WHAT’S REALLY GOING ON HERE?

THE BIG 2024 COLLEGE STORY ISN'T PROTESTS, ITS THE NEW ELECTORAL COLLEGE SET UP. THE BIDEN “BLUE WALL” IN THREE NORTHERN STATES MUST NOW STRETCH TO OMAHA TO SECURE A WIN -- AND AVOID A TIE!

One especially distrusted assertion in the trading markets of Wall Street (as well as in sports betting) is “this time it’s different” ― often with good reason. Maybe the same skepticism should apply to presidential politics in this election year, as we are experiencing a literal repeat performance of the major party candidacies from 2020 (with a slightly different cast of potentially troublesome also-rans). The presence of RFK Jr. in the latter mix as well as the inexorable aging of both major candidate and the criminal conviction of one of them, however, may be distracting most political commentators from one material change in political reality in 2024 that could be most important to the outcome of what they generally predict will be a very close race.

Biden’s Blue Wall of wins in all the so-called “swing” or “battleground” northern states of Pennsylvania, Michigan and Wisconsin helped guarantee his victory in 2020 over the incumbent Donald Trump by 306 to 232 in the all-important official Electoral College vote count, which pro-Trump protestors tried to disrupt Congress from certifying on January 6, 2021. As we will recall: “During the electoral vote count, objections were filed with respect to the Arizona and Pennsylvania electoral votes, but neither House sustained the objection, so all votes were counted. Due to violent unrest in and around the Capitol, the electoral results were not certified until 3:44 a.m., the morning of January 7, 2021.” https://www.archives.gov/electoral-college/2020

Biden won more than enough electoral votes to prevail in 2020 besides the Blue Wall. He also turned Arizona, Nevada and Georgia in his favor, adding an additional 33 electoral votes to his majority. https://www.cnn.com/election/2020/results/president  In 2016 Hillary Clinton lost all three Blue Wall states, and Donald Trump also flipped Iowa, Ohio and Florida which went for President Obama in 2012, on the way to winning states holding 306 electoral votes compared to Clinton 232. That would have been the same margin Biden achieved in 2020 over Trump, but seven “rogue” Electors cast ballots contrary to their state voters’ decisions, yielding  final 2016 electoral vote totals of 304 for Trump and 227 for Clinton. All other things being equal, if Biden like Clinton in 2016 had lost all the Blue Wall contests in 2020, President Donald Trump would be finishing his second and final term now. Bhttps://www.nytimes.com/elections/2016/results/president

Nothing new and different to see between 2016 and 2020, then, in terms of Electoral College calculations. It recently has been almost essential, and possibly decisive, for Democratic candidates to win the Electoral College votes of all the Blue Wall states to win the presidency. In 2020, Biden lost the three states that Trump moved into the GOP column in 2016 (Iowa, Ohio and Florida), but as noted above he flipped two others that Clinton lost in 2016 (Arizona and Georgia) while keeping Nevada, which Clinton had won. In the early 2024 state-level polling of registered voters six months before election day, however, Biden is consistently trailing Trump by margins that suggest a diminished chance of success for him in those three more southerly states on November 5 compared to last time around. In the same polls in the Blue Wall states, though, Biden is polling closer, but still generally trailing Trump. https://www.newsweek.com/donald-trump-poised-beat-joe-biden-6-key-battleground-states-poll-1904688

Biden undoubtably has much campaign catch-up work to do in the next few months. But if he can somehow hold the Blue Wall, he should be able to sustain at least a bare majority (far narrower than in 2020, but just enough) to prevail in the Electoral College vote count even without winning Arizona, Nevada or Georgia again, right?

Actually, wrong.

Between 2016 and 2020, there were no changes in the state-by-state vote allocations in the Electoral College because there was no intervening Census requiring a re-allocation of state delegation totals in the House of Representatives to reflect population changes.  But in 2020 there was a Census, resulting in reallocations in Congressional seats for 13 states (25%), including the four with the most electoral votes and two large swing  states from 2020.  In turn, these changes triggered similar up-or-down adjustments to the electoral vote totals for those states applicable to the 2024 Electoral College makeup. Under the rules, each state’s Electoral College vote total is the sum of its membership in the House and Senate, with the total Electoral College vote fixed at 538 unless and until the Senate or House is expanded by law. https://ballotpedia.org/Electoral_College_in_the_2024_presidential_election  (This structure  is a “bit” like the game plan to ultimately cap  the amount of Crypto currency available to the market. Who knew the tech money-math geeks borrowed their “revolutionary” asset class concept  from the Framers of our Constitution?)

