Democrats' midterm gains could sideline Electoral College by 2028
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Democrats' sweeping statehouse gains Tuesday have opened a path to effectively replacing the Electoral College with a national popular vote in time for the 2028 presidential election — without needing to amend the Constitution.
Why it matters: The results could give Democrats the legislative power to fundamentally change how America picks its president, potentially ending the possibility of winning the White House while losing the national popular vote.
Driving the news: Democrats have won control of the governorship and both legislative chambers in Pennsylvania, Michigan, Arizona, Wisconsin and Nevada, enough to push an agreement called the National Popular Vote Interstate Compact beyond the 270-vote threshold required to take effect.
- The compact has been enacted by 18 states and Washington, D.C. since launching in 2006, representing 222 electoral votes so far.
- The agreement only kicks in when participating states collectively control at least 270 electoral votes. The five new Democratic trifectas could bring the total to 283.
How it works: Americans don't directly elect the president. Instead, they actually cast ballots to choose electors, whose votes determine the winner every four years.
- Nearly every state awards all its electoral votes to the statewide winner. Maine and Nebraska also award electors based on congressional district results.
- But the Constitution explicitly gives states power to appoint electors "in such Manner as the Legislature thereof may direct."
- Under the compact, participating states would instead award their electoral votes to the national popular-vote winner once the agreement reaches 270 electoral votes.
Yes, but: The five states would still need to enact the compact, and it's not clear if it will be a priority for the new Democratic states.
- The Electoral College would formally remain in place, and the compact could face constitutional challenges, including over whether congressional approval is required.
- Michigan failed to enact it during its previous Democratic trifecta from 2023 to 2024, and Nevada's then-Democratic governor vetoed the compact in 2019, warning it could diminish his state's influence over presidential elections.
- Notre Dame law professor Derek Muller has argued that the compact would be unconstitutional without congressional approval, which he contends is required under the Constitution's Compact Clause.
What to watch: Whether and how legislators in the new trifecta states move forward.
- Lawmakers in all five states have previously introduced legislation to join the compact.
