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NPV Compact Quirks: No Provision for Disputes
Trent England • Aug 28, 2023

My last post in this series touched on the “dangerous lack of imagination” of NPV advocates. Many appear never to have thought about how other states can disrupt the compact. And NPV lobbyists often try to have it both ways, sometimes claiming that compact-state officials have absolutely no discretion, but other times arguing that the chief election official in a compact state can make decisions that could affect the results in a presidential election.

What would that look like? Let’s take an obvious example first. States produce different official election reports, which often have different vote totals. Usually the differences are small, the result of slow vote counting and timing, and cannot change the results. Still, different NPV states could easily use different results from the same non-compact states, producing different versions of national vote totals.

An especially contentious election, however, could produce more divergent totals. What if a Georgia politician accuses her opponents of massive voter suppression and tells her allies in NPV compact states not to accept Georgia’s results? Or what if an official in a compact state believes there were hundreds of thousands of illegal votes cast in Michigan or Pennsylvania? What happens if there is protracted litigation in one or more states, with contending claims about election results?

The NPV compact says states must “treat as conclusive an official statement” of election returns from other states. But as explained in my last post in this series, if that’s an absolute rule, then anti-NPV states can simply inflate their results to stymie the compact.

Manipulation might not have to come from an NPV state official. It could also come from an NPV state judge or federal judge who might issue an injunction against one or more compact states to alter how they treat returns from other states. The recently passed Electoral Count Act creates another danger: a special three-judge panel can overrule a state’s election results, creating yet another dueling set of “official statements” about a state’s election results. (And note that Congress could change the law again, and again, in ways that can upset assumptions made by NPV’s drafters when they wrote the compact nearly twenty years ago.)

The important point is that NPV gives states power over other states in ways that are entirely new. Compact states may find themselves at the mercy of officials or judges in other states, or facing uncertainty due to future court decisions or acts of Congress. John Koza and his lobbyists seem never to have considered how, in the real world of politics, disputes might turn into disasters and constitutional crises.