One state’s gain in membership total, therefore, must be another state’s loss, in both Congress and the Electoral College.  The aggregate of the 13 state-level changes in Congressional representation post-Census would produce a swing of six electoral votes as between Biden and Trump based on their 2020 popular vote results in those states.   Among the 13, the six states won by Trump in 2020, only two (Ohio and West Virginia) lost one Congressional seat and electoral vote each, while three others (Florida, Montana and North Carolina) each gained one seat and vote, and Texas gained two. If Trump wins these six states again in 2024, he will gain a net of three electoral votes automatically versus his 2020 total. Whereas for the seven states with electoral vote changes that Biden won in 2020, only Colorado and Oregon gained one Congressional seat and electoral vote each, while five others (California, Illinois, Massachusetts, Michigan, New York and Pennsylvania) each lost one.  With repeat wins by Biden in 2024, he will therefore be down by a net of three electoral votes from these states compared to his 2020 total. 

The total swing of six electoral votes would seem to be much ado about little when compared to Biden’s 74 vote margin in his 2020 Electoral College win of 306 to 232. If there is no other change in which candidate wins each state this year compared with 2020, Biden would still have a 68 vote Electoral College margin of victory – 303 to 235.  But let’s also assume for the moment that recent polling is correct and Biden in November loses all three “South-by-Southwest” states he won in 2020: Arizona’s 11 Electoral votes, Nevada’s 6 and Georgia’s16.,a nd also wins the wholeBlue Wall.Trump’s margin the those northern swing states tends to be smaller and Biden even has a small lead in Michigan in some polls. https://www.bloomberg.com/news/articles/2024-04-24/biden-trails-trump-in-6-of-7-key-states-poll-shows-election-2024

None of the three southern battleground states’ Congressional delegations or electoral vote allocations were changed by the 2020 Census results. If Biden does lose them in November, that means there would be 33 fewer votes this in the Electoral College count for Biden (assuming he keeps all the other states he won in 2020, and 33 more for Trump,. That changes our 2024 hypothetical outcome to 270 electoral votes (the bare minimum majority) for Biden and 268 for Trump.  Even with Michigan and Pennsylvania down one electoral vote each, the Democrats’ northern states fortress of those two states plus Wisconsin would again prevail, allowing Biden to squeak into a second term with the barest majority on the strength of his Blue Wall, while Trump languishes behind by just two votes at 268, right?  

Not necessarily.

In addition to the six swing states from 2020, there is also one battleground Congressional District that has its own electoral vote allocation according to the laws of its home State: Nebraska’s Second District. “NE 2” for shorthand includes that State’s largest city, Omaha, with a population of nearly half a million ― enough to “swing” NE 2, but not the entire State. Maine and Nebraska are the only two states to employ the option of allocating part of their electoral votes on other than a “winner-take-all” basis. Here’s how the National Archives described their arrangements and their effect on the official 2020 results:

 “For the first time since adopting their respective systems, both Maine and Nebraska split their electoral votes: 

• Maine distributes its electoral votes proportionally, with two at-large electors representing the statewide winning presidential and vice presidential candidates and one elector each representing the winners from its two Congressional districts. For only the second time since adopting this system, Maine's four electoral votes were split between the two major party tickets.
   

• Nebraska distributes its electoral votes proportionally, with two at-large electors representing the statewide winning presidential and vice presidential candidates and one elector each representing the winners from its three Congressional districts. For only the second time since adopting this system, Nebraska's five electoral votes were split between the two major party tickets.”  https://www.archives.gov/electoral-college/2020

The Nebraska Second District has become a true battleground in the last four presidential elections― unlike Maine's rural 1st District, which is solidly GOP. NE 2 went to Obama in 2008, Romney in 2012, Trump in 2016 and Biden in 2020. Trump and Biden have each won it once. NE 2 was a small part of Biden’s win 2020, but it could be absolutely vital for him in in 2024 with the changes in the Electoral Collge vote allocations. If Biden loses the “Omaha” District in 2024, his electoral vote count, even with a Blue Wall sweep, could then fall in our hypothetical to 269, and Trump’s would rise to the same number, The result: a momentous Electoral College tie, partially resulting from a what could be a very small and  contested popular vote spread in one midwestern Congressional District. Recount lawyers will have their bags packed for an early Nebraska winter (much unlike Florida in 2000).  

