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A recent post by Trent England explained some of the problems with the approach advocated by lobbyists for the National Popular Vote interstate compact (NPV) when it comes to how disputes or disagreements over how to interpret and execute the compact should be resolved. 

As he noted, NPV (unlike other interstate compacts) does not create a commission or agency that might ensure each member state fulfills the compact’s requirements in the same way or even picks the same winner. Instead, NPV’s lobbyists typically claim that if there’s a dispute, the courts will figure it out.

Trent’s post reminded me that this is not a new issue and, for those who prefer not to hand the election outcome over to judges, not a new concern. Back in 2014 in Connecticut, a Democratic state legislator, Brian Becker, expressed similar concerns in testimony against NPV. He had identified a couple of technical defects in the compact that “…could create uncertainty for the chief elect[ion] officials of member states who are charged with certifying the presidential election” and “…could disenfranchise the voters in those states who join the compact.”

According to Representative Becker, after he raised his concerns with lobbyists for NPV he was told “…we cannot change the bill because 9 or 10 states have already passed it “as is” and it would be too hard to get them to change it” and that “…the courts would have to resolve the issue…” He concluded “I do not think we should pass legislation we know in advance is defective in the hopes that a court will later be able to solve a problem we could not.”

Exactly right, especially given that it isn’t clear that courts would be able to untangle all of problems NPV would create. Nor is it clear that litigation could resolve issues within the very tight timeline for states to appoint their presidential electors on time.