Democrats' midterm gains could sideline Electoral College by 2028

Democratic victories in five key states on Tuesday have opened the door to potentially replacing the Electoral College with a national popular vote for the 2028 presidential election, without the need for a constitutional amendment. This development could allow Democrats to fundamentally alter the way America elects its president, potentially eliminating the possibility of winning the White House while losing the popular vote nationwide.

The results of the midterm elections have given Democrats control of the governorship and both legislative chambers in Pennsylvania, Michigan, Arizona, Wisconsin, and Nevada. These five states, combined with the 18 others that have already enacted the National Popular Vote Interstate Compact, represent 283 electoral votes, surpassing the 270-vote threshold required for the compact to take effect. The compact currently has 222 electoral votes under its jurisdiction since its launch in 2006.

The compact would only activate once participating states collectively control at least 270 electoral votes. Under this agreement, Americans wouldn't directly elect the president; instead, they would vote for electors, whose votes ultimately determine the winner every four years. Currently, nearly every state awards all its electoral votes to the statewide winner, with Maine and Nebraska being the exceptions that allocate electors based on congressional district results.

However, the Constitution explicitly grants states the power to appoint electors in the manner they see fit.

While the five newly Democratic states would need to enact the compact, it remains unclear if it will be a priority for them. The Electoral College would officially remain in place, and the compact could face constitutional challenges. Some argue that the compact would be unconstitutional without congressional approval, according to the Compact Clause in the Constitution.

Notre Dame law professor Derek Muller has made a similar argument, stating that the compact would be unconstitutional without congressional approval. This requirement is believed to be stipulated by the Constitution's Compact Clause. The next step will be to monitor whether and how legislators in the new trifecta states move forward with enacting the compact. All five states have previously introduced legislation to join the compact.