Remember how Tim Russert on election night in 2000 kept asserting how "Florida, Florida, Florida" would settle the election result, and the same for "Ohio, Ohio, Ohio" in 2004. And Fox News had its own way of making 2020 all about Arizona ― unnecessarily, as it turned out ― for a good while. This time around, cable TV news anchors may be calling out "Omaha, Omaha, Omaha." Paging Peyton Manning:  some enterprising network should hire him for election night live commentary, just as he provides on Monday Night Football. Manning used a sharp “Omaha” shoutout as a signal to his teammates of a possible post-huddle play change before he started the action. If the Democrats are not going to change players for the 2024 presidential race, they at least need to assure that their playbook treats the Omaha District as a “must win” in for 2024. It most certainly is in Trump’s game plan.  

Biden will have difficulty holding the Second District. Nebraska is a "right(first)/center" state and Omaha may be more centrist, but not by much. But Nebraska voting patterns are as influenced by Evangelical forces as in its neighbor Iowa. The Second District GOP Representative Don Bacon is not a Trump cultist and probably will be re-elected. The economy of Nebraska is better than most states, but Omaha has a crime problem. The Nebraska governor, at Trump’s urging, has been trying to get the State’s unique one-House legislature to change its electoral vote allocation to winner-take-all, but so far hasn't garnered the votes to jam that switch through in a summer special session. If he does, Maine is looking to do the reciprocal and Trump could then lose an otherwise sure vote there, which would give Biden a route back to 270 and avoid an unprecedented 269-269 tie.

“If red-led Nebraska holds a special session this summer and decides to award its five Electoral College votes to the statewide winner of the presidential vote, then blue-led Maine will match it, canceling any advantage for former President Donald Trump.

“Maine House Majority Leader Maureen Terry issued a statement Friday saying that local voters ‘value their independence, but they also value fairness and playing by the rules.’ She said Maine would not let others game the system.

“If Nebraska’s Republican governor and Republican-controlled Legislature were to change their electoral system this late in the cycle in order to unfairly award Donald Trump an additional electoral vote, I think the Maine Legislature would be compelled to act,” she said in a statement she confirmed to the Examiner.” https://nebraskaexaminer.com/2024/04/26/maine-draws-a-line-in-the-sandhills-will-match-nebraska-on-winner-take-all/

What happens next if an Electoral College tie is the official 2024 outcome? According to Article XII of the Constitution, if no candidate has achieved the 270-vote electoral majority at the time of Congressional certification (the infamous “January 6, 2021” Joint Session), the choice of the next president in January 2025 would shift “immediately” to the House of Representatives from among “not exceeding three” electoral vote recipients (so RFK Jr. could conceivably be in the mix). In the House, however, the votes must be taken “by states, the representatives from each state having one vote.” This means the selection could come down simply to which Party holds a majority of representatives in a majority of the states.

In the current Congress, the GOP holds such a majority in 26 states and the Democrats only 21, while three states’ delegations are evenly split (Michigan, Minnesota and Pennsylvania). If the same numbers were to hold in the new 119^th Congress, the GOP majority of states in the House could quickly elect Donald Trump as the 47th President of the United States in the event of an Electoral College tie.

https://www.govinfo.gov/content/pkg/CDIR-2022-10-26/pdf/CDIR-2022-10-26-STATEDELEGATIONS.pdf

There is a Constitutional anomaly at work in the case of such a House vote to decide the next presidency. The District of Columbia was granted electoral votes equal to the lowest number apportioned to any actual state (three) as “if it were a State” by the Twenty-Third Amendment in 1961. The District’s  elected “Delegate” to the House of Representatives (just like those of the U.S. offshore territories like Guam and Puerto Rico), however, is not a voting member of the House, and thus  apparently cannot cast a “state” vote under the terms of the Twelfth Amendment cited above.

