Democrats' plan to bypass Electoral College faces constitutional questions
Former federal prosecutor Andrew Cherkasky joins 'America Reports' to discuss how the Democrats' efforts to bypass the Electoral College face constitutional barriers. Cherkasky notes that the effort would require congressional approval to succeed and aims to take effect by 2028.
After the midterm elections, the Democrats are moving in for the kill.
Liberal politicians and pundits realize that the Republicans’ losses may represent only a fleeting and indeed predictable shift in power. While played up by the media, the results this month are consistent with those under prior administrations. For example, the GOP’s loss of roughly 46 seats is modest compared with losses under other presidents such as Franklin Delano Roosevelt, who lost 79 seats; Barack Obama, 69; Harry Truman, 68; and Bill Clinton, 54. Thus far, Trump is just making the top ten. Some presidents, like Obama, who experienced massive losses, came back to win second terms.
And that could happen. But the Democrats who won on Tuesday night are not waiting to find out. They are moving to help guarantee that they can take the White House and, with control of both houses, implement radical changes to ensure that they hold power for years to come. That includes finally negating the Electoral College to increase the power of high-population blue states such as California and New York.
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As discussed in my recent book, "Rage and the Republic," academics and pundits have been discussing radical changes, including trashing the Constitution, for years. The key is to destroy minority protections by killing the filibuster and create an insurmountable majority by adding new states like the District of Columbia and Puerto Rico. The most important initial objective is packing the Supreme Court with an immediate liberal majority to allow for measures that would likely be struck down.
Years ago, Harvard professor Michael Klarman laid out a radical agenda to change the system to guarantee Republicans "will never win another election." However, he warned that "the Supreme Court could strike down everything I just described." Therefore, the Court must be packed in advance to make these changes possible. None of this is possible with a Republican in the White House.
The Democrats know that they are unlikely to attain a veto-proof majority. They need to get a president who will help pack the Court, add states and make fundamental changes to the constitutional system.
That goal may now be attainable.
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With a slew of new Democratic governors, Democrats believe they may have enough states to sign on to a compact to effectively nullify the Electoral College.
The Framers saw the Electoral College as a way of protecting small states from being overwhelmed by high-population states. It was designed to get presidents to take the interests of small states seriously and to protect political minority populations.
The Framers saw the College as a way of protecting small states from being overwhelmed by high-population states. It was designed to get presidents to take the interests of small states seriously and to protect political minority populations.
In my book, I raised the increasing importance of the Electoral College and other protections for small states and minority political groups in our system. I was a late convert, and I previously criticized the College for producing elections in which candidates won the majority vote but lost the electoral vote. I still share those reservations with a majority of Americans, who are polling at 58% in favor of electing presidents by popular vote.
I still believe that a president elected by less than a majority of the public is deeply problematic. This is not, however, the time for such a change, and, if anything, the push for direct democratic reforms only reaffirms the judgment of the Framers that this is an important limitation for the nation.
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The direct democratic reforms being pushed by professors and pundits risk destabilizing our constitutional system. Many on the left want to unleash more direct democratic power, including calls by groups like the Democratic Socialists of America (DSA) to eliminate the Senate, the Supreme Court and the presidency. The nullification of the College is part of the direct-democracy movement.
Witnessing this movement, along with the support of establishment figures, I changed my mind about dumping the College as part of a package of reforms that could fundamentally change our republic.
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With one-party control in states like Michigan, Nevada, Pennsylvania and Wisconsin, the party is ready to get states to join the National Popular Vote Interstate Compact. Under the compact, states agree to give all their electoral votes to the presidential ticket that wins the national popular vote.
The constitutionality of the compact has obviously not been tested. There are compelling arguments that such a constructive amendment of the Constitution is unlawful. The Supreme Court has described the constitutional system as creating a "finely wrought" system of procedures designed to preserve a balance of powers and avoid both the concentration of power and majoritarian abuse. The compact is designed to avoid the Article V amendment process precisely because its advocates know that they would have a difficult time securing such a change to our Constitution.
George Washington University law professor and Fox News contributor Jonathan Turley new book, "Rage and the Republic" was published on February 3, 2026. (FNC)
Ten years ago, I would have applauded this effort. Now I am deeply concerned.
We are in the midst of a national fever as politicians fuel the rage of citizens. Yet, the greatest danger to our republic is found in those establishment figures encouraging Americans to abandon constitutional values and institutions as "nostalgia" and condemning those who seek only "incremental" changes.
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In "Rage and the Republic," I explore these changes in both a historical and contemporary context. It is a book about revolutions and how they can consume those who start them. It is a history that resonates more deeply as new far-left members of Congress promise "revolutionary" change, including those supporting the DSA agenda.
Many current proposals from liberal politicians and pundits are strikingly similar to those of the Jacobins in the French Revolution. Both the American and French revolutions arose during the same period, but one became the world’s oldest and most successful republic, while the other became a blood-soaked tyranny known as the Reign of Terror.
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The Jacobins, who were composed of radical journalists, writers and lawyers, pushed for the same unicameral system and direct democratic measures that many are now advocating. Even figures such as Thomas Paine, one of two figures who played a significant role in both revolutions, supported such measures to allow for more direct democracy. He later came to regret some of those views as the French Revolution became the bloodbath known as "the Terror."
The New Jacobins are seeking to pursue the same disastrous reforms.
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The Framers rejected this approach and warned future generations against adopting such direct democratic measures. Benjamin Rush, a signatory to the Declaration of Independence, referred to it as democracies becoming "mobocracies."
We are now toying with the very elements that could produce the mobocracy that the Framers sought to avoid. There are good-faith reasons for converting the presidential election to a popular-vote election. However, with the assault on our constitutional values and traditions, citizens cannot afford to ignore a broader agenda unfolding in the wake of the midterm elections.
