Member Newsletter
I’ve had various readers tell me that I’m saying people shouldn’t be worried about the presidential election. That’s not true at all. I want people to have a realistic sense of the situation and I want people, for lack of a better word, to worry productively. But along these lines, I wanted to mention something that legit worries me. I think we all know that there’s a high likelihood of post-election shenanigans and potentially things much worse than shenanigans, especially if Joe Biden wins but wins narrowly. But there’s one scenario that particularly has my attention.
Let me walk you through it.
I’ve mentioned a number of times that at present the race is basically tied in the Blue Wall states of Wisconsin, Michigan and Pennsylvania while Biden is significantly behind in Nevada, Arizona and Georgia. So it’s not a crazy idea to imagine that Biden holds those three Blue Wall states and loses the other three. That gives us a Biden 270, Trump 268 Biden win.
But there’s an important additional detail.
There are two states which do not use the standard winner-take-all approach to allotting electoral votes: Nebraska and Maine. Both states have one district that often goes to the party that doesn’t win the state overall.
Now let’s zoom in on the single electoral vote that Democrats have usually won in Nebraska in recent elections. My 270-268 total assumes Democrats get one vote out of Nebraska and Republicans get one out of Maine. So it’s a wash.
Earlier this year, Republicans made a push to change their system in Nebraska and make it winner-take-all. They absolutely know how important it is. They weren’t able to do it. Too much resistance in the state, especially in the state’s 2nd district.
But let’s say we get that 270-268 finish. Do we think Republicans are going to say, “well, we came close but I guess we lost. Oh well.” I kind of doubt it. Given that Republicans and especially the Trump campaign simply tried to reverse the results in multiple states and led a violent insurrection against the Capitol when he lost by a good margin, I really doubt they just take the L.
It seems to me there would be a massive push to get the state to give all its electoral votes to Trump. Can it do that? Well, by any normal standard, of course not. There’s pretty good law out there saying that states can run their elections mostly as they please but can’t change the rules after the election has occurred. And yes, courts generally shot down all the efforts to change the results in 2020. We can also note on the other side of the equation that Trump coupism has become normalized in the GOP since 2020 and most of the elected election administrators in red states are now very Trumpy and very “stop the steal.” But the big attempt in 2020 was to have state legislatures simply change the results of the election. So Biden wins Arizona and they want the state legislature to say “Trump won.”
But this isn’t the same. Trump will almost certainly win Nebraska. No one has to come up with a different vote result. The question would simply be how to allot the electors. And states have broad discretion to make those rules as they choose. There can’t be anything wrong with winner-take-all since it’s the system in 48 states.
Let’s be clear. I’m not saying it would be okay giving that Biden elector to Trump. Not remotely. It breaks the most foundational rules. In any sane world, it breaks all the rules. I’m simply saying it’s a touch fuzzier. And that gives more leeway, more of an excuse for corrupt justices like Sam Alito and Brett Kavanaugh and the other four to participate in Trump’s coup this time rather than block it.
What can anyone do about it? I guess they could start talking to folks in Maine to be ready to even the score if it happens. Or more people could start thinking through the legal arguments now to drive home the illegality of such a maneuver and warn judges off from going along with it. Maybe the state legislature will just say no. They did refuse to change the rules in advance when they were totally entitled to do so.
Anyway, worth keeping in the back of your head.
Remember, an electoral tie is not a tie. Even if the House goes Democratic (which I’m expecting at this point), the House chooses the next President based on the vote of state delegations and Republicans will almost certainly control the majority of state delegations even if they lose control of the House. So a 269-269 tie is Trump presidency.
Have a nice Memorial Day weekend.