How one congressional district in Nebraska could swing the election

Ruby-red Nebraska has long been ignored in presidential elections, only voting for the Democrat once since 1936. But the state has become now an electoral focal point.

The Cornhusker State is one of only two states that do not give all their electoral votes to the statewide winner. Instead, Nebraska uses a district-based system, where the state’s three congressional districts each get to cast their own separate Electoral College votes. Because of the peculiarities of the 2024 map, that one vote may make all the difference.

This allocation method, which was adopted before the 1992 election, was long seen as an innocuous curiosity. It never mattered until 2008, when Barack Obama became the first Democratic presidential candidate to win a single congressional district in the Nebraska, in the district that encompasses Omaha. Joe Biden followed up with a similar victory in 2020. In Maine, the other state that distributes electors based on district victories, Donald Trump won the state's rural northern 2nd District in both 2016 and 2020.

But what has changed is the overall map. Thanks to a Census allocation that removed a few Electoral College votes from the big blue states, the election is tighter than ever. With seven true swing states on the map, a Harris victory in three of those seven (Michigan, Pennsylvania and Wisconsin), plus a Harris victory in the one Nebraska swing district, would push her over the edge.

Meanwhile, in that scenario, a Harris loss in the Nebraska district would result in an Electoral College tie, which would lead to a “contingent election” in the House of Representatives. There, each state would get one vote. Republicans currently control 26 House delegations. If they maintain that majority — even if they lose their House majority — they would likely select Trump regardless of the popular vote margin.

The clear value of this single seat led to a high-pressure campaign by Republicans to make a last-minute change to a winner-take-all method, but that idea was quashed by a single state legislator.

Nebraska finds itself in this enviable position, but any state could have been there. The Constitution has no specified system of state electoral vote allocation, and in the earliest presidential elections, the states tried different approaches. The three main methods were having the state legislature hand out the votes as it saw fit; the winner-take-all model, known as the “unit rule”; and the district-based system.

Electoral College gamesmanship first emerged in 1800. After losing the close 1796 election, Thomas Jefferson and his supporters, who were proponents of the district-based system, saw that he would be in much better shape if Virginia switched to the unit rule. A similar dynamic played out in New York, where the Federalists made a terrible miscalculation and also moved the state to the unit rule. But thanks to an Aaron Burr-led upset victory in state legislative elections in the Empire State, the combined 33 votes from New York and Virginia all went to Jefferson’s Democratic-Republicans, putting them over the top nationally by eight electoral votes.

Over the next quarter-century, states flitted between the possible methods, including the non-democratic legislative allotment type, which six states used in 1824. The aftermath of the 1824 election, which saw no candidate get a majority and the House of Representatives choose John Quincy Adams over Andrew Jackson in a contingent election, resulted in massive changes in the electoral landscape. The rise of Jackson saw both the development of an enduring two-party system and a push for a more democratic political world. This meant that by 1832 every state but South Carolina entrusted voters with the right to choose their presidential electors, and by 1836, all but South Carolina adopted the unit rule.

With one exception — when Michigan switched to the district plan in 1892 to help Democratic nominee Grover Cleveland, and switched back by 1896 — the unit rule was in place nationwide until Maine adopted the district-based system for the 1972 election, followed by Nebraska in 1992. The idea has now paid off well for Nebraska, which would otherwise be completely ignored in the presidential election. 

Why has switching state electoral allocation methods gone out of style? After all, every state has a large number of voters who will cast their ballot for their other side (in 2020, both Biden and Trump received more than 25 percent of the vote in every single state).

Practical reasons play a role. One party needs either a trifecta — complete control over the governor’s office and the legislature — or a ballot measure to enact a change. It also needs to be in a state that party is likely to lose; otherwise, the party would just be sacrificing votes. While 40 states currently have a trifecta (23 Republican and 17 Democratic), in only one of them, New Hampshire, is the trifecta held by the party that is likely to lose the presidential vote, and both of New Hampshire’s House representatives are Democrats.

While the country may be on edge, Nebraska’s surprisingly enviable position is exactly the one that the backers of the district-based system should have desired. The state has received an inordinate amount of attention, and may win political favors that ordinarily would only go to swing states. Using the district-based system may pay off in the end for Nebraska voters.

Joshua Spivak is a senior research fellow at Berkeley Law’s California Constitution Center and a senior fellow at Hugh L. Carey Institute of Government Reform at Wagner College. He is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.”