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Opinion | A Leading Law Scholar Fears We’re Lurching Toward Secession

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Opinion | A Leading Law Scholar Fears We’re Lurching Toward Secession


Here’s how rickety our constitutional system has become: The fate of the 2024 election could hang on the integrity of a single Republican state senator in Nebraska.

To understand why requires getting a bit deep in the Electoral College weeds. Almost all states use a winner-take-all system to apportion their presidential electors, but Nebraska and Maine award some electors by congressional district. In 2020, Joe Biden won one of Nebraska’s five electoral votes, and Donald Trump won one elector from rural Maine. This year Kamala Harris’s clearest path to victory is to take the so-called blue wall states of Pennsylvania, Michigan and Wisconsin, plus one electoral vote in Nebraska.

One reason that both states have resisted partisan pressure to switch to winner-take-all is the assumption that if one did so, the other would as well, balancing out any Electoral College effect. But this year, Republicans waited until it was too late for Maine to change its rules before starting a push to change them in Nebraska. If they succeeded and Harris held the blue wall but lost the other swing states, there would be a tie in the Electoral College. For the first time in 200 years, the election would go to the House, where each state delegation would get one vote and Trump would almost certainly be installed as president.

So far, one man, State Senator Mike McDonnell, who defected from the Democratic Party this spring, is standing in the Republican Party’s way. We should all be grateful for his courage. But the pressure on him from his new party will be intense, and he can still change his mind in the coming weeks.

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Whether or not McDonnell remains steadfast, this is a preposterous way to run a purportedly democratic superpower. The Electoral College — created in part, as the scholar Akhil Reed Amar has shown, to protect slavery — has already given us two presidents in the 21st century who lost the popular vote, and it continues to warp our politics. It is one reason Erwin Chemerinsky, the dean of the U.C. Berkeley School of Law and an eminent legal scholar, has come to despair of the Constitution he’s devoted much of his life to. “I believe that if the problems with the Constitution are not fixed — and if the country stays on its current path — we are heading to serious efforts at secession,” he writes in his bracing new book, “No Democracy Lasts Forever: How the Constitution Threatens the United States.”

Chemerinsky’s description of the way our Constitution thwarts the popular will — including through the Electoral College, the growing small-state advantage in the Senate and the rogue Supreme Court — will be familiar to readers of books like last year’s “Tyranny of the Minority” by Steven Levitsky and Daniel Ziblatt. The surprising part of his argument is his call for a new constitutional convention, which can be triggered, under the Constitution’s Article V, by a vote of two-thirds of the states.

Many on the right have long dreamed of an Article V convention, hoping to pass things like a balanced-budget amendment. Chemerinsky wants to use the process to advance changes sought by progressives. It is imperative, he writes, “that Americans begin to think of drafting a new Constitution to create a more effective, more democratic government.” Without radical reforms, he fears, the country could come undone.

Chemerinsky arrived at his somewhat despairing view of our predicament with reluctance. “What makes it painful is the underlying pessimism or the underlying sense of crisis,” he told me. “I’m by nature an optimist.”

That optimism seems to drive his belief that a country as polarized as ours is still capable of sweeping positive change. “I want to believe that if a group of men and women came together and had to draft a Constitution that they knew would have to be ratified by the country, they would come up with a better document than we have now,” said Chemerinsky. “And if they failed, if it went off the rails, it wouldn’t get approved.”

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I lack his faith. My fear is that while our Constitution has become a kind of cage, it’s also the only thing holding our country’s hostile factions together. The paradox of our founding document is that it’s both an accelerant to authoritarianism and a bulwark against it. The Constitution is the reason that Trump could again become president in defiance of the wishes of the majority. But if that happens, the Constitution would be one of the few tools we have to restrain him. Given our furious divisions, I’m skeptical that we could agree on a new and better one.

But I agree with Chemerinsky that because of the deep structural flaws in our Constitution, the union is more fragile than many assume. And like him, I can easily imagine America getting to a place where the idea of breaking it up no longer seems unthinkable.

America could, of course, get lucky. For this election, McDonnell could continue to resist his party’s entreaties, or Harris could win enough Electoral College votes to make any chicanery in Nebraska moot. Eventually, Congress could enact reforms that lessen some of our system’s antidemocratic distortions. One law Chemerinsky suggests would mandate that all states allocate their electors proportionally, so that all voters, regardless of their states’ partisan leanings, have a role in choosing the president. And in time, America’s demography and its political coalitions could change in ways that might help our politics come unstuck. If Texas were to become a blue state, for example, conservatives might suddenly find themselves open to Electoral College reform.

But right now, we’re staring down yet another election in which Trump could win after losing the popular vote. Chances are he’ll have a Republican-controlled Senate, even if most people who go to the polls vote for Democrats. He’ll operate under the protection of a widely distrusted Supreme Court — the only one in any major democracy where justices have lifetime tenure — that has granted presidents broad impunity for crimes they commit in office. “The mistakes made in 1787 are haunting us in the 21st century,” writes Chemerinsky. The question is whether America is capable of fixing them before they destroy us.



