States consider preemptive measures against National Popular Vote

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States consider preemptive measures against National Popular Vote

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One of the biggest defects of the National Popular Vote interstate compact (NPV), as I’ve pointed out many times over the years, is that there is no official, accurate, uniform, or timely national vote count to conclusively declare a winner. Each state runs its own election—deciding who votes, how votes are cast and counted, and how results are reported. Anything that varies from the norm could cause problems for NPV as compact state officials attempt to count the votes from all fifty states plus Washington, D.C. And now some states are now considering ways specifically to thwart NPV.

It’s “how results are reported” that might cause the biggest problems. For years, advocates and lobbyists for NPV have claimed it’s a simple task to add together reported vote results from fifty-one different elections. As I wrote in a recent op-ed on the incompatibility of NPV with a system called ranked choice voting (RCV), it isn’t that easy.

One thing to keep in mind about the RCV problems for NPV is that it’s just a side effect of this type of voting. Maine and Alaska haven’t adopted RCV as part of an effort to thwart NPV, and it’s unlikely that any states will do so with that in mind.

But what if a state was deliberately trying to thwart the compact? Could they deny NPV compact states access to the vote totals they needed to operate? Last year legislation was introduced in New Hampshire, HB 1531, that would prevent the release of vote totals prior to the meeting of the Electoral College. Two more states, Mississippi and North Dakota, have similar bills this year (HB 1176 and SB 2271, respectively).

This legislation is specifically aimed at thwarting NPV. While the New Hampshire bill in 2020 didn’t make it very far, and the Mississippi bill from this year is already dead, they indicate a desire in several states to prevent NPV from operating as intended. Should the NPV compact ever come close to taking effect, no doubt these and other states would consider actually enacting such laws.

And holding back state popular vote totals is just one possibility. A state could selectively report popular vote data—perhaps reporting only the winner’s total in that state. Or states might let history be their guide and allow voters to cast individual votes for individual presidential electors. There is no legal question—states have done that before and retain power to do that in the future. But such an election would result in a massively inflated vote total for that state relative to other states. (In a state with seven electoral votes, the “popular vote” would be about seven times more than the number of voters.)

The fundamental flaw of the NPV compact is that it relies on the cooperation of non-member states, including those that strongly oppose NPV, to operate successfully. The NPV compact can do nothing to prevent other states from exercising their constitutional power to change election processes, even if they render the compact impossible to execute.