A minority of Nebraska legislators is keeping the state from switching to a winner-take-all electoral system, and Democrats are thrilled.
Sometimes, subtle ironies are the most delicious.
A renewed push in the Nebraska legislature to make the state winner-take-all in the presidential race has caused a panic among Kamala Harris allies. Right now, the state distributes some of its electoral votes via congressional district. Joe Biden won Nebraska’s second congressional district in 2020, and Harris could plausibly win that district in November. If Nebraska switches to a winner-take-all system, Harris’s path to 270 could be narrowed. No wonder MSNBC calls it an “electoral vote heist.”
I’ll not weigh in here on whether Nebraska should be winner-take-all. Obviously, there are partisan interests at play. Republicans from across the country, including South Carolina senator Lindsey Graham, are now lobbying the Nebraska legislature to switch to winner-take-all. But they don’t seem to be making the same effort in Maine, which splits its votes to Donald Trump’s advantage (he won a congressional district in the state twice while losing the popular vote there). The reality of those partisan calculations is not especially interesting. Politicians looking out for their own electoral advantage — what’s next, toddlers not wanting to share?
More intriguing is the fact that progressives’ hope for blocking this effort is a procedural mechanism they have deplored for the past four years as an existential threat to democracy: the filibuster. Republicans hold a comfortable majority in the 49-seat unicameral Nebraska legislature, and there seem to be over 25 votes in favor of switching to winner-take-all. But the existence of a filibuster in the Nebraska legislature means that proponents of that bill have to meet a higher threshold of 33 votes. As of this writing, they do not seem to have locked down that vote total. One of the leading holdouts has been Mike McDonnell, a blue-collar legislator who was driven from the Democratic Party earlier this year because of his social conservatism. McDonnell has long opposed winner-take-all and has proven willing in the past to withstand the slings and arrows of his own side. Earlier today, McDonnell reiterated his opposition to this change in the weeks before Election Day.
Suddenly, there’s silence from the chorus that denounced the filibuster as a “kill switch” for American democracy, an enabler of “minority rule,” and a tool of Jim Crow. Now serving the political interests of Democrats, the filibuster in the Nebraska legislature is simply taken as a bulwark against an “electoral vote heist” — rather than an affront to “our democracy.”
Perhaps this silence shouldn’t be too surprising. After all, eliminating the filibuster was a “nightmare scenario” for the democracy-in-danger crowd when Trump was in office, yet many in that faction swung hard against the filibuster once Democrats hit the trifecta of government control. “Saving our democracy requires checks on Republicans and eliminating checks on Democrats” is a convenient talking point for fundraising, foundation grants, and social media.
But gratifying factional passions is often at odds with analytic clarity. Whether state legislatures should have a filibuster or not is an open question (and likely depends on the state). However one comes down on that question, the argument for the filibuster in the U.S. Senate is even more compelling. The Senate is a national institution, and limitations on narrow partisan majorities in Congress help preserve the architecture of federalism. Too often in recent years, much of the American elite has ignored the wisdom of federalism and limits on factional power. The failure of statecraft in that deep sense has further poisoned our national debates.