Midterms could prove fatal to electoral college

The results of the midterm elections could prove fatal to the electoral college, as state legislatures prepare for new sessions in early 2027.

The National Popular Vote Interstate Compact, first launched in 2006, is set to be an agenda item in several states following sweeping Democratic wins across the country. The compact is designed to subvert the electoral college process by requiring states to award presidential electors to the winner of the national popular vote, not the candidate who the state's own votes prefer.

In April, Virginia became the most recent state in the nation to adopt the compact. The 18 states that make up the compact account for 222 electoral votes; 270 are needed to elect the president.

Patrick Rosenstiel, a senior consultant with the National Popular Vote, said organizers with the compact are eyeing states across the country that could push membership to more than 286 electoral votes, beyond the 270 required to elect a president.

“The midterm elections have created legislative and political environments in several states that significantly improve the prospects for National Popular Vote being in place for the 2028 presidential election,” Rosenstiel wrote in an email to The Center Square.

Arizona, Michigan, Pennsylvania, Nevada and Wisconsin have all become Democratic trifectas after the midterm elections, making national popular vote legislation more feasible. The only states across the country to join the compact have Democratic legislative trifectas.

Jonathan Williams, president of the free market American Legislative Exchange Council, called the compact a "major threat" to the founding father's intent to balance power between larger and smaller states, so major metropolitan areas did not have greater weight in deciding elections than more rural areas.

Trent England, executive director of Save Our States, said the compact is an opportunity for Democrats in state legislatures across the country to compromise with Democratic Socialists of America politicians to avoid moving forward with legislation that raises taxes.

"They can go out and say, ‘We'll do your electoral college thing' and hopefully that buys them some space from the [Democratic Socialists of America] wing on some other things that may be even harder for them to do because they're potentially so expensive," England said.

Aaron Ford, the Democratic governor-elect in Nevada, said he would support an effort to bring Nevada into the pact.

“I didn’t initially support it frankly because I hadn’t done enough research on it, but I have researched it and looking at the electoral college, understanding the, frankly, racist underpinnings of it in the first place leads me to believe that we need to get rid of it,” Ford told a local news outlet. “Not only for that reason but because we’ve seen several times now the person who wins the popular vote not win because of the electoral college.”

Over the course of American history, five presidents have lost the popular vote while winning the electoral college. Two of the last five elected presidents lost the popular vote.

“I am more confident than ever we will have a national popular vote for president. We will work with every ally, every legislator, every voter who wants to get their shoulder to the wheel,” Rosenstiel wrote. “The time is now to advocate for what a vast majority of American voters want - one where every voter, in every state, in every precinct has an equal voice in selecting our next president.”

Jason Snead, executive director of the Honest Elections Project, said the compact is not something voters across the country want for election reform. He pointed to voter ID measures and citizenship initiatives adopted in states across the country including Alaska, Arizona, Oklahoma and North Carolina from the midterm elections.

“There was really a strong consensus, I think, across the board that voters want election integrity, they want clear rules, they want safeguards, and the National Popular Vote Compact is the opposite of all of that,” Snead said.

In Arizona, legislators will begin the new session on Jan. 11, where lawmakers could bring the compact up for consideration. Nevada’s legislative session begins on Feb. 1. England said Wisconsin, Pennsylvania and Michigan will likely wait to see the outcomes in both states before adopting the compact.

“We're going to see Arizona and Nevada move very quickly to consider national popular vote,” England said. “Those states will have this debate first.”

Regardless, England said litigation to fight the compact will only begin once it is formally implemented. He said rules in state constitutions across the country that prohibit out-of-state residents from participating in the electoral process will be central to the litigation.

“The Constitution says clearly the interstate compact must have the consent of Congress. The courts have watered that down in the past, but I think that the current Supreme Court is much more textualist and will be much more serious about the compact clause,” England said.

However, Rosenstiel argued that the U.S. Constitution gives states greater flexibility to determine how a state chooses its electors under Article II Section 1.

“The power to award electors is the exclusive power of the state legislature,” Rosenstiel said. “National Popular Vote allows legislators to deliver what a vast majority of voters want - a National Popular Vote for President - and raises no conflicts with the Constitution.”

The constitutional clause at issue reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Rosenstiel said the compact is popular with 63% of Americans and should be adopted.

"We hear from legislators and citizens (of all political parties) on an hourly basis who are excited to introduce and lead on this issue," he wrote. "One-person, one-vote is a fundamental principle of American democracy and it should govern presidential elections."

England warned passage of the compact would significantly alter how presidential campaigns function moving forward. He said candidates would no longer have an incentive to address the needs of rural or less densely populated areas.

“All of the sudden their campaign map isn't, ‘We've got these safe states where voters already support us and we've got to build our coalition out into these swing states,’” he said. “It's ‘How many votes can we drive out of these major metropolitan areas?’”