A quiet loophole could kill the Electoral College forever and Democrats are inches away from pulling it off

Six states that swung to full Democratic control in Tuesday's elections hold 71 Electoral College votes, and their new governments could bring a plan to sidestep the Electoral College within reach.The plan is the National Popular Vote Interstate Compact, an agreement under which participating states would commit their electoral votes to whichever presidential candidate wins the most votes nationwide. Eighteen Democratic-run states have already signed on, accounting for 222 Electoral College votes.Once states holding the 270 votes needed to win the presidency have joined, the arrangement would effectively require a candidate to win the national popular vote to secure an Electoral College majority. Supporters of the compact see reason to be optimistic in the sweep of Democratic wins for governor and in state legislatures.The sudden blue tint to so many more statehouses opens the door to enough states joining 18 other Democratic-run states in a deal that would effectively neuter the Electoral College (AFP/Getty)In Tuesday's elections, Democrats won full control in Arizona, Michigan, Minnesota, Nevada, Pennsylvania and Wisconsin. Minnesota, which has 10 electoral votes, had already joined the compact under its previous period of full Democratic control in 2023. If the compact goes ahead, the battle for the presidency would become a nationwide vote, rather than a contest concentrated on a half dozen or so swing states.It is not certain, though, that every newly elected lawmaker and governor in the key states backs the strategy, and legal challenges from conservative groups are almost certain. If it proceeds, the plan could end up before the conservative-majority Supreme Court. Some governors express support while others are noncommittal“We can do away with it,” Wisconsin's new Democratic Gov. David Crowley said of the Electoral College, now that his party controls the legislature for the first time in 16 years. “I am interested in having those conversations with the state Legislature.” Over the weekend, Pennsylvania Gov. Josh Shapiro, a likely 2028 contender for the Democratic presidential nomination, said he would like his newly Democratic legislature to take steps toward making the Electoral College obsolete. "I think that the national popular vote makes sense. My views on that have not changed," Shapiro said on a liberal podcast. "I’ll work with lawmakers to figure out what the right mechanism is for moving forward on that."Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on January 6, 2021 in Washington, DC. (Getty)The arithmetic is straightforward for the compact's backers. If Pennsylvania and Wisconsin signed on, just two of the remaining three Democratic flips of Arizona, Michigan and Nevada would be enough to reach the 270 threshold and make winning the Electoral College contingent on winning the popular vote.Not every Democratic governor is embracing the push, at least for now. In a television interview on Monday, Arizona Gov. Katie Hobbs declined to say whether she favored her state joining the compact. “Look, I will tell you, top of mind for me, from talking to voters across the state, is addressing the affordability issues, continuing to find ways to lower costs, to secure the border, to protect our water and continuing to protect public education,” said Hobbs, whose office declined to comment further.Nevada's previous experience with the issue also serves as a cautionary tale for supporters. In 2019, then-Democratic Gov. Steve Sisolak vetoed a measure that would have committed Nevada to joining the compact after Democratic majorities in both houses of the Legislature passed it. Sisolak said at the time that the popular vote idea would diminish the influence of smaller-population states like Nevada in national elections.Democrats passed another measure to join the compact in 2023, but couldn't figure out a way around the state's then-Republican governor. The incoming administration of its new Democratic governor, Aaron Ford, did not respond to requests for comment, nor did Michigan's new Democratic governor, Jocelyn Benson.Two presidents 16 years apart lost the popular voteThe push for a national popular vote gained traction among Democrats after Republican George W. Bush won the 2000 presidential election by inching ahead of Democrat Al Gore in the Electoral College even while losing the popular vote.It gained momentum again after Republicans won the White House that way in 2016, with Donald Trump's victory over Democrat Hillary Clinton. There's nothing inherently partisan about the idea, said Patrick Rosenstiel, a Republican strategist in Minnesota and senior consultant to the popular vote movement. Occasionally, GOP-majority legislative chambers, including the Oklahoma Senate, have passed proposals to join the compact, but the bills haven't gone further.Over the weekend, Pennsylvania Gov. Josh Shapiro, a likely 2028 contender for the Democratic presidential nomination, said he would like his newly Democratic legislature to take steps toward making the Electoral College obsolete (Reuters)Rosenstiel said his own presidential vote is essentially meaningless because Minnesota has reliably voted Democratic in presidential elections for decades, leaving him with no say in the outcome and steering most candidates' attention elsewhere.“I don't believe I've ever been relevant in the outcome of a presidential election,” he said. “National popular vote forces campaigns to focus on every persuadable voter in every precinct across the nation,” Rosenstiel said, adding that the national popular vote campaign has been revving up to push the issue as newly Democratic state legislatures convene at the start of the year.He said the organization has already lined up legislative sponsors.The compact could create constitutional concernsRepublicans no longer have the power to stop the change in Democratic-controlled states, but some conservative groups are prepared to fight.The change “disenfranchises voters in member states if enacted, violates the United States Constitution, and undermines America’s Founders’ intent,” wrote analysts for the America First Policy Institute, a pro-Trump think tank, in September. There is also no guarantee the proposals will pass.The push for a national popular vote gained traction among Democrats after Republican George W. Bush won the 2000 presidential election by inching ahead of Democrat Al Gore in the Electoral College even while losing the popular vote (REUTERS)Derek Muller, a Notre Dame law professor who is skeptical of the idea, said some might have second thoughts now that it's gone from a symbolic protest vote to a real possibility. He said there will also be constitutional concerns that will likely lead to legal challenges.The Constitution lets states run elections, and the Supreme Court has ruled that states can require electors to vote for the presidential candidate they're pledged to, in a case involving electors who sought a substitute for Trump in 2016. Muller flagged several potential legal hurdles to the popular vote plan. States can run their elections but cannot set rules that determine the outcome in other states' contests.Additionally, each state ballot is different, and some states may have third-party candidates who wouldn't appear elsewhere, diluting the voting power of a Democrat or Republican in one state compared to another. That could violate the 14th Amendment's requirement that everyone have “equal protection of the laws.”The U.S. Supreme Court might also decide that states can't join a compact to change one of their core constitutional duties unless they get congressional approval. “I think the Supreme Court will be interested,” Muller said.