After the Midterms: The Supreme Court and Electoral College Questions Analysts Are Raising
Most of the conversation after Tuesday’s midterms has been about who won Congress. Some analysts who study political power are looking at two other questions: what a change in Senate control could mean for the future of the Supreme Court, and what recent state-level results could mean for the Electoral College. This post summarizes those arguments and the sources behind them. It is analysis of what others are saying, not a prediction and not legal advice.
The Supreme Court Question
The Supreme Court currently has a six-to-three majority, and that majority exists because a Republican Senate confirmed the nominees President Trump sent. The analysis points out that the Senate that confirmed them will be replaced in January, and that the Constitution does not require nine justices. It also notes that in 2016 the Senate declined to give Merrick Garland a hearing for nearly a year.
Justice Thomas is 78 and Justice Alito is 76. According to Bloomberg Law (“Trump’s Ability to Shape Supreme Court Impeded by Midterms”), the midterm results could limit the President’s ability to fill any vacancy. Justice Alito said in a Bloomberg interview last month that he intends to stick around through this term. The argument is that if a seat opens after the new Senate is seated, a Senate majority of the opposing party could leave it unfilled for as long as it chooses, and that the balance of the Court could change depending on which party holds the Senate and the presidency later. Reporting earlier this week indicated some Senate races were still being counted, so seat totals should be treated as preliminary.
The Electoral College Question
Eighteen states and the District of Columbia have joined the National Popular Vote Compact. Under it, once member states hold 270 electoral votes, all of their electors would go to the winner of the national popular vote. Members currently hold 222 electoral votes.
According to Axios (“Democrats’ midterm gains could sideline Electoral College by 2028,” November 4, 2026), Democrats won the governor’s office and both legislative chambers in Pennsylvania, Michigan, Arizona, Wisconsin, and Nevada, which together account for 61 electoral votes. The analysis argues that this could put the compact within reach of 270 for the first time in its roughly twenty-year history, if legislation passes by July 2028 and the compact survives any court challenge. Twice this century, in 2000 and 2016, the candidate with fewer popular votes became president. Supporters say the compact would end the outsized role of a handful of swing states, because a vote in any state would count the same as a vote in any other. The compact’s text and list of members are available at nationalpopularvote.com.
What This Means for Federal Employees
Nothing described here changes your rights, your pay, or your appeal options today. Federal employment law is shaped in part by what courts decide, so the makeup of the courts is worth watching over time, and these are possibilities analysts are discussing, not outcomes.
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Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.