Defending the Electoral College since 2009
One of the biggest problems with the National Popular Vote interstate compact (NPV) is that states might try to pull out of the compact after Election Day or find another way to circumvent it if they don’t like the way things worked out.
For example, if Tennessee were in the compact and the state’s voters went overwhelmingly for the Republican candidate while the national vote count favored the Democrat, would Tennessee honor the compact and appoint Democratic electors? Would the state legislature intervene and appoint Republican electors? Would a state judge conveniently find after the election that the compact violated the state Constitution and order the appointment of Republican electors?
Lobbyists for NPV as well as several pages in their self-published book, Every Vote Equal, generally answer these sorts of questions with an emphatic “no.” (See: Myths About Post-Election Changes in the Rules of the Game, Withdrawal, and Enforceability, pp. 517 – 557). And it’s easy to understand why that has to be their answer – without the assurance that there will be no post-election shenanigans, it would be impossible to persuade states to join the compact.
The arguments on this topic in Every Vote Equal range from somewhat plausible to fairly unconvincing (when you cite a dissent to support your argument that the U.S. Supreme Court has held that a compact is a contract, well, that’s not really how that works).
But that’s for another blog post. Right now I’m just wondering… do NPV’s lobbyists really agree that post-election shenanigans can’t happen under the compact? Consider this from Every Vote Equal (p. 519):
Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face because the Constitution gives Congress the power to establish the day for appointing presidential electors and existing federal law allows presidential electors to be appointed only on one specific day in each four-year period (namely, the Tuesday after the first Monday in November).
Now, consider this from a December 2020 article in Slate, quoting one of NPV’s lead Republican lobbyists discussing then-President Trump’s efforts to get Biden slates tossed out in several states:
“It’s not a coup if you follow the law. If you follow the Constitution that’s just following the law,” Ray Haynes, a Republican lobbyist for National Popular Vote, told me last month in response to Koza’s characterization of Trump’s efforts as a coup attempt… Haynes … told me that if he were in a contested legislature, he would vote to give Trump the state’s electors.
“The winner of the election has a lot of power for a short period of time so there’s a lot at stake,” Haynes argued, endorsing Trump’s push to have state legislatures overturn the election. “Dr. Koza agrees that state legislators can do this if they wanted. I would argue that they’re just following the Constitution.”
(Koza is the founder and chairman of National Popular Vote, Inc.)
That sounds to me an awful lot like someone who believes state legislatures can, in fact, decide after a presidential election that they have the power to reject the outcome and appoint a different slate of electors.
Saul Anuzis, another of NPV’s lobbyists, signed a letter endorsing the same idea:
The evidence overwhelmingly shows officials in key battleground states—as the result of a coordinated pressure campaign by Democrats and allied groups—violated the Constitution, state and federal law in changing mail-in voting rules that resulted in unlawful and invalid certifications of Biden victories.
There is no doubt President Donald J. Trump is the lawful winner of the presidential election. Joe Biden is not president-elect.
Accordingly, state legislatures in the battleground states of Pennsylvania, Arizona, Georgia, Wisconsin, Nevada, and Michigan should exercise their plenary power under the Constitution and appoint clean slates of electors to the Electoral College to support President Trump.
Again, that sounds like someone who believes the Constitution permits state legislatures to appoint electors well after election day if they don’t like the outcome or think it wasn’t fairly achieved, contrary to what NPV’s lobbyists have spent the last fifteen years telling state legislators. Interestingly, the letter Anuzis signed onto uses the exact same term, “plenary power,” that he and other NPV lobbyists routinely use to claim the compact is constitutional.
State legislators throughout the country have been assured by NPV’s lobbyists that the compact is ironclad and there can be no post-election day shenanigans, no possibility of a state legislature trying to appoint presidential electors if they don’t like how things turned out under the compact. Based on two NPV lobbyists’ positions favoring appointment of Trump electors in states Biden won, it seems like there ought to be some questions asked about just how ironclad they really believe the NPV compact is.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 76% of the way to implementing their dangerous plan.