How to Defeat the National Popular Vote Interstate Compact

A key difference between conservatives and liberals is the way in which they handle a presidential election loss.  When conservatives lose a presidential election, they take a moment to lick their wounds, then use the rest of their time in the wilderness to examine, analyze, and strategize to win the next election.

Conversely, as many commentators have noted, and as liberals' behavior since Hillary Clinton's 2016 loss to Donald Trump has demonstrated, when liberals lose under the existing rules, they seek to change the rules, specifically, the Electoral College whereby the individual states choose the president, replacing it with a nationwide "popular vote."

It is obvious why liberals, whose political philosophy and preferences are anathema to much of the nation, would want to do this.  Eliminating the Electoral College means Democratic presidential candidates never having to say they're sorry to, or consider the opinions and values of, those ignorant, gun-totin', Bible-thumpin' rubes in flyover country.  That it would also destroy our federal system, transforming the 50 independent states into satraps of an all-powerful federal government is icing on the cake.

But if there is one thing on which liberals and conservatives can agree, it is that, the odds of convincing enough smaller states to cut off their own electoral cojones lies somewhere between zero and zilch.  So our ever-inventive (when it comes to disempowering their opponents) friends on the left have conjured up a Plan B, the National Popular Vote Interstate Compact:

The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia.

At last count, the total number of electoral votes among the states so far agreeing to the NPVIC is 189, with Ohio set to vote, soon.  But none of the so-called red states has approved the NPVIC, so it remains to be seen whether, ultimately, NPVIC proponents will garner the required number of states.  It also remains to be seen whether the NPVIC is constitutional.  NPVIC proponents typically support their argument by paraphrasing a portion of the Constitution in order to assert that the states "determine the time and manner of elections."  But their paraphrasing is incomplete.  And misleading.  Here is the precise language (Article I, Section 4, emphasis added):

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

So, the "Times, Places and Manner" language to which NPVIC proponents point applies only to senators and representatives.  The language for presidential elections appears elsewhere, in Article II, Section 1:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…

As Article II, Section 1, makes clear, when it comes to presidential elections, the states have just one power:  the power to decide how to choose their electors.  They cannot tell the electors for whom to vote.  Can our liberal friends have forgotten, already, their ples in 2016 for "Trump's electors" to eschew their pledges to vote for Donald Trump and vote instead for Hillary Clinton?

Bottom line, a state cannot "assign" its electoral votes to anyone, including the "popular vote" winner.  So, one way to thwart the "popular vote truthers" would be to make every effort to get "stealth constitutionalist" electors appointed, who will cast their votes for whichever candidate wins their state's popular vote.  Risky, but certainly worth a try; surely, there would be some electors, who would think twice before casting their ballot for a candidate whom their state's voters rejected.

But may the writer to suggest a quite possibly even better way to defeat the NPVIC?

The "popular vote" is a created concept a mere tidbit of trivia for the idly curious, having no place in, and as much relevance to the Constitution and our federal system of government as the number of holes in Blackburn, Lancashire.  The states' sole and absolute power, under the Constitution, over how they choose their electors, on the other hand, is very relevant.  To wit:  each state can use its popular vote to select its electors (but, again, cannot guarantee how their electors will vote).  But nothing in the Constitution requires a state to publish the specific vote total.

To understand how, and whether, such an idea could work, one need simply look at the real estate broker test this writer took to get licensed in New Jersey.  The writer passed his test (fortunately!)  But, to this day, does not know his actual score because New Jersey keeps the scores confidential and simply tells the applicant whether he passed or failed.

Nothing in the Constitution would prevent New Jersey from doing with its presidential elections what it already does with its real estate broker test:  announce the winner of New Jersey's popular presidential vote, but not the actual number.

So how about a state law making it unlawful to reveal the precise vote count sooner than 24 hours after the House of Representatives has counted the electoral votes and certified the winner?  The popular vote number would still be published for those curious to know it; it will just be published later, when the House has counted the electoral votes, declared a winner, and it is too late to be used for purposes of the NPVIC.  For how can a "NPVIC state" "assign" its electoral votes to the "winner of the popular vote" if it does not know what the popular vote is?

Obviously, the more the merrier.  But just a single state, the bigger, the better (Texas?), sealing its popular vote until the winner is certified could be enough to defeat the NPVIC and perhaps even make it pointless to continue to pursue the NPVIC at all.

Perhaps, taking inspiration from the NPVIC itself, two or more states could create their own "sealed popular vote" (SPV) compact that would take effect only if and when the NPVIC takes effect.

There is, however, one issue with the SPV concept we must address:  the occurrence of a "Florida 2000" situation, where a SPV state's popular vote is close enough to trigger a statewide recount.  One obvious solution would be to conduct any recount under seal, supervised by a judge or panel of judges.

And finally, to any NPVIC proponent tempted to dismiss the writer's SPV concept out of hand, let the writer point out an apparently unconsidered flaw in the NPVIC.  The nationwide Electoral Vote distribution typically changes with every census.  Surely, the brilliant minds behind the NPVIC have noticed the exodus of Americans from "blue" states to "red" states, such that after the 2020 census, some electoral votes will "shift" from blue states to red ones.  And, of course, at least so far only blue and "purple" states have enacted the NPVIC.  So, what happens to the NPVIC if interstate migration causes the "NPVIC member state electoral vote total to drop below the 270 electoral votes required to trigger the NPVIC?  Does a collection of states comprising only, say, 260 electoral votes continue to "assign" their electoral votes to the popular vote winner?  Does the NPVIC periodically go into and out of effect as the collective EV total falls below or rises to 270?