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Whether one likes or dislikes the Electoral College—or the concept of a national direct election—should not distract from considering the actual terms of the proposed National Popular Vote interstate compact. Would it work? Does it even make sense? These are foundational questions, particularly for legislators considering it.

It’s a basic fact of presidential elections: voters cast votes for presidential electors. Yet the NPV compact stumbles right here. Let’s break it down.

Article II of the compact says (in full; emphasis added): “Each member state shall conduct a statewide popular election for President and Vice President of the United States.” So … is this a new election? Does this override the Constitution, in Article II and the Twelfth Amendment? Or is this just some kind of messaging?

The last clause in the compact defines a “statewide popular election” as “a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.” Earlier in the definitions, it explains that a “presidential slate” is “two persons” running for president and vice president. So, every state that enacts the compact creates a legal obligation for it to allow voters to vote directly for president and vice president, rather than for electors, although what that means is unclear.

The common assumption seems to be that this election is still a vote for presidential electors, even though, in NPV states, the statewide total will be combined with other states’ totals in order to choose that state’s electors. But we know what they say about assumptions…. The compact claims, nonsensically but in its plain text, to require member states to hold an election directly for president and vice president. 

It gets worse. Here’s the first paragraph of Article III of the compact (arguably it’s most important provision; emphasis added):

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.

As noted above, perhaps states in the compact will, in some sense, hold an election “for each presidential slate.” But no state not in the compact will hold (and no state has ever held) an election where voters cast votes for presidential and vice-presidential candidates.

The NPV compact reiterates the problem by its repeated reference to “a statewide popular election,” the term it defines as a direct election for president and vice president.

The most conspiratorial interpretation here is that the NPV compact is trying to create a presidential election where only popular votes cast within NPV states get counted by NPV states. Lobbyists for NPV deny this. In a forward to NPV’s massive, self-published book, Saul Anuzis claims the compact “would guarantee the presidency to the candidate who receives the most popular votes in all 50 states.”

Further in that book (at pages 263-264), it insists that “the purpose of the compact is to achieve a nationwide popular vote” but then notes that NPV states can only count votes “from non-member states if there are popular votes available to count.” It goes on to provide unlikely examples of how that might happen without noting that there are simply no popular votes for president at all.

Perhaps NPV’s drafters are trying to be clever and exclude non-compact states, but it seems more likely that whoever drafted the compact just didn’t take seriously the legal processes involved in presidential elections. Like it or not, voters cast votes for presidential electors. Even if those electors are not named on the ballot, they are the ones being elected. They are the ones the votes are for. That would still be true in NPV states if the compact took effect, since all the compact does is try to rig the Electoral College by changing which presidential electors get elected. 

Debates over constitutional and philosophical questions seem destined to distract from the mundane flaws in the National Popular Vote interstate compact. Yet for state legislators in particular, the text ought to matter. Whether the compact makes any sense certainly ought to matter—and on the basic question of who gets votes on Election Day, the NPV compact seems desperately confused.