The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Election 2020

Our Curious Electoral System

Nebraska (!) may well turn out to have provided the critical vote for a Biden victory


As I write this, several news outlets (including Fox News) are calling AZ for Biden, giving him 264 Electoral Votes.  Four states remain outstanding—NV, PA, GA, and NC.  Each has 6 or more EVs, so if he wins any of them, he wins the election. And at the moment, at least, he is the odds-on favorite in three of the four; at, he's listed as a 9 to 5 favorite in GA (i.e. $9 wins you $5) and a 5 to 1 favorite in both NV and PA. Trump needs a four-state parlay to come in to get him to 270, and it doesn't look like he'll make it.

Thank you, Nebraska!!  Nebraska is one of only two states—ME is the other—that does not allocate its EVs on a winner-take-all basis.  [The fact that all other states have—independently, through their own state electoral laws—chosen to use winner-take-all for their EVs is one of the most consequential features of our electoral system, rather remarkable given how little attention it receives; if all of the states used some form of proportional allocation, for instance, we would have, in effect, a national popular vote for president.]

But Nebraska awards two of its EVs to the statewide winner of the popular vote, and one EV each to each of the state's three congressional districts. In 2016, Trump won all five of Nebraska's EVs. This year, however, Biden carried the 2d District—encompassing Omaha and environs.

If Biden ends up carrying only NV of the four remaining states, he'll win, but only by the slimmest of possible margins: 270-268.  Without the vote from the 2d District, it's a tie, 269-269, at which point the election would go to the House. And in the House—which, under Article II of the Constitution, votes on a state-by-state basis—Trump would almost certainly win.

Because of the voters in the 2d District, things look a LOT less uncertain at this moment than they otherwise would have.  And while I am pretty confident that Biden will win PA or GA to make this discussion moot, it is somehow invigorating to consider the irony that voters in the reddest of red states may well end up having awarded the presidency to Joe Biden.

[h/t to Prof. Abner Greene, who first brought the possibility that the 2d District would prove decisive to my attention several weeks ago.]