There are a lot of moving parts in the vote-counting, but at this writing, it still looks eminently plausible that Joe Biden could win the presidency by the narrowest 270-268 path in the Electoral College, if he wins Wisconsin and Michigan and holds onto his lead in Arizona, while Donald Trump wins Pennsylvania and holds onto his leads in Georgia, North Carolina, and Maine’s Second District:
If that happens, the election will have turned on Nebraska’s Second District, which Biden appears to have won. Nebraska and Maine are the only two states that do not award all their electoral votes to the statewide winner on a winner-take-all basis, instead awarding one electoral vote to the winner of each congressional district, and two to the statewide winner. This has yet to play a decisive role in an election, although it gave an extra electoral vote to Barack Obama in red Nebraska in 2008 and to Trump in blue Maine in 2016. The system is constitutional, as the Supreme Court held in 1892 in McPherson v. Blacker when Democrats adopted it in Michigan in order to help Grover Cleveland win back the White House. Something similar was also done in Maryland in the decade and a half after McPherson. But it will probably produce an inevitable partisan Republican backlash in Nebraska if it is seen to cost Trump the election. In a 269-269 tie, the election would be decided by the House, and because the House votes by state (each state voting once by majority of its delegation), Republicans would win that vote despite the overall Democrat majority in the chamber. Trump thus loses an elector in a state he carried by 20 points, in which Ben Sasse was re-elected to the Senate by 41.
These were the rules of the game under which the election was contested, so there is nothing unfair about it, and it seems likely to be offset by Trump winning a vote the same way in Maine. Trump himself played by those rules, holding a big rally at the airport in Omaha a week ago, although this produced some bad press when a few hundred of the 20,000-plus attendees were stranded waiting for buses home. Trump lost Nebraska-2 despite its Republican congressman, Don Bacon, being re-elected. The system is, however, a bad idea out of step with the American presidential tradition, and one that both states should consider scrapping going forward, and which other states should not imitate (Pennsylvania and Michigan Republicans have flirted with the notion in the past in order to crack the so-called “Blue Wall” prior to 2016). Yes, it draws presidential attention to states that would otherwise be safe, but one of the benefits of the American system of elections is that the president, the Senate, and the House are all elected in different ways, thus producing united government only when there is a strong, durable majority: Senators are elected statewide without regard to state size and in staggered elections, not all at once; the House is elected by districts, below the state level but often carefully gerrymandered; the president is elected statewide but with larger states getting a larger say, thus making his electorate a sort of halfway between the House and Senate electorates.
Gerrymandering is a mischievous practice, but a longstanding one as old as the House itself. Traditionally, the limit on gerrymandering’s power is that it gets you a leg up in only one of the three elected branches. Allowing the drawing of district lines to affect the presidency, even in a way that does not obviously benefit either party on a regular basis, is unwise.