Walter Olson
On April 13, Gov. Abigail Spanberger signed a bill making Virginia the eighteenth state to adopt the National Popular Vote Interstate Compact (NPVIC), under which participating states and the District of Columbia agree to award all their electoral votes to the presidential ticket with the highest popular vote, whether or not that ticket carried their own state. The compact, by its terms, does not go into effect unless enough states sign up to reach the 270 electoral votes needed to elect a president; Virginia brings the current total to 222, so it’s beginning to look kind of close.
States need to be cautious about the uncertainties that NPVIC would bring. That’s even though developments in recent years—specifically, the successful 2022 passage of the Electoral Count Reform Act (ECRA), in which Cato scholars were involved—do work to close off some of the dangers of chaos and mischief that critics of the scheme have foreseen.
Writing in this space in 2021, Andy Craig argued that the NPVIC was fatally flawed and could precipitate a constitutional crisis because of uncertainties it left open as to how and by whom votes would be tabulated and reported in final form. The passage of ECRA the next year, together with improvements in other areas, reinforced states’ obligation to report a popular vote total for each ticket, heading off one potential avenue for sabotage. It also addressed other scenarios, such as “rogue governor” and “rogue secretary of state,” that could cause trouble under both the existing electoral college arrangement and NPVIC.
All of that helps, but it doesn’t clear up all the uncertainties about the adoption of NPVIC. To begin with, a national administration out of sympathy with the compact, if backed by a compliant Congress, could push to undo the elements of existing federal law that align with NPVIC’s operation. A bigger concern is the compact’s failure to specify methods of dispute resolution. While everyone expects the answer, at some level, will be “the federal courts,” there will be odd asymmetries in the legal status of ratifying and nonratifying states. Because the latter owes no obligation to the compact, it cannot be invoked in court to require them to engage in a presidential recount.
My guess is that if the compact gets across the finish line, the politics and incentives involved will soon result in intense pressure for standardized national protocols for recounts and numerous other elements of election administration that enter into presidential ticket popular vote tabulation, such as ballot qualification requirements. If we’re lucky, a sober Congress embarking on the resulting centralization would try to respect the various constitutional constraints; if we’re not, a president might irresponsibly begin issuing executive orders. Either way, the pressure for uniformity and standardization would almost certainly result in a big leap forward for federal power and a retreat for states in their historic role, notwithstanding rhetoric from compact fans about the states leading the way.
I’ve written previously about why the electoral college is such a durable institution and how it works to cabin fraud and misconduct. More Cato commentary on the Electoral College from Robert A. Levy (and more), John Samples (and more), Roger Pilon (Framers “were no friends of direct democracy”), Ronald Rotunda (“prevents candidates with only regional appeal from winning”), and podcasts with Levy, Samples, and author Emily Conrad.
