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Reapportionment and the instability of the NPV compact
Trent England • Jan 26, 2021

There are multiple drafting flaws within the National Popular Vote interstate compact (NPV), which attempts to nullify the Electoral College by giving away states’ electoral votes to create an ad hoc direct election for president. One flaw is especially obvious this year, as the census results in the reapportionment of congressional seats among the states. Should the NPV compact ever take effect—or come close to its 270 electoral vote trigger—this process could inadvertently change the rules in presidential elections.

The Constitution requires a census every ten years in order to determine the population within each state and then reallocate seats in the House of Representatives accordingly—a process known as reapportionment. It also results in power being reallocated in the Electoral College because a state’s electoral votes are based on its seats in Congress.

Consider that the NPV compact has, over the last 15 years, passed in 15 states and the District of Columbia. Right now, those jurisdictions have 196 electoral votes. But within a few weeks, that number will change. Like many “blue” states, four NPV states have lost population relative to other states and thus each will lose one congressional seat. Two other NPV states will each add a seat. This means that together, NPV compact states will lose two electoral votes this year.

Now imagine the year is 2031, a decade from now, and NPV has added seven states to put the compact at 272 electoral votes. The presidential election is next year, candidates are announcing and building their campaigns. The 2030 census is a hotly contested political item, with partisans threatening lawsuits or action in Congress to change the outcome. The whole process may be drawn out for months or years, and depending on who wins, NPV could lose three or four electoral votes and thus be deactivated. Some candidates think that would help their chances, others assume a direct election favors their big-city base.

What does the NPV compact say about such a situation? Nothing. There are no provisions for how reapportionment might affect the compact, or to guide judges when litigation might affect whether the compact is or is not in effect. The rules of a presidential election could be in doubt during the campaign and the compact offers nothing, and thus leaves everything open to speculation or the whims of state and federal judges.

Partisan state officials would surely try to game the system. They might try to game the census timeline to benefit their party. They surely would interpret the NPV compact in whatever way benefits their preferred candidate. The census process just wrapping up was highly political and resulted in lawsuits that reached the Supreme Court—imagine if so much more was on the line.

This is just one of the failures of the National Popular Vote interstate to provide clarity or guidelines for serious political and legal disputes. Changing the rules of presidential elections is a major undertaking sure to have unintended consequences. Changing these rules in an attempted end-run around the Constitution, with little debate about the details of the plan, is playing with fire.