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One of the key weaknesses of the National Popular Vote interstate compact (NPV) is that member states are supposed to obtain the vote totals of every state that holds a “statewide popular election,” but non-member states are under no obligation to cooperate. In fact, non-member states may, either intentionally or unintentionally, sabotage the compact if their certified vote totals are not public by the time the compact needs them, which is six days before the electors meet.

Lobbyists for NPV have long argued this is impossible because federal law requires that every state make official results available by the same date the compact would need them. Most recently they have taken to claiming that the Electoral Count Reform Act (ECRA), passed in 2022, solves this problem because it created a process for presidential candidates to sue in federal court and force a tardy or obstinate state to produce vote totals.

There are multiple errors in NPV’s claims, but I will focus here on the timing problem: by the time a candidate might file suit and (maybe) get a favorable court ruling, it would be too late for member states to use whatever vote totals might be made public.

Consider the timeline in 2024 if NPV had been in effect. The electors met on Tuesday, December 17, making Wednesday, December 11, the deadline for compact member states to have results from all the other states, allowing them to aggregate vote totals from all the states and appoint the elector slate pledged to the candidate deemed to have received the most popular votes nationally. 

But as I wrote a few days ago, in 2024 there would have been a “West Virginia-sized hole in the national vote totals” because that state had not, by December 11, certified its statewide canvas or made its Certificate of Ascertainment (the document naming the appointed electors and that includes vote totals) publicly available.

According to the NPV lobbyists’ theory, this isn’t a problem because of the process established by ECRA – at this point one or both of the candidates would step in and file a lawsuit to force West Virginia to comply with the federal deadline (the state actually had complied because it submitted its Certificate of Ascertainment by the deadline, but for the sake of argument let’s suppose it hadn’t done that either). 

Here’s the timing problem: this lawsuit can’t be filed until the deadline has passed. If a candidate went to court to try to file a lawsuit the morning or afternoon of December 11, the judge would tell them something to the effect of, “West Virginia isn’t late yet, come back after midnight tonight and if at that time it hasn’t done what it’s supposed to, you can file.”

Which is a big problem for NPV states because the compact does not exempt member states from the federal deadline for appointing their own electors. A lawsuit filed the next day, and which might not be resolved for a few more days, does them no good.

It’s not clear what compacting states would do in this circumstance – based on what NPV lobbyists have said and written in the past they might use unofficial or estimated vote totals for West Virginia, or calculate the national vote winner without any votes from West Virginia. Neither sounds like a great option, and both are far removed from the idea promoted by NPV’s lobbyists that the compact can easily, accurately, and conclusively determine national vote totals for every candidate and name the right winner.