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The Virginia legislative session began this week, a whirlwind set to conclude in just two months (on the Ides of March, no less). On cue, House and Senate bills were introduced that would void Virginia’s voice in presidential elections in the name of a “National Popular Vote.” Thankfully, many Democrats and all Republicans seem to understand the dangers of this unusual interstate compact.

The U.S. Constitution says that presidential electors represent states, and each state’s legislatures decide how to select them. The NPV compact takes the broadest interpretation of this power, in an attempt to destroy its purpose. The compact asserts that a state legislature can do whatever it wants, even denying representation to its own state’s voters. The compact would change state law so that presidential electors are chosen based on that state’s determination of the nationwide popular vote results.

The NPV compact only takes effect if joined by enough states that they together control a majority of electoral votes (270 of 535). At one time, this meant that state legislatures considering the compact could assume that it would not take effect, not anytime soon. Since 2007, 17 states have joined NPV, with 209 electoral votes. 

Virginia would push NPV dangerously close to taking effect. This makes it even more important for legislators to ask basic legislative questions. Is it legal? Would it work? What are possible unintended consequences?

Is NPV legal?
Can a constitutional power be used to destroy its purpose? Probably not, but there has never been anything like NPV before. Can a state use votes from other states to choose state officials (in this case, electors)? Again, no state has ever tried such a thing, so there is no case law. Can a state create an election where voters are under different sets of rules (because they are in different states)? This does seem to violate Supreme Court precedent that requires counties within a state to have uniform rules.

Would NPV work?
The compact relies on the discretion of the chief election official in each compact state, and also on non-compact states to go along. Unlike most multi-state compacts, NPV does not create a commission or any other way of deciding disputes. It has no provisions for close or contested elections or for recounts. NPV might work if everyone involved in an election operates in good faith, and assumes that everyone else is operating in good faith. Otherwise it creates many new opportunities for distrust and manipulation.

Even if NPV did work, it would mean that state voters no longer choose their own presidential electors. The voice of Virginia would be lost. That is the best-case scenario. Beyond that, NPV means state and federal litigation, uncertainty, and even more ways to cast doubt on, and in fact manipulate, the presidential election process.