Democrats won the power to obstruct President Donald Trump in Congress. Now, some want to use their midterm victories in the states to change the rules for choosing his successor.
While House Minority Leader Hakeem Jeffries (D-NY) pursues the speaker’s gavel and Democrats prepare to take over Congress, the party’s gains in state capitals have put a more enduring prize within reach: enough electoral votes to make the national popular vote effectively determine the presidency, rather than the Electoral College.
Lawmakers are looking toward 2027 to advance the National Popular Vote Interstate Compact, an agreement designed to accomplish through state legislation what supporters have been unable to achieve through a constitutional amendment. Its activation could transform the 2028 presidential race and trigger a court fight over the rules governing it.
The race to 270
The compact commits participating states to award their presidential electors to the national popular vote winner, even when their own voters choose someone else. That requirement kicks in once participating states hold an Electoral College majority.
Eighteen states and Washington, D.C., have joined, accounting for 222 electoral votes. Democrats’ gains in Michigan, Nevada, Pennsylvania, and Wisconsin could put another 50 within reach. If all four join, the agreement would command 272 electoral votes, exceeding the 270 needed to elect a president. Arizona, which now has an incoming Democratic trifecta, offers another possible route with 11.
Notre Dame law professor Derek Muller anticipated that Democrats might have this opening in a March post on the Election Law Blog, identifying Democratic control of Michigan, Pennsylvania, Wisconsin, and Nevada as potential additions to the NPVC if Democrats were to win control of them.
“It’s the most viable endgame for the Compact ahead of a presidential election yet,” Muller wrote.
Under the agreement’s terms, participating states must hold an electoral majority by July 20 of a presidential election year, making July 20, 2028, the deadline for using the NPVC to choose Trump’s successor.
Supporters are positioning the agreement as an early priority when state legislatures reconvene in 2027.
“National popular vote will be something that we’ll prioritize early in the session,” Wisconsin Democratic state Sen. Kelda Roys told the New York Times.
The organization behind the compact is already promoting the election results as a path to activation next year. Virginia brought the effort closer in April, when Gov. Abigail Spanberger (D-VA) signed legislation adding the state’s 13 electoral votes.
Lawmakers have already introduced bills they can build on in the next session. Michigan Democratic state Rep. Carrie Rheingans introduced compact legislation in July, while Wisconsin Democrats introduced their latest version in March.
Pennsylvania Democrats have argued that their state’s coveted battleground status comes at a cost, subjecting voters to relentless campaigning while much of the country is overlooked.
“A healthier democracy should not depend on exhausting a few states while ignoring the rest,” state Sens. Maria Collett and Katie Muth wrote in a February sponsorship memo.
The senators also cast the proposal as an answer to Republican election legislation, contrasting it with the SAVE America Act’s push for documentary proof of citizenship to register to vote.
The compact would technically leave the Electoral College standing but change what determines its outcome. Participating states would collectively deliver an electoral majority to the candidate receiving the most votes across all 50 states and Washington, D.C., including states that refuse to join.
Critics argue that the agreement would bypass the Constitution’s amendment process to fundamentally alter presidential elections. Jason Snead, executive director of the conservative Honest Elections Project, said the midterm results had brought that constitutional confrontation much closer.
“This is really … untested ground, quite frankly,” Snead told the Washington Examiner. “There’s obviously a lot of prior precedents surrounding compacts, but this is a somewhat unique creature in the world of interstate compacts.”
Supporters argue that the change would make presidential elections operate on the same straightforward electoral principle as other contests.
“The presidential candidate who gets the most votes nationwide should become president, plain and simple,” Rheingans said in a June 2023 statement.
Pennsylvania Democratic state Rep. Chris Rabb made a similar argument when he reintroduced legislation in April 2025.
“Every voter, of every party should have an equal voice in presidential elections,” he said.
A constitutional collision that could bring ‘chaos’ to 2028
Passing the compact in enough states would set up a legal fight over whether states can collectively use their power to appoint electors to determine a presidential election without congressional consent.
Snead warned that passing the compact next year could leave candidates and voters facing a prolonged court fight over how the next president will be chosen.
“If they pass this next year, we’re going to be arguing this in the run-up to 2028,” he said. “It’s going to be chaos. It’s going to be confusion.”
The Supreme Court has examined related concerns in other interstate arrangements, but nothing explicitly related to the NPVC. In Northeast Bancorp v. Board of Governors, a 1985 decision upholding regional banking laws, then-Justice William Rehnquist considered whether the arrangement would “enhance the political power of the New England States at the expense of other States.” The court found that those laws did not.
Muller argued in his 2007 examination of the popular vote compact that the agreement would increase participating states’ political power at other states’ expense and therefore require congressional approval.
He also pointed to the agreement’s collective activation requirement and restrictions on withdrawal as reasons to treat it as a compact subject to constitutional scrutiny.
A ruling requiring congressional consent could draw Jeffries and Senate Democrats into the dispute. Snead cautioned that such a decision would move the fight to Congress rather than necessarily defeat the agreement.
“That … is not necessarily a silver bullet to kill the compact because then, of course, it becomes a political question,” he said.
Supporters dispute that Congress needs to approve it. They point to Article 2, which gives state legislatures authority to direct the appointment of presidential electors. A 2025 New York University law journal analysis challenged Muller’s reasoning, arguing that the compact exercises powers already belonging to states without impairing federal supremacy.
Other challenges could focus on the compact’s reliance on election returns produced under different state voting rules. The agreement would combine those returns without creating a uniform national election code.
Muller examined that problem in “The Electoral College and the Federal Popular Vote,” arguing that aggregating state results does not produce a uniform national contest. Snead said those differences could invite equal protection challenges.
“We have 50 different states with 50 different rules, and sometimes those rules vary radically,” he said.
Snead said presidential candidates or states that refuse to join could bring a challenge, though exactly how that fight would reach the courts is still unclear.
Surrendering the swing-state prize
The states that could put the compact over the top would also be giving up the privileged position they hold in presidential politics. Candidates court their voters, tailor promises to their industries, and pour money into their television markets. Under a national popular vote system, the incentive would shift toward finding additional votes wherever they are available.
“Each one of them, currently today, is a presidential battleground state,” Snead said. “Joining the compact vastly diminishes the role that they play.”
Concerns about losing that influence have divided Democrats before. Nevada’s former Democratic governor, Steve Sisolak, vetoed compact legislation in 2019, warning that the agreement could diminish smaller states’ influence and force Nevada’s electors to support a candidate its voters rejected.
Supporters argue that the current system rewards competitive states rather than protecting small states generally. Collett and Muth’s Pennsylvania memo makes the case that spreading campaign attention across the country would be healthier than concentrating it on a handful of closely divided electorates.
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The partisan consequences are also less predictable than the compact’s Democratic support might suggest. Trump lost the popular vote in 2016 but won it in 2024, demonstrating that a nationwide tally would not necessarily favor Democrats.
Patrick Rosenstiel, a Minnesota Republican and senior consultant to National Popular Vote, made that case in an April Washington Examiner column urging conservatives to embrace the compact. He argued that neither party holds a permanent advantage under either system and that Republicans should welcome a contest requiring them to compete for votes beyond the familiar battlegrounds.