“The District is home to more than 712,000 people. Its citizens pay federal income tax and have at least some representation in the Electoral College thanks to the 23^rd Amendment of the U.S. Constitution, which granted D.C. the same number of electoral votes as the least populous state; however, the population of D.C. is greater than two states — Vermont and Wyoming. Like each of the territories, Washington D.C has a non-voting delegate in the House of Representatives and does not have Senators.” https://www.rockthevote.org/explainers/washington-d-c-puerto-rico-and-the-u-s-territories/

Thus, for some purposes D.C. is treated and governed just like a “state” under Amendment XII in terms of assembling the Electoral College and conducting and counting electoral votes, but not for the purposes of resolving a tie in the College by the House of Representatives. Delegate Eleanor Holmes Norton will be heard from if such an occasion arises!  https://www.govinfo.gov/content/pkg/CDIR-2022-10-26/pdf/CDIR-2022-10-26-STATEDELEGATIONS.pdf

It would seem that the best chance for Democrats to flip at least one GOP majority state in the new Congress at least to a tie would be in Wisconsin, currently divided five GOP Representatives to three Democrats. A tie or even an outright shift to the Democrats in that state, with the three states now with tied Party representation at least remaining so, the Democrat states could possibly deny the GOP a voting majority of 26 in any required House vote to decide the presidency. In effect, that outcome could even produce a presidential election tie in the House, too.

Section 3 of the Twentieth Amendment provides that “if a President shall not have been chosen before the time fixed for the beginning of his term, or failed to qualify,” then the  Vice President-elect selected by the Senate under the Twelfth Amendment procedures (with all Senators voting in their individual capacity) would become Acting President “until a President shall have qualified.” 

There is also a major unanswered Constitutional question under that scenario. The new Senate in 2025 could wind up in a 50-50 tie between the two Parties after (including the remaining Independents who caucus with the Democrats). Under Article I, Section 3, paragraph 4, Vice President Kamala Harris continues to serve until January 20, 2025, as “President of the Senate, but shall have no vote, unless they be equally divided.” The Twelfth Amendment regarding the Senate vote to choose a Vice President when there is no candidate with a majority in the Electoral College count, however, provides that “a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” (Emphasis added.) Harris is not a “Senator.” Does this later Constitutional provision bar her from breaking a tie among the Senators in such a special election case? The Democratic argument that no one interested person (such as Vice President Pence on January 6, 2021) should be able to singlehandedly decide the results of a presidential election would come back to haunt them if this unprecedented Constitutional issue were to arise in early 2025.

In the event there is neither elected and qualified president or vice president by Inauguration Day 2025, the Presidential Succession Act, as amended, provides that the Speaker of the House would become Acting President until the executive branch vacancy is filled. The House Speakership, however, would in turn depend on which Party achieved a majority of elected Representatives in the new Congress taking office on January 3, 2025. Even that process, as we know from the record of the current Congress, can get out of hand even for the majority Party. 

The Party winning a majority of all seats in the House in the 2024 November election could also have a strong partisan interest in preventing any majority of 26 or more state delegations still controlled by the other Party from choosing a president under the Twelfth Amendment, if that process  made necessary by a tie in the Electoral College. Debate could go on for a quite a while if neither Party controls 26 state delegations. We can only be grateful that at least for the roughly eleven weeks between November 5, 2024, and January 20, 2025, the federal government executive power and machinery will remain in the care of serious people.   

All things considered, it seems the best winning strategy for the Democrats will be to concentrate their most potent campaign efforts on behalf of the Biden/Harris ticket on winning a 2024 version of the Blue Wal that includes the Omaha Congressional District, as well as winning as many of the states as possible in their electoral vote column from 2020. The MAGA team is working meanwhile to add Minnesota, New Jersey and Virginia to the ranks of battleground states this year. There’s no better way to prevent an Electoral College than a landslide. A Biden/ Harris hold of the Blue Wall plus any of Arizona, Nevada, Georgia or even a win in the potential new battleground state of North Carolina would also likely avoid the potential for a “Cornhusker Setback” in NE 2, and the truly awful potential of a tied Electoral College.

Otherwise, RFK Jr. should consider moving to Omaha for the next six months, asking Warren Buffett to be his newest unpaid strategic advisor, and putting all his chips on trying to win the Second District’s one, potentially golden, electoral vote. He could then bargain with Biden for the one vote the current President may need to get to a 270-vote majority in the Electoral College, and/or with Trump for the one vote the former President may need to force a tie in the College and shift the election to the House, where he would most probably win outright. Perhaps the Irishman in Biden would be amused by the intrusion of Murphy’s Law into the 2024 presidential election, but it’s doubtful. For Trump, 2024 may be an election year  where the outcome for him is either the White House or what the 1930’s gangster movies called the “Big House.”