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My colleague Trent England wrote an excellent post on a unique problem of the National Popular Vote interstate compact (NPV): its reliance on the cooperation of non-member states – cooperation that may not be forthcoming. 

I’ve pointed out for years that it isn’t just obstinance and deliberate sabotage that will be a problem (though there are no shortage of intentional ways for states to cause problems for NPV). It is also simple things like delayed certification of election results or even the normal processes states follow in appointing electors that can cause problems. 

For example, if a non-member state was late with its official results, members of the compact would have some tough choices to make. Do they rely on whatever unofficial results may be available? Do they try to estimate what the vote totals are, using whatever method they deem appropriate? Do they just ignore that state and exclude its voters from the national vote count? Nobody knows – NPV lobbyists once testified that they would estimate vote totals if official results weren’t available, but more recently the NPV organization has memory-holed this, now claiming “There is nothing in the NPV Compact that authorizes anyone to estimate vote counts.”

It is not a hypothetical or implausible scenario for a state to not have official results available by the time the compact needs them – at least six days before the Electoral College meets. If NPV had been in effect in 2024, there would have been a West Virginia-sized hole in the national vote totals for each candidate. This is because West Virginia did not certify its results until the day before the electors met, which is five days after NPV states would have needed them. The state did prepare and submit its Certificate of Ascertainment by the deadline, but did not make that document publicly available.

Each election cycle has something – or a few somethings –that prompts the question “What if this happens again, but NPV is in effect?” And each time that question is asked, it becomes more and more obvious that the compact is not going to work as advertised and, in a close election, is likely to spark an epic political, legal, and constitutional crisis because NPV’s answers, or lack of answers, just create more questions.