ME-02 v. NE-02: The Battle Between Maine and Nebraska Over the Allocation of Presidential Electors
October 25, 2024
By: John Thayer
Maine and Nebraska, with their respective four and five electoral college votes, are seldom thought of as particularly relevant to any presidential candidate’s path to victory. For a brief period, however, it appeared as though the results of the electoral college in 2024 could be determined by legislative developments in those states. That is, until September 23, when one Nebraska state senator seemingly put the notion to rest.
Nebraska and Maine are the only two states to not follow the “winner-take-all” system in the electoral college, whereby the winner of the statewide vote is awarded all of the state’s electoral votes. Instead, the two states follow the Congressional District Method, by which one electoral vote is awarded per congressional district won, with the remaining two electoral votes awarded to the statewide winner. Maine has adhered to this system since 1972, while Nebraska has followed it since 1996.
In Nebraska, this method appeared at risk of being turned on its head in the lead-up to the 2024 presidential election. Former President Trump, along with other prominent Republicans such as Senator Lindsey Graham of South Carolina, have been pushing the GOP-controlled Nebraska legislature to switch to the winner-take-all system currently in place in the other 48 states. Such a move would all but guarantee Trump an extra vote in the electoral college, as it would prevent the 2nd Congressional District from going to Vice President Harris. While the district has flip-flopped between the parties, having voted for Barack Obama in 2008, Mitt Romney in 2012, Donald Trump in 2016, and Joe Biden in 2020, it is expected to vote solidly blue in the 2024 presidential election. The district includes Vice Presidential nominee Tim Walz’s birthplace of Omaha, and recent polling has shown Harris up by eight points—two points more than Biden’s six-point margin of victory in the district in 2020.
A similar push was made back in April, led by conservatives across the country, including Trump and Turning Point USA President Charlie Kirk. At the time, despite the state’s Republican majority and support from Governor Jim Pillen, the effort lacked the requisite 33 votes to overcome a filibuster. That said, Governor Pillen stated that he would call a special legislative session if there was sufficient support to pass the measure. Nebraska’s unicameral legislature is currently made up of 33 Republicans, 15 Democrats, and one progressive who is registered as an independent, meaning that Republicans would need to be entirely unified in order to pass the measure.
Maine responded to this development in kind, with Democratic Majority Leader Maureen Terry pledging to adopt a similar measure to offset any change to Nebraska’s system. If Maine switched to winner-take-all, President Trump would fail to secure an electoral vote from the rural Second District, which Obama won in 2008 and 2012 and Trump won in 2016 and 2020. The district is almost the mirror image of Nebraska’s Second District—The Hill’s model currently predicts that Trump has an 83% chance of winning ME-02, while Harris has an 82% chance of winning NE-02.
The issue in Maine, however, is one of timing. While Maine has the votes to enact such a measure with its Democratic trifecta, absent a supermajority in both chambers, which Democrats do not have, it takes 90 days for legislation to go into effect after being enacted. This timing hurdle would preclude any bill from taking force before the deadline of December 17 for presidential electors to cast their votes under the recently enacted Electoral Count Reform Act. By the time Governor Pillen convened two dozen state senators at the Governor’s Mansion in mid-September with a renewed push to pass the measure, any countermeasure adopted in Maine would come too late.
Thus, for about a week, it appeared as though the Nebraska legislature was poised to hand Trump an additional electoral vote, dramatically changing the path to 270. Under the current system, President Harris would receive exactly 270 votes if she captured Pennsylvania, Michigan, and Wisconsin, where polling has consistently been in her favor, even if she lost the Sun Belt swing states of Arizona, Georgia, Nevada, and North Carolina. Under a system where Nebraska adopted a winner-take-all system and Maine was stuck using the Congressional District Method, such a scenario would leave the candidates tied at 269, throwing the election to the (currently) GOP-controlled U.S. House of Representatives and dramatically raising the stakes for the control of the House in 2022. In that scenario, each state, regardless of population, gets a single vote, and Republicans currently control a majority of House delegations.
Democrats across the country breathed a collective sigh of relief on Monday, September 23, when Nebraska State Senator Mike McDonnell—who switched to the Republican party this year after being censured by the Democrats for his anti-abortion stances—announced that he would not support a switch to winner-take-all. As a result, there appears to be no path forward for such a change, as the odds of a defection from any of the 16 non-Republican state legislators are slim to none. That said, it cannot be understated how close the country came to a drastic shift in the electoral landscape due to the potential actions (and, in the case of Maine, inactions) from two states rarely discussed in the context of presidential electoral outcomes.