Virginia signs national popular vote bill into law, joining interstate compact with 17 other states and District of Columbia
A national majority vote for president is one step closer to reality after the Virginia governor, Abigail Spanberger, signed the national popular vote bill into law, joining an interstate compact with 17 other states and the District of Columbia.
Under the National Popular Vote Interstate Compact, states would assign their presidential electors to the winner of the popular vote, regardless of the results within the state. The compact takes effect when states representing a majority of electoral votes – 270 of 538 – pass the legislation and thus would determine the winner of the presidential contest. With Virginia, the compact now has 222 electors.
Every state that has so far enacted the compact has Democratic electoral majorities, including California, New York and Illinois. But legislation has been introduced in enough states to reach the 270-elector threshold, including swing states like Arizona, Michigan, Nevada, New Hampshire, Pennsylvania and Wisconsin.
It seems pretty cut and dry to me. It gives absolutely no guard rails, limits, directives, or even suggestions as to how those states’ legislatures may appoint Electors. They can do it “in such manner as [they] may direct”. The states have the latitude to decide how to assign and direct their Electors however they see fit.
It’s already enough latitude that different states at different times have decided A) to give an elector to the winner of each district and two to the winner of that statewide winner, B) to give them all to the statewide winner, C) to have the legislature decide without a popular vote, and D) to hold a state vote and then ignore it anyway and let the legislature decide instead. And 13 states, still, fully allow individual “faithless” Electors to vote against their assigned/pledged candidate, and only 14 states will actually void and replace the electors who misplaced their vote (the other states where it is disallowed just give them a fine or criminally charge them but still let their vote stand)…
If that’s the kind of latitude that is already settled law, then it would be absolutely insane to draw the line at assigning Electors on the will of the whole nation, i.e. of the entire body of people who has a pony in this race, and based on a compact that the states representing the majority of Americans agreed upon. It doesn’t disenfranchise anyone, the current system does that.
I’m sure that it will be challenged. But there is absolutely no legal justification to overturn it.
The compact presumes that the individual states officially publish their popular vote count prior to the EC vote count. An unaffiliated state (or multiple states) can unilaterally declare that they will not officially publish their popular vote count until after the EC meets. The members of the compact cannot provably know the popular vote count; they cannot provably know that they will be casting their votes for the winner of the national popular vote, as required by the compact.
That theoretical possibility is sufficient justification to overturn the whole compact.
Further, if there is every a scenario where the compact actually changes the outcome of an election, any state that would be forced to switch its EC vote will see their populace pushing for immediate withdrawal from the compact, before the EC can even meet. They will have legislation drawn up and ready to sign on election day, releasing their electors from the requirements of the compact.
As a theoretical exercise, the compact is interesting. As a practical alternative to the EC, it utterly fails.
In such cases as the popular vote cannot be determined, or should enough members withdraw such that the majority of Electors no longer fall under the compact, the states can just fall back to their previous methods for determining their elector distribution. That’s already established in the compact for the latter case, if I recall, though I don’t know that they’ve a specific provision for another state not publishing their popular vote count. But regardless, worst case scenario, it can just default back to how it already is now.
That would cause the compact to be ineffective, certainly, but still not constitutionally unsound or illegal.
But even that isn’t really a true limitation. If they wanted to, they could also just decide to only consider the officially published vote counts of all the states that choose to report it to keep any rogue states from holding the compact hostage. Or they could even just only count the votes of those states in the compact if they so collectively chose, to. I doubt they would, but they could. Again, they have unbound latitude here. Hell, if they were so inclined they could collectively decide to elect the president with the first name in alphabetical order. What’s to stop them?