The 2020 presidential election was filled with chaos, controversy and crisis – particularly the post-election period. Want to make 2024 even worse? Enact the National Popular Vote Interstate Compact (NPVIC).

The premise behind NPVIC is straightforward and simplistic: rather than the voters of Pennsylvania choosing their electors, the state would instead hand over the decision to the rest of the country, and award its electoral votes to the candidate deemed to have won the most popular votes nationally – even if Pennsylvanians voted for a different candidate.

There are an enormous number of problems with NPVIC, including that it upends the Constitution’s carefully-crafted system of checks and balances and that it is very badly designed and written.

In 2024 or any later presidential election, NPVIC would create even more chaos, controversy and crisis, largely because there is no official, accurate, uniform and timely national vote count.

How votes are cast and counted varies by state and could cause significant problems under NPVIC. For example, Alabama voters in 1960 could vote for individual electors and six of the eleven Democratic electors were also unpledged (they ultimately voted for Sen. Harry Byrd of Virginia, rather than Democratic nominee John F. Kennedy). Modern accounts generally ignore all this and credit Kennedy with winning the popular vote by about 113,000 votes, but uncertainty at that time over how to allocate Alabama’s popular vote meant that some credited Nixon with a popular vote win of about 60,000 votes (either way, Kennedy won the Electoral College and thus the presidency). There’s simply no obvious and indisputable way to allocate Alabama’s popular vote in 1960.

In 2024 or any later presidential election, NPVIC would create even more chaos, controversy and crisis, largely because there is no official, accurate, uniform and timely national vote count.

The uncertainty over who won the popular vote in 1960 is today little more than a historical curiosity, but under NPVIC a similar problem would be catastrophic. While it’s unlikely any state will do exactly what Alabama did in 1960, something known as Ranked Choice Voting (RCV) could pose a similar challenge under NPVIC.

Two states have passed RCV laws, which allow voters to rank multiple candidates. If no candidate receives a majority of first-place rankings, the voters who supported the last-place candidate have their votes re-allocated to their second choice. If need be, additional rounds of counting occur until one candidate has a majority.

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The biggest problem for NPVIC is that literally hundreds of thousands or even millions of votes for major party candidates could be erased if there is a competitive regional, third-party, or independent candidate on the ballot in states with RCV. In 1992 Ross Perot did not win a single electoral vote but finished second in two states and might have finished second in another if RCV had been in place. In those three states, the voters supporting the third-place candidate would have had their votes reallocated to one of the last two candidates, erasing at least 320,000 votes for Clinton and 206,000 for Bush if RCV and NPVIC had been in place in that election.

Another problem is that states don’t always report accurate vote totals. In 2012, New York’s reported election results were missing about 415,000 votes, and the vote totals of other states in recent elections have been off by thousands of votes as well. Under NPVIC, member states have to accept inaccurate, incomplete vote totals reported by other states.

In 2012, New York’s reported election results were missing about 415,000 votes, and the vote totals of other states in recent elections have been off by thousands of votes as well.

A full and fair recount under NPVIC would also be impossible because each state has different laws about when a recount is required or possible. Some states would conduct recounts while others would not; some would count the “pregnant chads” and late-arriving absentee ballots while others do not. It would be Florida 2000 all over again, except on a national scale.

NPVIC would lead to a flood of litigation over rejected absentee and provisional ballots in the event of a close national vote. The final number for 2020 won’t be known for a while but in 2016 about 1.1 million absentee and provisional ballots weren’t counted, and in 2018 there were close to 1.4 million not counted. If the margin between the candidates is close, a few hundred thousand votes or less, lawyers for the campaigns will be in local, state and federal courts across the country arguing which ones should be counted and which should be excluded.

Some advocates for NPVIC argue that national margins will be so large in most elections that there could be no dispute over who won even with all these problems. This ignores that in three of the last sixteen elections the margin was less than one percent (and the popular vote total in 1960 is still in dispute), and also that President Trump disputes Hillary Clinton’s 2.9 million popular vote margin in 2016. Does anyone really believe President Trump would not dispute Biden’s seven-million popular vote margin if 2020 had been run under NPVIC?

Even one of the law professors who developed the idea behind NPVIC recognizes the extreme danger if the compact is enacted as written. Pointing to the significant differences in how states cast, count, recount and report votes, Professor Vikram David Amar of the University of Illinois College of Law wrote last year that NPVIC “raises the specter of electoral crisis” if it goes into effect. His solution entails a federal takeover of elections to put Washington, D.C., in charge.

There is little doubt that the 2020 presidential election process was something of a mess. Pennsylvanians need to ask themselves – do we want 2024 to be even worse?

Sean Parnell is Sr. Legislative Director for Save Our States, an organization focused on defending the Electoral College. He can be reached at sean@saveourstates.com

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