Nebraska is one of just two states that does NOT follow a winner-take-all rule with reference to the allocation of its electoral votes in a Presidential contest. [The other is Maine.] Part of Nebraska's allocation of electors works by congressional district. [It gives out two of its five votes on a statewide basis and the other three by virtue of the presidential votes of its three congressional districts.] The result of this is that Nebraska sometimes votes in the electoral college four to the Republican candidate, one to the Democratic, because of the blue political tint of the district that includes the city of Omaha. Now, there is one plausible breakdown of the state-by-state results this November that has Biden winning by 270 to 268. THAT scenario involves Biden winning that one vote in otherwise deep red Nebraska. If the Trump forces can change the law in Nebraska, as they are now endeavoring to do, then that scenario yield a 269 to 269 result....
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It now appears that the electoral college may be effectively undermined without the need for invoking the cumbersome constitutional amendment process. The process is underway, and the late term decision this year by the US Supreme Court helped. After all, what would happen if each state bound its electors to vote for whichever candidate won the largest number of popular votes? SCOTUS' decision suggests (although this cannot be described as the res judicata) that the states can do pretty much whatever they want in this respect. If every state does this, then every subsequent electoral college outcome will be the same: a unanimous ratification of the popular vote. I'm not sure how long the institution will survive as a purely ceremonial matter once this outcome becomes obvious, but it hardly matters. There are surely people who will consider it an honor to be one of those casting these pre-ordained ballots, the constitutional letter will be observed, and the actual popular ...
This is the third part in our series of blog posts about the latest term of the Supreme Court. We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it? The Appointments Clause I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the Un...