Democrats' successes in the recent midterm elections have potentially paved the way for the National Popular Vote Interstate Compact to gain enough support to activate, which could alter the method of electing the U.S. president as early as the 2028 election. The compact aims to award all of a participating state's electoral votes to the candidate who wins the national popular vote.
Democrats now hold the governor's office and both legislative chambers in Michigan, Pennsylvania, Wisconsin, and Nevada. These four states, along with Arizona where Democrats may gain control of both chambers, could provide the necessary electoral votes to reach the 270 required for the compact to take effect. Currently, 18 states and Washington, D.C., have joined, pledging 222 electoral votes. With the addition of these five states, the total could rise to 272 or 283.
The National Popular Vote (NPV) organization, which spearheaded the compact, is actively seeking legislative sponsors in these states and anticipates introducing bills during the 2027 legislative sessions. "I am confident we have multiple paths to secure the 48 electoral votes required to deliver what 63-percent of Americans want," stated Patrick Rosenstiel, a senior consultant for NPV.
Under the current system, most states award their electoral votes based on the statewide popular vote winner. Maine and Nebraska are exceptions, allocating electors by congressional district and statewide winner. If the NPV compact is enacted, participating states would disregard their state's popular vote winner and instead award electors to the candidate who wins the most votes nationwide. This would keep the Electoral College structure in place but make the national total the decisive factor.
Supporters of the compact argue it would ensure every vote holds equal weight by counting ballots toward a single national total, contrasting this with the Electoral College's design to balance the influence of populous and smaller states. However, critics, such as Hans von Spakovsky, an election law expert with Advancing American Freedom, argue that states cannot use a compact to fundamentally alter the Electoral College, a component they view as integral to the Constitution. Von Spakovsky suggests that such an agreement between states would likely require congressional approval under the Constitution's Compact Clause and could face legal challenges questioning its constitutionality before the Supreme Court.
NPV disputes the argument that the compact would unconstitutionally change the Electoral College, asserting that Article II, Section 1 of the Constitution grants states the authority to determine how their presidential electors are appointed. Rosenstiel stated, "Any clean read of Article II, Section 1 makes it clear that states have the exclusive power to award electors."
Von Spakovsky countered that the NPV compact, being an agreement between states, would necessitate approval from Congress. He noted that while Congress could approve it with simple majorities, non-participating states would have grounds for litigation, arguing that the compact modifies a core constitutional structure without going through the formal amendment process. He believes such a case would ultimately reach the Supreme Court.
Rosenstiel indicated that for the compact to apply to the 2028 election, states totaling at least 270 electoral votes must join before July 20, 2028. This leaves a limited timeframe for legislative action, potential congressional approval, and any ensuing court battles to resolve the complex political and constitutional questions surrounding the initiative.