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Nebraska

Rhule wants “complete and total overhaul” of special teams

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Rhule wants “complete and total overhaul” of special teams


NEW YORK — The good?

Nebraska won enough football games to qualify for a bowl game for the first time since 2016. Even more good? The Huskers beat Boston College 20-15 on Saturday in the Pinstripe Bowl at Yankee Stadium in New York to mark the program’s first bowl win since 2015.

Clearly, there is positive momentum at Nebraska.

Now, the bad.

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The bad was Nebraska’s poor special teams rearing its ugly head once again. Mistakes in the third phase of the game caused Nebraska to nearly lose its 20-2 lead late in the third quarter in stunning fashion.

First, BC blocked a John Hohl extra-point attempt after Nebraska’s second touchdown of the first half. The snap from Camden Witucki was fine, but holder Brian Buschini dropped the ball as Hohl was making his approach.

With the chaos in front of him, Hohl’s kick went low and was easily blocked by BC’s Max Tucker. Ashton McShane scooped it and scored 2 points from 87 yards.

Then in the fourth quarter, Buschini had a punt blocked after BC’s Victor Nelson split both Jason Maciejczak and Dylan Parrott, who were part of a three-man shield (Mason Goldman was the third member of the shield, but had his own Eagle to block).

And just like that, BC scored a touchdown one play later to make it a 20-15 Husker lead. The Eagles scored 13 points in under 2 minutes of game action.

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The collective gulp from Husker fans was heard everywhere.

“It’s no secret. To be where we want to be next year, we have to be the same defensively, probably a little better in some areas,” Matt Rhule said after the game. “We have to really improve on offense, and I think we’re all seeing at times signs of what it’s going to look like. And then special teams, we need a complete and total overhaul of that. We have to be better at that. I always put those things on my shoulders, we’ll get it done. But it has not been good enough this year.”

There was also a moment where Nebraska tried a fake field goal, where Buschini, the holder, took the snap and tried running for a touchdown on BC’s 8-yard line. The play didn’t come close to working.

“The fake field goal, probably should have just dropped back and thrown it again,” Rhule said. “But we had the numbers there and the kid just made a good play.”

Ed Foley’s special teams haven’t performed up to the standard he and his boss, Rhule, constantly talk about. Both the field goal and punting units have struggled with snaps throughout the season.

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Nebraska went to the transfer portal for help at long snapper and added New Hampshire’s Kevin Gallic.

“We’ve had snapping issues all year long. I think we’ve tried to already address that for next year,” Rhule said.

With Buschini playing his final season at Nebraska in 2024, the Huskers also added veteran transfer punter Jack McCallister, who started for Washington the past three seasons.

As Rhule always does, he tries to remember the positives, too.

In that regard, Rhule liked how the unit executed a fake punt pass vs. BC, where Buschini completed a pass to Isaac Gifford for a first down. That was Buschini’s second completion for a first down of the season.

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“The fake punt was kind of a big call. A gutsy call that they’ve worked and executed,” Rhule said.



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Key stats of the game in Nebraska's win over Boston College

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Key stats of the game in Nebraska's win over Boston College


Key stats of the game in Nebraska’s win over Boston College

NEW YORK — Nebraska held on and got the job done on Saturday.

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The Huskers traveled to New York City to play in the Bad Boy Mowers Pinstripe Bowl against Boston College and will fly home with a 20-15 win.

It wasn’t pretty — is it ever with this program? — as NU led 20-2 with three minutes left in the third quarter but allowed BC to score two touchdowns in the final 6:11 of the game.

NU ends its 2024 season with a record of 7-6 (3-6 in Big Ten). That’s the most wins since the 2016 team went 9-4. It’s also the first bowl victory for the Huskers since the 2015 team beat UCLA 37-29 in the Foster Farms Bowl.

Here are three key statistics that stood out from NU’s win over the Eagles.

A good showing in the red zone from Nebraska’s offense

One of the top stats that usually equals winning football involves making the most of your trips to the red zone. On Saturday, the Husker offense was good enough once it entered BC’s 20-yard line.

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NU finished the game by scoring points on three of its four red zone opportunities, and all of them were touchdowns. All three of NU’s scoring drives that entered the red area lasted at least seven plays, too, so the Huskers were going on some drives in Yankee Stadium.

The only red-zone appearance that didn’t end in a score was a fake field goal that had punter/holder Brian Buschini attempting to run the ball on a fourth-and-goal from the BC 8-yard line. That didn’t work as Buschini got 1 yard to seal a turnover on downs.

Nebraska turned the ball over twice, but John Butler’s defense put out the fires

NU’s offense turned the ball over twice in the game, both of which came in the first half thanks to a Dylan Raiola interception and an Emmett Johnson lost fumble.

