska slightly more worthy of attention from both national parties, meaning the current division is, to some small degree, in the interests of Nebraskans on the whole.
Yet that state of detente may be set to unravel. The Maine legislature has now gone out of session, and last Friday, Jim Pillen, the governor of Nebraska, made a public statement: “I strongly support statewide unity and joining 48 other states by awarding all five of our electoral college votes to the presidential candidate who wins the majority of Nebraskans’ votes,” he said. “As I have also made clear, I am willing to convene the Legislature for a special session to fix this 30-year-old problem before the 2024 election. However, I must receive clear and public indication that 33 senators are willing to vote in such a session to restore winner-take-all.”
Pillen is effectively deflecting the electoral college question onto the state senators, but he is also opening the door to the possibility of the switch, which could alter the course of the election.
Republicans would not even need to switch the electoral college seat to win. They only need to muddy the waters. If, for example, the Nebraska legislature ensured that their electoral college votes were in dispute, and the courts had not decided the matter by 6 January, and no one had reached the threshold of 270, that state of affairs would automatically trigger a
contingent election. In a contingent election, another abstruse mechanism of the US electoral system, each state delegation, whether it’s California or Wyoming, gets a single vote, which means that the Republicans would always win. (This possibility is the subject of
a book I wrote with Andrew Yang, The Last Election.)
The sheer boredom of what I’m describing here, the banal technicalities of the complex legal structures in place, may, on the surface, seem less frightening than assassination attempts and bomb threats and cooked pets and armed militias. But don’t misunderstand: this is the real danger America faces. The complexity
is the trap. The complexity makes it easy for people to believe that somehow they haven’t been tricked, that a functioning democratic system, however bizarre, is still in place, even when it clearly isn’t anymore.
It goes without saying that the nightmare I’ve described here – which could absolutely happen – is only one of several glitches in the electoral system which could undo the United States.
(Georgia is a whole other nightmare.) The Republicans have set themselves up to maximize incoherence, exactly because they are aware of the vulnerability of the system.
Needless to say, incoherence of outcome is precisely the opposite of what the founders intended when they established the electoral college 240 years ago. They were living in a different world, though. The electoral college was the product of an 18th-century agrarian society whose Capitol sat a hundred miles from virgin forest. At this point in history, it is little more than a legitimacy crisis in progress.
The founders built their system to avoid exactly the kind of situation that the erasure of the district Omaha, Nebraska, would represent: the possibility of democracy in bad faith and by name only.
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