Democratic midterm gains put national popular vote compact within reach of activation for 2028

Democratic gains in this week's midterm elections have opened a new front in the long-running fight over how the United States selects its president, one that could reshape the 2028 race for the White House.

Democrats now hold the governor's office and both chambers of the state legislature in Michigan, Pennsylvania, Wisconsin and Nevada. The National Popular Vote Interstate Compact, already enacted by 18 states and Washington, D.C., has 222 electoral votes pledged to it, 48 short of the 270 needed to take effect. If those four states join, their combined 50 electoral votes would lift the compact to 272 and activate it. Arizona could push the total to 283 if Democrats ultimately gain control of both chambers there.

National Popular Vote, the nonprofit that wrote the compact and campaigns for it state by state, says it has identified multiple legislative sponsors in each of the five states whose combined electoral votes could clear the 270-vote threshold. The group expects bills to be pre-filed before, or introduced early in, 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," Patrick Rosenstiel, a senior consultant for NPV, told Fox News Digital.

Under the current system, every state except Maine and Nebraska awards its electoral votes to the candidate who wins statewide. If the compact takes effect, participating states would instead give their electors to the candidate who wins the most votes nationwide, leaving the Electoral College formally in place but making the national tally decisive. Supporters say that would give every vote equal weight, while defenders of the Electoral College note it was designed to give both populous and smaller states a meaningful role in choosing the president.

Critics say the plan faces serious constitutional obstacles. "They can't use a compact to, in essence, change the Electoral College," Hans von Spakovsky, an election law expert with the conservative group Advancing American Freedom and a former commissioner on the Federal Election Commission, told Fox News Digital. "This is unprecedented. In the past, the only kind of compacts that have been agreed on between states have been things like water sharing, when rivers run between states, they enter into compacts to agree on that. But a compact that changes a fundamental structural given in the Constitution, I think the Supreme Court would say you can't do that."

Rosenstiel rejected that argument, pointing to the Constitution's grant of authority over electors. "Any clean read of Article II, Section 1 makes it clear that states have the exclusive power to award electors," he said. "The only credible legal question is whether this compact requires congressional consent." Von Spakovsky argued that because the compact is an agreement among states, Congress would have to approve it under the Compact Clause in Article I. He noted Congress could act with simple majorities in the House and Senate, and that the Constitution does not explicitly require the president's signature, meaning a veto might not stop it.

Still, von Spakovsky said states that decline to participate would have grounds to sue. "Given that the NPV is entirely a creation of Democrats and only supported by Democrats, the new Congress will no doubt easily pass this compact," he said. "However, I believe the non-participating states would have a good basis for litigation, which would end up in the Supreme Court, arguing that the compact is unconstitutional because it changes a fundamental structural part of the Constitution without going through the constitutional amendment process."

Rosenstiel said the compact would apply to the 2028 election only if states representing at least 270 electoral votes join before July 20 of that year, leaving state lawmakers, Congress if its approval is required, and the courts less than two years to settle the political and constitutional questions. "I'm increasingly confident we can achieve that goal and we will have a national popular vote for president in 2028. I would certainly prepare for it," he said. Until then, the Electoral College remains unchanged.