11.1  MYTH: A politically motivated state legislature could withdraw from the National Popular Vote compact after the people vote in November, but before the Electoral College meets in December.

QUICK ANSWER:

  • There are at least six separate and independent reasons why there should be no concern about the hypothetical scenario in which a Governor and legislature attempt—for partisan political reasons—to change a state’s method of awarding electoral votes after the people vote in November, but before the Electoral College meets in December.
  • The National Popular Vote compact permits a state to withdraw; however, it delays the effective date of a withdrawal until after the inauguration of the new President if the withdrawal occurs during the six-month period between July 20 of a presidential election year and Inauguration Day.
  • Any attempt to appoint presidential electors after the people vote in November would be unconstitutional on its face (and subject to summary judgment) because (1) the Constitution gives Congress the power to establish the day for appointing presidential electors, and (2) existing federal law requires that presidential electors be appointed on a single specific day in each four-year election cycle (namely, the Tuesday after the first Monday in November). Therefore, no state may appoint presidential electors after the results of an election become known (under either the current state-by-state winner-take-all system or the National Popular Vote compact).
  • Any withdrawal that purports to take effect between July 20 of a presidential year and Inauguration Day would be unconstitutional on its face (and subject to summary judgment) because it would violate the Impairments Clause of the U.S. Constitution which states, “No State shall … pass any … Law impairing the Obligation of Contracts.”
  • Any attempt to appoint presidential electors after the people vote in November would invalidate the “conclusiveness” of that state’s results under existing federal law specifying that presidential electors must be appointed under “laws enacted prior” to the single specific date set by federal law for appointing presidential electors (namely, the Tuesday after the first Monday in November).
  • The highly partisan maneuver of attempting to appoint presidential electors after the people vote in November could be executed, in practice, in only about four states because of numerous practical political reasons, including (1) high quorum requirements in some state legislatures, (2) lengthy lay-over requirements before a bill may be considered, (3) the fact that many states have politically divided government at any given time, (4) the fact that state constitutions would delay the effective date of the new state law until after the Electoral College met in mid-December, (5) the numerous time-delaying tactics enabling the minority party to delay action in the short period of time between Election Day and the meeting of the Electoral College, and (6) other factors.
  • Any attempt to appoint presidential electors after the people vote in November would be politically preposterous in the real world because (1) there would be overwhelming public sentiment against changing the “rules of the game” after the people had voted, (2) the legislature would have to meet in the state capital on Election Day (because this is the only day in the four-year election cycle when presidential electors may legally be appointed), (3) there would be a high level of public support for a national popular vote, and (4) the action would necessarily have to occur in a state where both houses of the legislature and the Governor had already enacted the National Popular Vote compact.
  • Any attempt by one state, or even multiple states, to appoint presidential electors after the people vote in November would probably not matter anyway because the national popular vote winner would typically receive an exaggerated margin of victory in the Electoral College (roughly 75%), thereby producing a cushion of about 135 electoral votes above the 270 needed to win the Presidency.
  • If the hypothetical scenario of changing the “rules of the game” were legally permissible or politically plausible, it would have occurred in the past under the current system on the numerous occasions (including 2000) where a particular presidential candidate was not favored by a particular Governor and legislature.
  • MORE DETAILED ANSWER:

    This section discusses the hypothetical scenario in which a Governor and state legislature might try—for partisan political reasons—to change the “rules of the game” for electing the President by repealing (withdrawing from) the National Popular Vote compact after Election Day in November but before the meeting of the Electoral College in mid-December. Under this scenario, the Governor and legislature would presumably implement some politically advantageous alternative method of appointing presidential electors (say, legislative appointment) after Election Day.

    John Samples of the Cato Institute says that the National Popular Vote compact:

    “cannot offer any certainty that states will not withdraw from the compact when the results of an election become known.”