Can Omaha Determine Who Becomes President? (Guest Post by Professor James F. Blumstein)
Can Omaha Determine Who Becomes President?
by James F. Blumstein, University Distinguished Professor, Vanderbilt Law School
There has been much talk about the so-called battleground states in this year’s Presidential election. But this year’s Presidential election may turn on a battleground district in Nebraska centered in Omaha.
Under our system for electing the President, it is votes in the electoral college that control. There are 538 votes in the electoral college -- one for each Senator (100), one for each Representative (435), plus three for the District of Columbia. Nearly all of the states allocate their entire electoral college vote to the statewide winner on a winner-takes-all basis; Maine and Nebraska do it differently, allocating some votes to the statewide winner but also allocating votes to the winner in each Congressional district.
The Constitution allows each state legislature to establish the basis for selecting electors, so Maine and Nebraska are on firm constitutional footing. In fact, there is no constitutional requirement for states to provide for popular election of electors; the legislature itself can constitutionally choose the electors without a vote of the people, but none do that now.
In case of a tie electoral college vote, the House of Representatives chooses the winner. Under the 12th Amendment, the House votes by state; each state has one vote. So Alaska, which has only one vote in the House of Representatives, has the same clout as California, which has 52 House members.
Seats in the House of Representatives are allocated in accordance with population. We have a constitutionally-mandated Census every 10 years, and House seats are reallocated based on the Census.
Since the 2020 presidential election, the revised Census favors states that trend Republican. For example, Florida, Montana, and North Carolina, all of which voted for President Trump’s re-election, each added an elector. In addition, Texas, which also supported Trump in 2020, has added two electors. But two states that supported Trump in 2020 – Ohio and West Virginia – have each lost an elector. So, for the 2024 Presidential election, there has been a net gain of three electoral votes for states that supported Trump’s re-election in 2020.
As a matter of interest, the following five states, which voted for President Biden in 2020, have each lost a seat in the electoral college: California, Illinois, Michigan, New York, and Pennsylvania. On the other hand, two states that backed Biden – Colorado and Oregon – have each gained a seat in the electoral college. This is the counterpart loss of three pro-Biden seats. (As of this writing, Biden will be the Democratic nominee, even though some in his party are urging him to step aside. Everything stated here about Biden would apply equally to a substitute Democratic nominee.)
The analytical fun begins by assuming that the pro-Trump states in 2020 remain with Trump in 2024. With the Census changes, those states amount to 235 electoral votes. If Trump can win Arizona (11 electoral votes), Georgia (16 electoral votes), and Nevada (6 electoral votes), he would add 33 electoral votes. And polls suggest that Trump has leads in all three of those states. Those 33 electoral votes plus the 235 electoral votes in previous pro-Trump states amount to 268 electoral votes, including the one electoral vote for Maine that went for Trump in 2020.
This is where Omaha comes in. The Omaha-centered district in Nebraska had traditionally voted Republican until 2008, when it went for President Obama. But it turned back Republican in 2012, supported Trump in 2016, but left Trump in 2020 – supporting Biden by 6.6%.
Boiled down, this means that, if the Omaha-centered district swings back to Trump – a true battleground of a single district -- then Trump will secure 269 electoral votes, even if the much-publicized battleground states of Michigan, Pennsylvania, and Wisconsin all go for Biden. And 269 electoral votes would mean a tie, so the tie-breaking would fall to the House of Representatives on a one-vote-per-state basis.
Under that scenario, elections in states like Alaska, where a Democrat holds its one seat in the House but is being vigorously challenged in a traditionally Republican state, can be of outsized significance. As of now, Republicans would hold 26 states in the House, Democrats would hold 22 states, and two states (Minnesota and North Carolina) would have the same number of representatives who are Democratic and Republican. So contested House races in states like Alaska, Michigan, Minnesota, North Carolina, Pennsylvania, and Virginia (where current partisan margins are very thin) could be pivotal, not only in determining control of the House but also in determining the outcome of the presidential election.