Democrats’ midterm sweep opens path to bypassing Electoral College by 2028

The National Popular Vote plan is on a path to reaching the 270 electoral votes needed for activation, but an election law expert warns of impending legal battles

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Published November 8, 2026 8:00am EST

https://www.foxnews.com/video/6402794226112

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Democrats’ midterm gains have opened a new front in the fight over how America chooses its president — one that could reshape the 2028 race for the White House.

Democrats now control 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 the four states join, their combined 50 electoral votes would push 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 (NPV), the nonprofit organization that authored the compact and is campaigning to enact it state by state, says it has identified multiple legislative sponsors in each of the five states whose combined electoral votes could push the compact over the 270-vote threshold. It 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.

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A voter fills out their ballot at a polling location inside Wayne Community College – Eastern Campus on the final day of early voting for the midterm election in Detroit, Michigan, on Sunday, Nov. 1, 2026.(Emily Elconin/Bloomberg via Getty Images)

Under the current electoral system, every state except Maine and Nebraska awards its electoral votes to the candidate who wins the statewide vote. If the compact takes effect, participating states would instead award 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 argue the compact would give every vote equal weight by counting ballots toward a single national total. The Electoral College, by contrast, was structured to give both populous and smaller states a meaningful role in choosing the president.

“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, told Fox News Digital when asked about the potential activation of the compact before the 2028 election.

“This is unprecedented,” von Spakovsky, a former commissioner on the Federal Election Commission (FEC), continued. “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.”

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A 4th grader works on an election themed art project at Heather Hills Elementary School in Bowie, Md., on Tuesday, October 22, 2024.(Tom Williams/CQ-Roll Call, Inc via Getty Images)

Rosenstiel rejected the argument that the compact would improperly alter the Constitution, saying NPV believes Article II, Section 1 gives states the authority to determine how their presidential electors are appointed.

“Any clean read of Article II, Section 1 makes it clear that states have the exclusive power to award electors,” Rosenstiel said. “The only credible legal question is whether this compact requires congressional consent.”

Von Spakovsky argued that because the NPV compact is an agreement between states, Congress would have to approve it under the Constitution’s Compact Clause in Article I. He noted Congress could approve the compact with simple majorities in the House and Senate and that the Constitution does not explicitly require the president’s signature — meaning a presidential veto might not stop it.

However, von Spakovsky added that states choosing not to participate in the National Popular Vote Interstate Compact would have a strong basis for litigation.

“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 told Fox News Digital. “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. The argument would be that states cannot make agreements among themselves that damage the federal system provided by the Constitution.”

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National Popular Vote’s campaign has identified sponsors in all five potential additions following the midterms that could help push the compact over its 270-vote threshold and plans to begin pushing bills before or early in the 2027 legislative sessions, according to Rosenstiel.

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. That gives state lawmakers, Congress — if approval is required — and the courts less than two years to resolve the political and constitutional questions.

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Until then, the Electoral College remains unchanged.

“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.

Alec Schemmel is a Politics Reporter for Fox News Digital who is originally from Charlotte, North Carolina but now resides in the Washington D.C.-Baltimore Metro Area.