The National Popular Vote Interstate Compact (NPVIC) has now been signed by 18 states and D.C., thanks to Virginia joining in April. If you are unfamiliar, the NPVIC is an agreement where states pledge to give their electoral votes to the winner of the national popular vote, not the winner of their state.
That would force the Electoral College to follow the popular vote. But for that to take effect, the compact needs enough states to join it whose total electoral votes add up to at least 270. Right now it’s at 222, so 48 votes shy. But suddenly, thanks to the recent election, five new states are now under full Democratic control or trifecta as Democratic governor, state House, and state Senate.
So you would only need four of those five states to join the compact for it to take effect. So if Pennsylvania and Michigan both join, then you only need any two of these three states.
So let’s say enough states join then. What happens now? Duh.
Article one, section ten of the Constitution says that states must get permission from Congress to make compacts with each other. But the Supreme Court has said in these cases that states only need congressional permission if the compact gives them power beyond what the Constitution allows. And very clearly, in article two, section one, the Constitution says that the power to choose how a state’s electors are appointed is a state power.
Now, the only other wrench here is this case where the court said that interstate compacts need approval from Congress, if the states that don’t join the compact would be harmed by the compact. So does that apply in this situation?
Long story short, I do think that if enough people pressure their lawmakers and governors in those five states that they will join the compact, but then there will be a lawsuit and it will be decided by the Supreme Court.
The question is, will the court follow 130 years of precedent and allow the compact to stand, or will it follow the newer ruling from 2018 and potentially strike the compact down?
Ben Sheehan is a political commentator and digital creator. He specializes in civics education, which is showcased in his latest book, What Does the Constitution Actually Say?: A Non-Boring Guide to How Our Democracy Is Supposed to Work. Check out his Substack, Politics Made Easy.
