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My first post in this series about flaws and blind spots in John Koza’s NPV interstate compact addressed its reliance on cooperation from non-compact states. Usually, Koza’s lobbyists try to dodge the issue in a flurry of handwaving. But sometimes they do offer a substantive response: compact states can simply disregard uncooperative states.

This response rests on a troubling but necessary premise for NPV. If their legal arguments are correct, compact states could ignore all other states—and all their voters—in choosing the president. After all, if the compact took effect, those states would control a majority of electoral votes and thus the outcome of the election. If they choose to consider voters in other states—again, according to NPV’s dubious constitutional claims—that is an act of magnanimity, not a requirement.

I suspect NPV lobbyists are reluctant to point this out because it draws attention to one reason why the compact, if legal at all, must at least require congressional consent according to the Constitution’s Compact Clause. It represents a group of states banding together to take power for themselves. That affects the balance of power among the states, and thus makes NPV exactly the sort of interstate compact that cannot take effect without congressional consent.

Setting aside those legal issues, this is an area where NPV advocates have a dangerous lack of imagination. They seem to believe the only thing non-compact states could do is withhold election returns (making those states easy to ignore, as they’d appear to be “asking for it,” as they say). There are many other options. And here, NPV runs into real trouble.

According to the compact, NPV states “shall treat as conclusive an official statement” of election returns from other states. So no discretion, right? That’s the claim of NPV lobbyists when they want to portray the process as mindlessly simple. NPV states must accept whatever a non-compact state reports as its results then? No matter what? The problem here is obvious.

The simplest recourse for anti-NPV states would be to report votes for a presidential slate as a vote for each presidential elector on that slate. In Oklahoma, that would mean that each voter is casting seven votes. Instead of Donald Trump receiving 1,020,280 votes in Oklahoma in 2020, the state could have reported the total as 7,141,960. What then would NPV states do?

If NPV state officials have no discretion, they must record Oklahoma’s inflated total. If they have discretion … that opens a massive can of worms. More on that in my next “NPV Compact Quirks” post.