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A surprisingly partisan turn by Virginia’s Democratic governor, Abigail Spanberger, in support of gerrymandering has been widely publicized. But another, potentially more explosive progressive electoral experiment in the Old Dominion is flying under the radar. Last week, Spanberger signed legislation entering Virginia into the National Popular Vote Interstate Compact (NPVIC), an initiative that aims to fundamentally change the way the United States elects presidents without amending the Constitution.

Spanberger’s signature brings the NPVIC from the realm of the theoretical to the realm of live politics. And this half-baked rewrite to a centuries-old institution of American democracy could invite a constitutional crisis. The implications deserve more attention before voters go to the polls in November and potentially bring the NPVIC over the finish line in time for the next presidential election.

American presidents, of course, are chosen every four years by an Electoral College representing weighted election results from each state. That means occasionally a candidate fails to get the most votes nationwide but wins key swing states and therefore the presidency.

The NPVIC proposes a superficially clever workaround. States that ratify the compact agree to award all the electoral votes they control to the winner of the “national popular vote,” no matter what their own voters say. So, for example, if the NPVIC had been in effect in 2024, California (which signed on to the pact in 2011) would have had to award its 54 electors to Donald Trump.

But the obligation to award electors to the popular vote winner doesn’t kick in until a coalition of states representing an Electoral College majority have signed on — that is, states carrying 270 electoral votes. With the entry of Virginia into the compact, the signatories now carry 222. Maine, Minnesota and Colorado also joined since 2020.
As Notre Dame law professor Derek Muller notes, this puts 270 plausibly within reach for the first time. “If Michigan (15), Pennsylvania (19), Wisconsin (10), and Nevada (6) all tip toward Democratic trifectas” — meaning Democratic control of the governorship and both houses of the legislature — “that’s 50 EVs,” he observes. If each of those states ratified the NPVIC, it would control an Electoral College majority — 272 votes out of 538 — and the compact, by its own terms, would go into effect.
The 2000 and 2016 experiences have convinced Democrats that the Electoral College is a structural obstacle to their party. Though demographics are always changing and it’s anyone’s guess which way the institution will lean in 2028, the Democrats would be under tremendous pressure to move toward a popular vote system for the first post-Trump presidential election if they got the power to do so.

Voters could give them that power in November. In Michigan and Pennsylvania, just one house of the legislature would need to flip for Democrats to have a trifecta, assuming Democrats hold on to the governorships. In Nevada, incumbent Republican Gov. Joe Lombardo would need to be unseated, but the legislature is already controlled by Democrats

In Wisconsin, both houses of the legislature would need to flip — maybe the heaviest lift for Democrats — but the current (retiring) governor is a Democrat. Alternatively, Muller notes in an email, Arizona (11 electoral votes, Democratic governor, Republican legislature) could become a Democratic trifecta, which would bring the NPVIC over 270 without Wisconsin

All these states are fairly closely divided, and the fundamentals favor strong Democratic turnout this year. The Electoral College is a stealth issue in the midterms. But even if the conditions to activate the NPVIC were met, it’s an open question whether it could actually be implemented in a close presidential election without a constitutional crisis.

For one thing, the Constitution limits the ability of states to enter into binding agreements with other states without congressional approval. For another, governors who have to certify electoral votes after the election is over could try — with constitutional justification — to renege on the compact. They could insist on awarding their state’s electoral votes to the candidate who won their state, rather than the popular vote winner, if doing otherwise would hand the White House to the opposing party. Imagine the court challenges leading up to inauguration.

By the way, the 2030 Census is expected to award more Electoral College votes to states such as Florida and Texas, while California and other blue states lose population share. So even if the NPVIC reached the 270 threshold in 2028, it could lose it for 2032. The Constitution tries to lay out stable rules for selecting the country’s chief executive for a reason.

There are legitimate reasons for the Electoral College: upholding federalism, preventing geographically concentrated electoral coalitions, accounting for the different voting rules and timelines in each state.

There are also legitimate reasons to want to switch to a national popular vote. But that would require a thought-out process — perhaps including uniform national voting rules and a France-style runoff — to ensure the results are trusted and the winning candidate receives a majority, not just a plurality, of the vote.

The Electoral College can’t reliably be deconstructed with a rickety end-run around the Constitution. Perhaps the NPVIC’s proponents are clear-eyed about this. Perhaps they see their campaign not as a smooth pathway to reform, but as a formula for a crisis that would make possible one of the most profound changes to the American democratic process since the nation’s founding.

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