Explore the reasons why two states tally their delegates uniquely in presidential contests

On election night in November, not every state will delegate their electors the same way.

Rather than use the “winner-take-all” method that 48 other states use, Maine and Nebraska delegate their electoral votes in a different way. The two states use the congressional district method.

Under the congressional district method, states allocate two electoral votes to the state’s popular vote winner. Each delegate after that is awarded to the winner in each congressional district. There are two congressional districts in Maine and three in Nebraska.

“Every other state has opted to use the same method, which the winner of the popular vote in their states gets all of the electoral votes from the state. This isn’t required in the Constitution. In fact, states can use whatever method they want,” Barry Burden, a professor at the University of Wisconsin-Madison and founding director of the Elections Research Center, told the Washington Examiner.

“From about the 1830s on, most states have decided to use the popular vote and winner take all, so Maine and Nebraska are unusual in that they allocate their electors in a split fashion. It’s possible for more than one candidate to win electors,” Burden said.

Maine’s long history with the method

In 1972, Maine was the first state to enact such a rule. For 44 years, the state voted uniformly. During the 2016 election, Maine’s 2nd Congressional District, which covers the majority of the state outside of Portland and Augusta, split from the rest of the state and voted in favor of former President Donald Trump.

The state was reliably Democratic as a whole until former President Donald Trump won the 2nd District. Trump won the district again in 2020 despite losing the state’s popular vote.

Maine’s history with splitting the electoral vote, however, came much earlier in 1820 when the Pine Tree state seceded from Massachusetts. In 1828, the state switched back to the common “winner-take-all” method. A century and a half later, it reverted to the congressional district method.

The switch came about over concerns that Maine could award their electoral votes to someone who only won 34% of the vote. Democratic state Rep. Glenn Starbird Jr. proposed a return to the congressional district method. Legislators approved the measure under “the assumption that other states would follow suit.”

Only one did: Nebraska, two decades later.

Nebraska’s recent push for winner take all

Since 1992, Nebraska has followed Maine’s footsteps and enacted the same electoral method. Their split came much quicker in 2008 when the district representing Omaha and its suburbs voted for former President Barack Obama.

Now, a recent push from Trump and Gov. Jim Pillen (R-NE) looks back to using the winner-take-all method, just six months out from the election.

“States are definitely allowed to change their rules for allocating electors as long as they do before the election before any voting has taken place,” Burden said. “It does a disservice to voters and campaigns to be tinkering with the rules as we get closer to Election Day.”

If this happened, it would likely give back one electoral vote from Nebraska to the Republicans. Since Obama’s victory in 2008, the district has been a swing district. Trump won Nebraska’s 2nd District in 2016, but it flipped blue for President Joe Biden in 2020.

Pillen is floating an idea of holding a special legislative session to change how the state casts its electoral votes.

“I look forward to partnering with legislative leaders to [move] it forward in a special session, when there is sufficient support in the Legislature to pass it,” Pillen posted on X. “I will sign [winner take all] into law the moment the Legislature gets it to my desk.”

“It does seem problematic to be tinkering with something so important as we get closer to Election Day,” Burden said.

Although it’s unlikely the election could come down to a single electoral vote, it’s possible. It’s almost happened before in the 2000 election when Florida held up the election results for nearly a month.

“It would have been possible for Gore and Bush to have split the Electoral College 269 to 269. In which case it would have been thrown into the House,” Burden said.

The 2024 general election is set to be a close race, and it’s possible for the election to come down to a single electoral vote. Election math points to a scenario in which Nebraska’s 2nd District could really sway the election.

“Some people have pointed out this year that if Biden were to hold on to Wisconsin, Michigan, Pennsylvania, those three blue wall states, but he loses the other two states that flipped last time, Georgia and Arizona, there could be a 269-269 tie depending on what happens with that one stray elector in Nebraska,” Burden said.

“So it’s not crazy with just, as you know, a small number of states that are really in play you can sort of run through some scenarios and a few of them, make it a tie vote,” Burden said.

The case for winner take all

All 48 other states currently use the winner-take-all method, which gives all of their electoral votes to the same candidate who wins the state’s popular vote. Some states have explored other methods which have largely gone nowhere, but other states are likely pleased to keep business as usual. Burden said most states keep things the way they are because of “inertia.”

“States have been doing this method for the most part for a long time, and it’s not perfect. People are unhappy with the system at times, but they would also be unhappy with other ideas that were proposed,” Burden said. “States are often just sort of stuck where they are.”

Some states like California, New York, or Texas, may be reluctant to give a fraction of their large number of electoral votes to a different party.

“Democrats in California, for example, are pretty happy to give all of their electoral votes to the Democratic candidate,” Burden said. “I think a lot of Democrats here would be reluctant to change to a different system.”

He said Wisconsin, which is one of seven highly contested swing states this year, explored a change to the winner-take-all system. Wisconsin Republicans proposed a change that would mirror Maine and Nebraska’s method. It didn’t go very far however, due to the fact Wisconsin at the time was considered to be one of the most gerrymandered places in the country.

“It looked to Democrats like it was a political ploy because of the eight congressional districts in Wisconsin, Republicans currently hold six,” Burden said. “So [Republicans] would have gotten three-quarters of the districts, even though it’s a purple state, plus they would have gotten the two statewide at large.”

Maine and Nebraska’s congressional district method reminds the country that they don’t have to use the winner-take-all method.

“Having Maine and Nebraska out there as examples of alternative ways of doing this is a healthy part of the discussion about the Electoral College,” Burden said. “Because so many states have not changed the rules for many decades, that seeing these two options out there reminds us it’s possible for states to use different methods.”

Burden, however, warned that every state adopting this method could be a slippery slope into extreme gerrymandering if Presidential elections could be decided by congressional districts.

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“It would put a lot of pressure on the people who draw district lines to really rig the system in favor of their party,” Burden said. “Not only do those lines affect the makeup of Congress, they would have now effect on who won the White House.”

“There’d be a lot of pressure to say, even in states that right now are not battleground states for every district to be configured in a way to advantage the party that’s in charge of drawing the lines there,” Burden said. “So I think it would put gerrymandering on steroids; That would be a bad thing.”