For all the debates over our intractable political divisions and razor-thin vote margins, American presidential elections of late have not been particularly close. Since 2000, the average popular-vote margin is more than 4.6 million. That’s a lot of votes. The appearance that the outcomes are closer is an artifact of the Electoral College, specifically the winner-take-all method of awarding electors, which significantly magnifies the influence of a few arbitrary states.
Swing states, as we call them, are why the presidency has been decided by fewer than 290,000 votes, on average, since 2000. In 2016 and 2020, it was even tighter: A switch of just tens of thousands of votes in a handful of swing states would have reversed the outcomes.
That is why we are forced to care so much about small shifts in votes or in state laws, like the one debated in recent weeks in Nebraska. Since 1992, the deep red state has awarded most of its electors by congressional district, and the Democratic nominee has twice won the 2nd Congressional District, which includes the state’s largest city, Omaha. State and national Republicans, including Donald Trump, have been pushing hard to switch back to the winner-take-all system, which would deny Vice President Kamala Harris the chance to pick up that elector.
They nearly succeeded until Mike McDonnell, a Republican state senator, announced this week that he would not join his colleagues, killing the switch, at least for now.
“Elections should be an opportunity for all voters to be heard, no matter who they are, where they live or what party they support,” he said in a statement. It’s a critically important principle, and McDonnell deserves credit for putting it above his party’s wishes.
Yet it would be a mistake to think of what just happened in Nebraska as being in the rearview mirror; rather, as long as we continue to choose our president through the mechanism of the Electoral College, it is a harbinger.
That’s because the country is littered with pivot points like Nebraska. In every election, it takes a shift of only a few hundred or a few thousand votes in one or two states — or, as in the case of Nebraska, a single lawmaker in a single state — to alter the outcome in a country of 330 million people.
Indeed, the election may yet turn on McDonnell’s decision: If Harris prevails in the states where she currently leads in many polls, she would have 269 electoral votes, one shy of what she needs to secure the presidency. Adding the elector from Nebraska’s 2nd Congressional District — where polling also shows her in the lead — would do the job.
You don’t have to be a genius to figure out that these pivot points are the whole ballgame. Both parties know it, but Republicans, especially, have been engaged in copious litigation in swing states, from attempted mass voter purges in Arizona and North Carolina to changes in ballot-counting rules in Georgia and Pennsylvania. If they can succeed in reshaping the electorate or altering the method of vote tabulation in any of those states, they have a better chance of hitting a jackpot of electoral votes.
Some of these efforts appear illegal on their face, like the Georgia Election Board’s order to hand-count ballots, while others, like the attempted voter purges, are often frivolous, based on inaccurate or misused data.
Either way, they all end up in the courts. Trump figured this out in 2020, when he and his allies brought dozens of legal challenges to vote results in key swing states while the American people sat and waited for a resolution. He’s already made clear that he will pursue the same strategy in 2024, and with extremely narrow statewide outcomes, why wouldn’t he? The Trump side lost virtually every case in 2020, but he knows more litigation equals more delay and confusion. He’s also confident in the backstop of a Supreme Court that contains three of his appointees and has ruled repeatedly in his favor.
Even before Trump entered the scene, however, election litigation was accelerating considerably, and “it’s no mystery as to why,” according to Rick Hasen, an election-law scholar at UCLA who found that the rate of litigation has nearly tripled since 2000.
“People realize that in a close election, the rules of the game matter. That spurs litigation,” Hasen told me. The most litigation yet was in 2020, due in part to rule changes brought on by the pandemic and in part because Trump ran to the courts to litigate every allegation of fraud, no matter how weak (and they were all weak, to go by their success rate in court).
Hasen said the pace of litigation in 2024 remains high, although the quality of the claims so far this year is lower. For instance, he pointed to an argument in the 5th Circuit Court of Appeals on Tuesday, challenging the counting of mail-in ballots received after Election Day, even if they were postmarked on or before Election Day.
The problem isn’t the litigating itself, Hasen said, so much as the abuse and partisan nature of it. “On the one hand, litigation is essential to protect the integrity of the voting process and of voting rights,” he said. “Courts need to say you can’t steal an election by ignoring the will of the people. On the other hand, a whole lot of spurious litigation will make people lose confidence in the election process and think there are more problems than there actually are.”
Still, it’s hard to blame the players in this absurd game. As a matter of legal and electoral strategy, it makes complete sense for them to target the places that will provide the biggest payoff. But deciding a national election on the basis of a few votes or legal rulings in a few arbitrary jurisdictions is deeply destructive to the health of a representative democracy.
In a healthy system, one based on majority rule, the candidate with the most votes wins, and voters don’t struggle to understand how the process works. Otherwise, Trump wouldn’t have complained, as he did in an election night tweet in 2012 when he thought Mitt Romney would win the popular vote but lose anyway, “The electoral college is a disaster for a democracy.”
The popular-vote outcome is also clear much sooner than the final results in the states — usually on election night. Take 2000: There were painfully protracted legal disputes over Florida’s recount that played out for more than a month, before the Supreme Court shut it down in mid-December. Meanwhile, Al Gore’s popular-vote lead, which was more than half a million by the end, was evident soon after polls closed. All the litigation in the world would not have changed that. It’s safe to assume that whatever legal disputes arise in the aftermath of the 2024 election will not be about who won more popular votes.
“A sound election system should possess a high level of resistance to the impact of minor influences,” John Koza, the inventor of the National Popular Vote interstate compact, wrote in the latest edition of his book on the subject. Instead, the states’ winner-take-all approach makes the whole election “extremely sensitive to fraud, foreign interference and random events.”
“You can’t uninvent it; it’s like the atomic bomb,” Koza told me. “Now everyone knows the way to win the White House is to litigate chunks of votes where you can disqualify the opposition’s votes in a given state. We have a system that has transferred the choice of president into the courts and ultimately the Supreme Court. So there’s a global problem, which is that because of what Trump did in 2020, the system is now inherently destabilized.”
Destabilization is the point for Trump and his most devoted followers. It’s a disaster for the rest of us.
This article originally appeared in The New York Times.