Those could have been back-breaking mistakes, but they weren’t because defensive coordinator John Butler’s defense, which featured several young players getting opportunities, stood tall after each turnover.

The Huskers did not allow BC to score points off those turnovers. NU may have bent — the Huskers allowed BC to convert 5-of-10 third downs in the first half — but it never really broke until late in the game when the Eagles scored their first touchdown at the 6:11 mark of the fourth quarter.

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On a wet and slippery field, yes, there were missed tackles and sloppy play at times. But the Huskers flew around like a team who had fun in the city for a week before flipping a switch and winning a football game, just like Matt Rhule wanted.

If BC was going to win this game, it needed to run the ball — that didn’t happen

Nothing against BC quarterback Grayson James. He played as well as he could and made some good throws while being pressured by NU’s defense all day.

But if BC was going to win this game, it needed to have an effective run game. That didn’t happen — BC would have liked to have its first-team All-ACC right tackle Ozzy Trapilo, who opted out — as the Husker defense limited the Eagles’ rushing attack to just 47 yards overall and 40 in the first half. That rushing total rises to 64 yards if you take away the 17 sack yards NU’s defense had.

BC entered the game with a top-50 rush offense nationally at 176 yards per game, good for 46th in the country.

The defensive front that played for NU today — guys like Ty Robinson, Nash Hutmacher, Cam Lenhardt, Elijah Jeudy, Keona Davis, MJ Sherman, Willis McGahee and Co. — held up well against BC’s offensive line and tight ends and allowed the linebackers behind them, like Javin Wright, Vincent Shavers Jr. and John Bullock, to clean up, which they did.

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The Wright-Shavers-Bullock trio combined for 18 tackles, 3.5 tackles for loss and two sacks.

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Effort revived to preserve access to iconic rapids on scenic Niobrara River • Nebraska Examiner

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Effort revived to preserve access to iconic rapids on scenic Niobrara River • Nebraska Examiner


LINCOLN — An on-again, off-again effort to ensure public access to the Niobrara River is back on.

If the purchase of the Rocky Ford rapids area happens this time – it was blocked more than once a decade ago – it would maintain the public use of an important take-out point for those floating and kayaking the nationally designated scenic river.  

A National Park Service representative and the private owner of the Rocky Ford rapids separately confirmed that discussions are underway to have the federal agency purchase the 26-acre site around the rapids, which is the ending point for many float trips down the Niobrara and a popular spot for camping and picnicking in north-central Nebraska.

About 75,000 people each year visit the 76-mile-long, federally designated scenic stretch of the Niobrara River, making it one of the state’s most popular tourist attractions. Because Rocky Ford is in private hands, there’s always a worry that public access to the scenic spot will be shut off, or that access fees will become too expensive.

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“There is no better deck in the state of Nebraska,” said Rocky Ford owner Brad Arrowsmith of the view from a cabin on the property.

“That place is therapeutic,” he said.

Arrowsmith, a rancher from Mills, purchased Rocky Ford eight years ago after a canoe outfitter’s effort to sell the property to the Park Service, and later to the Niobrara Scenic River Council, both fell through. 

Members of the state’s congressional delegation, as well as local ranchers and representatives on the Niobrara Council, were among those who opposed federal ownership of the property.

In 2018, Arrowsmith said he purchased the rapids to retain local control and to avoid a new private owner from shutting off access to Rocky Ford. The river there has one of the state’s few Class III rapids – rapids with high waves and rocks that require an experienced paddler.

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But when the $2.5 million sale to the Niobrara Council fell through, Arrowsmith retained ownership and a canoe outfitting business continued. He eventually took over the business.

But the semi-retired rancher, 58, said he’s more interested now in enjoying the “retired” side of his life and ditching the “semi” portion.

“I never bought it to get into the outfitting business in the first place,” Arrowsmith said. “My hair’s a little whiter than yours. I’m tired.”

So talks began a few months ago to sell the property to the Park Service.

Susan Cook, superintendent of the Niobrara National Scenic River office in Valentine, confirmed that she’s discussed a purchase with Arrowsmith.

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“We’re just starting to look at it,” Cook said.

She declined to say whether the Park Service had money allocated for the purchase – as it did a decade ago – or where the money to purchase the site could come from.

Arrowsmith said that he’d also offered, again about a year ago, to sell Rocky Ford to the Niobrara Council, but was again rebuffed.

He said he’s also been approached by a private party to purchase the site and continue the outfitting business.

An international group interested in preserving “quiet” places has honored Nebraska’s Niobrara River. (Courtesy of Niobrara Council)

“At the end of the day I’d love to keep it in local hands … but I’m not sure they can come up with the change to do it,” he said.

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Just how quickly, or how long, a purchase might take is unclear. Arrowsmith said he has made improvements to the property that make Rocky Ford more attractive for a buyer.  

“It’s not the old ratty wood walkway up to the office,” he said, adding that he also replaced a “monstrosity of a retaining wall” on the land.

 

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