Democratic midterm sweep puts Electoral College bypass within arithmetic reach — but courts loom

Democrats won full control of five state governments in last week's midterm elections — Arizona, Michigan, Nevada, Pennsylvania and Wisconsin — and in doing so handed supporters of a plan to sidestep the Electoral College something they have been chasing for two decades: a plausible path to the 270 electoral votes needed to make it work.

The vehicle is the National Popular Vote Interstate Compact, an agreement under which member states commit their electoral votes to whichever presidential candidate wins the most votes nationwide, regardless of who wins their state. The arrangement would only take effect once states holding at least 270 electoral votes have joined. Eighteen states and Washington, D.C., accounting for 222 electoral votes, have already signed on. The five newly Democratic-controlled states represent 61 more electoral votes — meaning if just four of them join, the compact crosses the threshold and activates.

The arithmetic is straightforward, according to the Independent: if Pennsylvania and Wisconsin sign on, only two of the remaining three flips — Arizona, Michigan or Nevada — would be needed to reach 270. Minnesota, which also swung to full Democratic control last week and holds 10 electoral votes, had already joined the compact during a previous period of Democratic control in 2023, according to the Independent.

There is no other election in this country where the person who loses can win the election, where the person who gets the most votes doesn't actually win. And it's fundamentally unfair and antidemocratic, small-d democratic.— Kelda Roys, Wisconsin state Sen. (D)

Pennsylvania Gov. Josh Shapiro, described by multiple outlets as a potential 2028 presidential contender, has been among the most vocal supporters. Speaking on the 'Pod Save America' podcast after the midterms, he said the national popular vote 'makes sense' and pledged to work with his newly Democratic legislature on it.

To me, the most important thing is that the will of the people is heard and respected, and I think popular vote is a way to do that.— Josh Shapiro, Pennsylvania Governor (D)

Wisconsin's new Democratic Gov. David Crowley, whose party controls the state legislature for the first time in 16 years, also signaled openness. 'We can do away with it,' he said of the Electoral College, according to the Independent. 'I am interested in having those conversations with the state Legislature.'

Not every newly elected Democrat is on board. Arizona Gov. Katie Hobbs declined in a television interview to say whether she favored joining the compact, pivoting instead to affordability, border security and water issues, according to the Independent. Nevada's incoming Democratic Gov. Aaron Ford and Michigan's new Democratic Gov. Jocelyn Benson did not respond to requests for comment, the Independent reported. Nevada's history with the issue is instructive: in 2019, then-Democratic Gov. Steve Sisolak vetoed a compact bill passed by Democratic majorities in both chambers, arguing it would diminish the influence of smaller-population states like Nevada.

The compact's supporters have pressed the idea for roughly 20 years, gaining traction after George W. Bush won the 2000 presidency by edging ahead in the Electoral College while losing the popular vote to Al Gore, and again after Donald Trump won the White House in 2016 despite Hillary Clinton receiving more votes nationally. Supporters argue the current system distorts campaigns by concentrating candidate attention on a handful of swing states. Critics counter that a national popular vote would do the opposite — steering candidates toward the most populous states, California, Texas and Florida — while ignoring smaller ones.

National popular vote forces campaigns to focus on every persuadable voter in every precinct across the nation.— Patrick Rosenstiel, Republican strategist and senior consultant to the popular vote movement

Rosenstiel, a Republican in Minnesota, said his own presidential vote has been effectively meaningless because his state reliably votes Democratic, leaving him with no say in the outcome. He told the Independent that the national popular vote campaign has already lined up legislative sponsors in the newly Democratic state legislatures ahead of their convening at the start of the year.

The legal obstacles, however, are formidable. Opponents argue the compact is an unconstitutional attempt to rewrite the rules of presidential elections through state law rather than through the amendment process the Constitution requires. The Constitution also contains a provision requiring congressional approval for some interstate agreements, and while some compact supporters argue that approval is not legally necessary, they say they would seek it anyway — a process that could be complicated even in a Democratic-controlled Congress, where multiple senators from both parties are weighing presidential runs and would have to calculate whether a popular vote system helps or hurts their prospects.

I'm going to side with the founders on the idea that there are certain things, certain structures and limitations, that we put on democracy. There's not a lot of difference between a society which is run by an autocrat versus one that's run by 51 percent of the people in the country that are able to do whatever they want whenever they want.— Daniel Lennington, vice president, Wisconsin Institute for Law and Liberty

Derek Muller, a University of Notre Dame law professor skeptical of the compact, told the Seattle Times that an avalanche of litigation is certain. One line of attack: because states have different voting rules — some require ID, some mail ballots to every registered voter, some offer robust early voting — challengers could argue the compact creates an unconstitutionally uneven presidential contest. Under another theory, the compact would effectively turn state elections into a national one, violating state voter residency requirements. The Supreme Court would likely weigh in, Muller said, but so would numerous state supreme courts — and supporters of the compact would have to win every case.

Analysts for the America First Policy Institute, a pro-Trump think tank, wrote in September that the change 'disenfranchises voters in member states if enacted, violates the United States Constitution, and undermines America's Founders' intent,' according to the Independent.

If we had the attitude of not doing the right thing because of lawsuits, we wouldn't do anything.— Chris Rabb, Pennsylvania Democrat elected to Congress last week

There is also debate over whether the president could veto the compact, according to the Seattle Times, which noted that a White House spokesperson did not respond to a request for comment. Whether Democrats in the newly flipped states will move quickly, move cautiously, or move at all remains to be seen — but for the first time in the compact's two-decade history, the electoral math is no longer theoretical.

Why it matters — If enough newly Democratic states join the compact and it survives legal challenge, it would fundamentally change how presidential campaigns are run and who can win the White House — ending a system that has twice in recent decades produced a president who lost the popular vote.

Sources differ on Whether congressional approval is required for the compact to take effect: Congressional approval is constitutionally required for interstate compacts of this scope. (seattletimes.com) vs Some compact supporters argue congressional approval is not legally necessary, though they say they would seek it anyway. (seattletimes.com)

Sources differ on Effect of national popular vote on smaller states: Supporters say it would force candidates to seek votes broadly across the nation rather than focusing on swing states. (independent.co.uk) vs Critics, including former Nevada Gov. Sisolak, say it would diminish smaller states' influence and steer candidates toward the most populous states. (independent.co.uk)

Reported by washingtonpost.com, seattletimes.com, independent.co.uk, inquirer.com