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Dangerous gaps” in NPV Compact

Sean Parnell - Jun 09, 2020

Threats

“Unintended and unforeseen consequences.” “Electoral crisis.” “Dangerous gaps.” These are the sorts of terms I commonly use when I explain NPV to state legislators and others. That one of the law professors who originally developed the NPV concept is saying the same things suggests this compact is simply not ready to be implemented as written, and would trigger an electoral meltdown if it were.

It’s no stretch to call Vikram David Amar, who is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law, one of the “intellectual Godfathers” of the National Popular Vote interstate compact (NPV). Back in 2002, Amar and his brother (Akhil Amar, also a law professor) wrote an article explaining that, as an alternative to abolishing the Electoral College through a constitutional amendment, states could instead join an interstate compact awarding members’ electors to the winner of what they called the “National Presidential Vote.”

So it’s worth noting when Professor Amar starts pointing out the serious problems with the actual NPV compact that has been written and passed in several states. In Florida recently to promote adoption of NPV, he made the following comments in an interview with a local NPR station:

“One of the things that I think should be done, that would need to be done, after enough states sign onto this but before it goes into effect – there should be some standardization of the balloting process, and the counting process, so we can get a reliable national tally.”

That kind of overhaul would take time. For that reason and others, Aram [sic] wants his plan to have a delayed implementation.

“I’ve advocated for states to adopt this idea, but defer implementation until say 2032. So, Florida would adopt it today, but say ‘our adoption takes effect when you get to 270, but no earlier than 2032,” Amar said. “That would both give Congress time, in the meanwhile, to iron out any logistical wrinkles of the kind that you just mentioned…”

His remarks echo those of he wrote earlier this year in an article at Justia.com (which is similar to what he and his brother first wrote in their original 2002 article; emphasis added):

“…The most plausible and legitimate reason not to move in the direction of NPV is not the innocent underpinnings of the electoral college; it is the fear of unintended and unforeseen consequences. The electoral college, while far from perfect, has served the nation reasonably well, and change always brings the risk of glitches.

"But here too, the deferred implementation approach I advocate for gives all the signatory states—and also, importantly, Congress—time to smooth out some of the rough spots in the current NPV compact details. In particular, substantial nonuniformity among the states in the national vote count on the questions of who votes, how the votes are cast, and how they are counted and recounted undermines the normative appeal of the move to a national popular vote, and it raises the specter of electoral crises that can and should be avoided. My brother and I noted—indeed highlighted—this problem when we first analyzed the idea of state-level nonconstitutional movement towards direct election almost two decades ago…

"The drafters of the NPV plan in play today did not take our advice in this respect; they did not build into the plan uniform rules of voting eligibility, uniform presidential ballots, and an election dispute procedure. Nor did they delegate authority to do so to a nongovernmental commission. Nor did they affirmatively invite Congress to step in. To my mind, the most important issue surrounding the entire NPV movement as it approaches critical mass in the states and builds some support on Capitol Hill—and the issue on which thoughtful analysts ought to be focused—is how Congress, in the course of approving the Compact or in adopting a freestanding statute, might fill in the dangerous gaps in the NPV design. If and when the NPV comes into being, I would forcefully urge Congress to supplement it with a system of uniform rules for tallying sentiment in all fifty states.”

“Unintended and unforeseen consequences.” “Electoral crisis.” “Dangerous gaps.” These are the sorts of terms I commonly use when I explain NPV to state legislators and others. That one of the law professors who originally developed the NPV concept is saying the same things suggests this compact is simply not ready to be implemented as written, and would trigger an electoral meltdown if it were.