The popular vote can wait
The Democratic Party won a resounding victory over Republicans in state and federal elections in the United States on November 3rd. Not just their hoped-for “blue wave,” but a “blue tsunami.” As of this writing, Democrats will possess (beginning January 3rd) at least 54 votes in the 100-member US Senate, and at least 254 of the 435 votes in the US House. Democrats also did surprisingly well at the state level, flipping 5 gubernatorial seats (possibly 6, depending on Alaska) to control the executive in at least 28 (possibly 30, depending on Alaska and Kansas) of the 50 states. In addition, Democrats won (or maintained) control of both state legislative chambers and the governorship in Arizona, Michigan, Pennsylvania, Nevada, and Wisconsin.
These five states are especially important for Democrats because they have long been on their wishlist for joining an agreement known as the National Popular Vote Interstate Compact (NPVIC). The NPVIC is a contract among 18 states so far (plus the District of Columbia) committing them to award all of their Electoral College (EC) presidential votes to the overall winner of the national popular vote in the country, regardless of which candidate won in an individual state. Recent stories in major press outlets (such as the New York Times, Newsweek, and Axios) suggest that the blue tsunami makes it much more likely that the NPVIC will come into effect. But this outcome is not nearly as certain as it may seem at first.
How the Electoral College works
To appreciate the scope of this potential change, it’s important to understand how the current EC process works to elect a presidential ticket.
On Election Day in a Presidential election year, there is not a single election for a President and Vice-President but rather 51 separate ones (in each state plus DC). Voters in each state see a presidential ticket on their ballots—with selections like Trump/Pence (R) and Biden/Harris (D)—but they are not actually directly selecting those tickets. They are instead selecting a slate of electors that have been pre-selected by each state party (with the number of each party’s electors equaling the number of members of Congress allocated to the state, roughly proportionate to its population).
In all states but two (Maine and Nebraska), the ticket with a plurality of the state popular vote wins all of the state’s electoral college votes. More accurately, the electors on the plurality winner’s slate are all elected as the state’s official members of the national Electoral College. Members of the EC cast their votes on a single day (always falling between December 14th and 20th) in their state capitals, and are expected to (in some states, legally required to) adhere to the presidential ticket they were elected to vote for by the people of their state. The EC votes are later counted and certified by the US Congress on January 6th.
Opponents of the current EC process have focused on various problems, with two at the forefront. One is the potential “mismatch” between the EC winner and the popular vote winner nationwide. Two elections this century have experienced this problem: the 2000 election of (Republican) George W. Bush, who placed 2nd in the popular vote, and the 2016 election, where (Republican) Donald Trump lost the popular vote to Hillary Clinton. A second problem is that, given the winner-take-all rules described above, presidential candidates have incentives to campaign hardest in “swing states” (especially larger ones) rather than states that are considered “safe” for one party or the other.
A pact to change the rules
The NPVIC is meant to solve these problems, in essence by changing the way EC votes are awarded. Rather than a state in the Compact awarding all of its EC votes to the plurality winner in that state, it awards them to the national vote winner. Equivalently, the slate of electors appointed by a contracting state to the national Electoral College would be those associated with the ticket of the national vote winner.
This is clearly desirable to some groups—especially Democrats, who have, after all, been the “victims” of the current process twice in the past quarter-century, so their broad support for the scheme is not surprising (almost all of the 19 signatories are consistently deep-blue states). But the NPVIC is currently “on hold.” One crucial provision of the Compact, enshrined in substantively identical legislation passed by its signatories, is that it does not take effect until those signatories have a majority of the Electoral College (or 270 of 538 votes). Currently, they only control 222 EC votes, 48 short of what they need. But if the 5 states mentioned earlier signed onto the Compact, their combined 61 electoral votes would take the 222 current votes up to 283, and the NPVIC would therefore take effect.
Given the new electoral math, will the holdup continue? Now that Democrats control these 5 states outright, won’t they immediately sign onto the Compact and change the way a President is elected? This would ensure that in 2028 there would be no possibility of elevating the 2nd-place candidate (like Bush or Trump) to the highest office in the land. Putting aside for the moment some minor impediments that might make this difficult to implement before 2028 (and there are several), here are four very high barriers to overcome.
Swing states and the referendum risk
Why would swing states join? Nevada had a chance to sign onto the Compact in 2019, but the Democratic governor vetoed the legislation because he felt that the state would be giving up some of the attention (and perhaps some of the promised goodies from candidates) that it currently receives. In Michigan, both chambers (and the governor’s mansion) were blue during 2023-24 and it still did not join the Compact, presumably for the same reason. Notably, there is no slack without Michigan: under the current partisan arithmetic, both it and Pennsylvania, plus two of the other three states, must join the Compact for it to take effect.
