It’s Absolutely Inexcusable For Nebraska To Not Change To Winner Take All System

Because there is a great deal of uncertainty with any election, a good rule of thumb in presidential politics, especially in the era of rampant cheating and electoral fraud, is to control what you can and do not give the enemy any unforced errors. A case in point: Nebraska, a state with five electoral votes.  Nebraska is only one of two states in the union (the other being Maine) where its electoral votes are not allocated on a winner take all basis. This quirk has been Nebraska’s law since 1992, where the state legislature voted to implement a by-district allocation system.  In practical terms, what this means is the region that includes Democrat-leaning Omaha will occasionally break from the remaining four electors, which have always voted Republican since the law’s enactment some thirty years ago. Although not always the case, Barack Obama carried the one electoral vote encompassing the Omaha district in 2008, and Biden (allegedly) accomplished that feat again in 2020, with 52% to 46% of the vote.

In 2016, President Trump narrowly edged out Hillary Clinton in Nebraska’s second district, 48% to 46%, and thus took each one of Nebraska’s five electoral votes.  (He accomplished a similar feat in Maine’s rural second congressional district, where he picked up one electoral vote from the Pine Tree State both times he ran).  However, the problem with splitting electoral votes by congressional district is that it creates a greater risk that neither of the two major party candidates will get the vaunted 270 majority they need to avoid a contested election.  In the event neither candidate reaches that all-important threshold, the Constitution delineates that the President is chosen by the House of Representatives – with each state delegation receiving one vote apiece, regardless of the number of representatives from that state.  Because Republicans control a majority of state delegations, should neither candidate receive 270 votes this November, Donald Trump will become the next president.

What is the likelihood that neither candidate reaches 270 electoral votes?  In 2024, it is particularly high, which is why Democrats are fighting tooth and nail to prevent Nebraska from joining 48 other states in becoming winner-take-all.  Here’s the scenario: as affirmed by Monday’s favorable NY Times/Siena poll, President Trump currently leads in at least three of the four sunbelt battlegrounds: Arizona, Georgia, and North Carolina, all by significant margins.  The remaining sunbelt, Nevada, was not included in Monday’s Times poll, but has been trending in the President’s direction, where at one point earlier in the summer prior to Biden’s ouster, he enjoyed a double-digit lead. 

But it’s received wisdom that Nevada will break the way of other historically likeminded battlegrounds.  Nevada and Arizona have tracked the closest in recent years.  Both distributed their electoral votes – albeit under an illegitimate pretext, especially for Arizona – for Biden in 2020; and both have the 45^th President in the lead, based on the most reputable polling, this election year. 

So, in a worst-case scenario, where, for example, President Trump retains his formidable leads in each one of the key sunbelt battlegrounds – Arizona, North Carolina, and Georgia – and wins Nevada as well, that scenario would give him exactly 268 electoral votes, one shy of the 269-threshold necessary to be decided by the Republican-controlled House.  This would mean Harris wins the presidency on an unforced error, assuming Nebraska does not change its winner-take-all system and its one pesky electoral vote goes in her favor, rather than to President Trump.

Now, it’s not implausible that President Trump will not win all five of Nebraska’s electoral votes outright (after all, he did it cleanly back in 2016), even without the change in the law.  But if there is an opportunity to align Nebraska’s system with the overwhelming majority of states, save Maine, and allocate its votes based on who wins the statewide popular vote (while also mitigating the risk of Democrat-controlled Omaha-based fraud), why not make use of it?  After all, the greatest tragedy would be that, after everything this country and President Trump has been through, for Kamala Harris to squeak her way into the Oval Office through the skin of her teeth, and by something that was altogether avoidable.

As it stands, Republicans have a majority in Nebraska’s unicameral state legislature – indeed, a supermajority sufficient to override a would-be Democratic filibuster.  But what we’re witnessing already is the same kind of tired RINO subterfuge that has been a mainstay all throughout the Trump era, whereby squishy lawmakers defect from the party line out of cowardice, while feigning the worst display of self-righteousness to coddle Democratic sympathies.  The latest, pathetic case of this being the news that Mike McDonnell, a recent Democrat-turned-Republican in the Nebraska State Senate, who represents Omaha, coming out against the law change.

McDonnell, who follows in the footsteps of Mike Pence and other political turncoats, maintained being “43 days from Election Day” as an excuse to not “make this change.”  It is an unfortunate case of Republicans continuing their longstanding and sorry tradition of forsaking the greater good – and in this case, literally the fate of the country – for short-term, political … I don’t even know what!

While the Twelfth Amendment grants state legislatures with plenary – meaning, virtually exclusive or absolute – power over how state election procedures operate, the problem in Nebraska is not that the state legislature doesn’t have the political means to commence a change in the law.  It has that in spades; what it lacks is the political will.  The distinction is important because no matter how many Republicans comprise the state legislature – or any other legislature, state or federal – it’s almost invariably the same result whenever the going gets tough, particularly with respect to so-called “controversial” policies that nevertheless could well save the Republic — starting with, namely, getting President Trump back into the White House.

For his part, President Trump has been strongly in favor of the law change – even sending a fleet of congressional Republicans including Lindsay Graham to Nebraska in recent weeks to lobby the Governor on the law change. 

The President expressed his disappointment on Truth Social Monday upon receiving news of McDonnell’s limp-wristed move:

Republicans, in sharp contrast with their Democratic peers, have not internalized the universal, ironclad laws of power.  When you have the upper hand, you should make use of the power you possess – if not to give you the advantage, then at least to not give your opponent any undue benefits.   These rules are only heightened by the gravity of this presidential contest – and the ultra high stakes of what the November 5^th contest represents.  This is not simply “politics as usual”; it is not a question of economics or immigration or even the avoidance of global war, though each of those issues are doubtlessly of grave importance. 

This is an election, ultimately, about the soul of the nation.  Whether the United States will survive as a free country, one that preserves — and cherishes — the Constitution, the law of the land, and the rule of law. Or, conversely, one that succumbs to the creeping forces of tyranny that are vying to cement their hegemony over the federal government and all institutions of power in this once great land permanently.

If the frightening latter prospect should win out, and by a technicality as utterly dumb and feckless as this would be, President Trump risks facing jail time, the consequence of a fanatical DOJ and FBI out for blood – in every sense of the phrase.  Following his persecution, would be the persecution of hundreds of millions of American citizens, as nobody would be standing in their way, and the death knell of everything they and their forefathers have fought so valiantly to preserve and pass on from generation after generation.  It would be an unfortunate end to an unfortunate time, made all the more tragic by the fact that those who should have known better could have avoided its demise, but were unwilling to do so when the need was absolutely greatest. 

Readers could express their disappointment in Nebraska State Senator, Mike McDonnell, by emailing him a civil note of their dissatisfaction here: [email protected].  

They should also write a cordial note to Nebraska’s Governor, Jim Pillen (R) here, encouraging him to not give up the fight and strategically wield his gubernatorial powers – including potentially using emergency powers or pressing impeachment charges against wayward Republicans – to ensure a change in the Nebraska law before November 5^th: https://governor.nebraska.gov/contact-form. 

Paul Ingrassia, a graduate of Fordham University and Cornell Law School, is an Attorney; Communications Director of the NCLU; a two-time Claremont Fellow, and is on the Board of Advisors of the NYYR Club and the Italian American Civil Rights League. He writes a widely read Substack that is regularly posted on Truth Social by President Trump. Follow Paul on X @PaulIngrassia, Substack, Truth Social, Instagram, and Rumble.

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.