Voters in Michigan and Arizona have “veto referenda” that allow a relatively small share of voters (5% of those who voted in the last governor’s race) to demand (via a filed petition) that any new laws (including legislation necessary to join the Compact) be suspended until a referendum at the next election. That election wouldn’t take place until November 2028. The NPVIC, however, applies to a presidential election only if, on July 20th of that year, it is in effect in states holding a majority of electoral votes, and a suspended law is, by definition, not in effect. If voters were to file a successful referendum petition in Michigan, given its mathematical necessity, the Compact could not go into effect until 2032 (and that assumes the referendum outcome supports the Compact). There are loopholes legislators could use in these states to forestall a referendum, but such steps would likely be seen as too politically costly.
Congress and the Supreme Court
Congress may need to approve the NPVIC with a legislative act, and if that happens, President Trump would then have to sign it before it becomes law. Why would congressional approval be necessary? The Compact Clause of the US Constitution explicitly bars states from entering into any agreement or compact with one another without congressional consent. In the past, the US Supreme Court (SC) has interpreted that requirement narrowly (e.g., Virginia v. Tennessee, 1893; U. S. Steel v. Multistate Tax Commission, 1978), ruling that consent is needed only when the agreement increases the power of the contracting states at the expense of the federal government—or, as the Court also considered in U. S. Steel, at the expense of states outside the agreement. Supporters argue that the first concern does not apply to the NPVIC, because state legislatures already have plenary power over how they appoint electors.
But the second concern could still undermine the Compact in the eyes of the Court: states that did not join the pact could argue that the other states are essentially “ganging up” on them. Once the Compact’s members hold 270 electoral votes, the electoral votes of every other state become irrelevant—the outcome is decided by the member bloc, according to a national tally. Non-member states would still choose their electors under their own rules, but those choices would no longer matter. Worse, their vote counts, ballot rules, and recount procedures would become decisive for an agreement they never joined. Supporters would respond that nothing in the Compact compels non-member states to do anything, and that any single state could already award its electors to the national winner on its own. In the U. S. Steel case, the challengers (corporate taxpayers) argued, among other things, that the Multistate Tax Compact harmed the sovereignty of non-member states. Although the Court rejected that claim on the facts in that particular case, nothing stops a non-member state from making a similar case against the NPVIC, and because it would be states suing states, the case would go directly to the Supreme Court. If the Court takes up the case and finds that the Compact impairs the sovereignty of non-member states, it would rule that congressional consent is required. Congress would then have to approve the NPVIC. What would that require? Ordinarily, a simple majority in the House (which Democrats have), and 60 votes in the Senate (so long as the filibuster rule remains in effect). But then, because this is legislation, it would eventually end up on President Trump’s desk, and he would surely veto it (given how Republicans have benefitted from the current system lately). Congress could override his veto, but only with two-thirds of those voting in each chamber. A very rare event these days, and it’s hard to imagine enough Republicans joining Democrats in such an exercise.
What if a state changes its mind
Finally, what happens if a state leaves the Compact—especially if Congress has not approved the Compact and made it federal law? The current NPVIC gives states the ability to get out of the contract, but not between July 20th of the election year and January 20th of the next (the day of the President’s inauguration): the “blackout period.” But what if a state tries it anyway—maybe because the polls suggest its voters will back a candidate likely to lose the national vote? (After Election Day, federal law itself blocks such a change.) Other states could sue the repealing state in the SC for violating the Contracts Clause of the US Constitution, but the repealing state could argue that the US Constitution gives state legislatures plenary authority over how their states select electors—and no agreement, not even one the state previously signed, can contract away powers given to it by the US Constitution. In other words, the repealing state can “change its mind” anytime it likes, and argue that its authority to do so is constitutionally protected. That seems pretty convincing at first glance, although the Court has long treated interstate compacts as binding contracts that a state cannot escape except on the compact’s own terms.
In short, the blue tsunami, despite the massive win for Democrats, will not necessarily result in presidential elections governed by the NPVIC. Almost certainly not by 2028. And after that, not until enough other states (large or small) sign on to make up for the swing states, which aren’t likely to join—and, if congressional approval is required, not until Democrats have the Presidency along with a House majority and 60 Senate seats. Even then, the constitutional question for a repealing state, looms large. The SC might rule that congressional approval of the Compact is enough to keep a repealing state from leaving during the blackout period, but it may not. In that case, the only sure route to a national popular vote would be a constitutional amendment. This is certainly a possibility, but it would require two-thirds of both chambers of Congress and three-quarters of the state legislatures—in practice, a Democratic supermajority at both levels, unless Republicans could somehow be brought on board. That, too, could happen, but probably only after Republicans themselves become the victims of the current process of electing the US President.
