The following concern has been raised on various blogs regarding the National Popular Vote bill:

The method of awarding electoral votes in each state is controlled by the state's election law—not the personal political preferences of the Secretary of State. A Secretary of State may personally think that electoral votes should be allocated by congressional district, in a proportional manner, by the winner-take-all rule, or by a national popular vote; however, the role of the Secretary of State in certifying the winning slate of presidential electors is entirely ministerial.

The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all rule that is currently the law in 48 states.

In the unlikely and unprecedented event that a Secretary of State were to attempt to certify an election using a method of awarding electoral votes different from the one specified by state law, a state court would immediately prevent the Secretary of State from violating a law's provisions (by injunction) and compel the Secretary of State to execute the provisions of the law (by mandamus).

There were 10 states⁵³ that George W. Bush carried in the 2000 presidential election with a Democratic Secretary of State (or chief elections official).⁵⁴ The electoral votes of any one of these 10 states would have been sufficient to give Al Gore enough electoral votes to become President (even after Bush received all 25 of Florida's electoral votes).⁵⁵ Seventy percent or more of voters in each of these 10 states (and, indeed, the rest of the country) supported the proposition that the candidate who receives the most popular votes in all 50 states and the District of Columbia should become President. Nonetheless, it can be safely stated that it did not even occur to any of these 10 Democratic Secretaries of State to attempt to ignore and override their states' laws by certifying the election of Democratic presidential electors in their states. Such a post-election change in the rules of the game would not have been supported by the public, would immediately have been nullified by a state court, and almost certainly would have led to the subsequent impeachment of any official attempting it.

Moreover, in any one of nine⁵⁶ of these states, awarding electoral votes proportionally would have been sufficient to give Al Gore enough electoral votes to become President. A proportional allocation of electoral votes would have, indisputably, represented the will of the people of each of these nine states more accurately than the state-level winner-take-all rule.

In addition, in any one of three⁵⁷ (of these same nine states), awarding electoral votes by congressional districts would have been sufficient to give Al Gore enough electoral votes to become President. A district allocation of electoral votes arguably would have represented the will of the people of each of these three states more closely than the winner-take-all rule.

There has also been speculation that a Secretary of State might be "vilified" by certifying the election of the national popular vote winner. Under the National Popular Vote legislation, a dilemma has been hypothesized as to

Of course, it is not a "tough call" at all. There is no call to make. The Secretary of State is a ministerial official whose actions are directed and controlled by state law. If 70% of the voters in a state prefer that the President be elected by a national popular vote, and if a state legislature enacts the National Popular Vote bill in response to the strong desires of the state's voters, and if the presidential campaign is then conducted with both voters and candidates knowing that the National Popular Vote bill is going to govern the election in that state, then the voters are not going to complain, much less vilify, the Secretary of State who faithfully executes the state's law.

Aside from the legal issues, the hypothesized scenario presupposes that the people heavily support the currently prevailing winner-take-all rule. In fact, public support for the current system of electing the President is at the level of Nixon's approval rating just prior to his resignation.

In short, the hypothesized scenario has no basis in law and certainly no basis in political reality.

A state legislature cannot, under either the current system or the National Popular Vote plan, change the state's method of awarding its electoral votes during the five-week period between the day when the people cast their votes for President in early November and the day when the Electoral College meets in mid-December. However, if anyone is concerned about this kind of hypothetical post-election maneuver, the National Popular Vote bill offers even more protection against post-election mischief than the current system does.

We first discuss why the hypothesized post-election maneuver is illegal under existing federal law. We later discuss the additional protection that the National Popular Vote bill provides against this hypothetical problem.

In order to implement the hypothesized post-election maneuver, a state legislature would have to

To make the discussion concrete, consider the 2000 presidential election. North Carolina was one of three states that Republican George W. Bush carried, in which the Democrats controlled the governorship and both houses of the state legislature.⁵⁹ Bush carried North Carolina by a 56%–44% margin. Hypothetically, the North Carolina legislature might have convened in mid-November 2000, repealed the state's pre-existing winner-take-all rule (that was poised to award North Carolina's 14 electoral votes to Bush), and then passed a new law awarding the state's electoral votes in any one of three different ways:

• proportionally,
• by congressional district, or
• in accordance with the nationwide popular vote.

Any of these three possible changes would have given Al Gore more than enough electoral votes to win a majority of the Electoral College (even after Bush was awarded all 25 electoral votes from Florida).

In this hypothetical scenario, the legislature might have argued that a proportional or district allocation of electoral votes more accurately reflected the will of the people of North Carolina than the winner-take-all rule. Alternatively, the legislature could have taken a poll and cited the fact that the overwhelming majority of people in North Carolina (and the rest of the country) acknowledged with the proposition that the candidate who receives the most votes for President on a nationwide basis should win the White House.

The above hypothetical scenario did not occur, because it would have been illegal under existing law. This existing law applies, with equal force, to both the current system and the National Popular Vote bill.

The U.S. Constitution provides:

Based on this authority, Congress enacted a law in 1845 (now section 1 of title 3 of the United States Code) specifying that a state must appoint its presidential electors on one particular day in every four-year period:

That is, the Tuesday after the first Monday in November (which most people call "Election Day") is the single day during each four-year period on which it is permissible to appoint presidential electors. Thus, it would not have been legal for the North Carolina legislature to meet after Election Day to repeal the state's existing winner-take-all rule and enact a different way to appoint the state's presidential electors.

In addition, the "safe harbor" section (section 5 of title 3 of the United States Code) treats a state's appointment of presidential electors as "conclusive" only if the appointment is based on

That is, presidential electors can only be appointed under a law that was in effect prior to Election Day (the Tuesday after the first Monday in November). Thus, it would not have been legal for the North Carolina legislature to meet after Election Day and change the law specifying the manner of appointing presidential electors.

Because of sections 1 and 5, no state legislature may change the rules of the game after Election Day but before the meeting of the Electoral College.

It is true that there have been occasions when this type of post-election maneuver has been discussed in the heat of political battle; however, because of the obvious illegality of the maneuver, no state legislature has actually attempted this maneuver. For example, in 1960, Kennedy won the nationwide popular vote by 114,673 votes. However, his majority in the Electoral College depended on the fact that he had carried Illinois by 4,430 popular votes and South Carolina by 4,732 votes. Some members of the South Carolina legislature suggested that the legislature ignore the popular vote in their state, repeal the state's winner-take-all law for awarding electoral votes, and then appoint non-Kennedy presidential electors. Nothing came of a similar post-election suggestion that the Florida legislature directly appoint the state's presidential electors in 2000 while a recount was being conducted in the state.

However, if anyone is genuinely concerned about the possibility of a state legislature changing the rules of the game after the people vote on Election Day, the National Popular Vote compact offers even more protection than the current system because it is an interstate compact.

Like most interstate compacts, the National Popular Vote compact would permit a state to withdraw from the compact (i.e., repeal the law by which the state joined the compact).⁶²

Almost all compacts that permit withdrawal impose a delay on the effective date of any withdrawal. The reason for the delay is that almost all compacts contain obligations that a member state would never have acknowledged to unless it could rely on the enforceability of the obligations undertaken by the other states that are party to the compact. Each member state must have time (and sometimes other types of compensation) to adjust its behavior if another state desires to withdraw.

Thus, the National Popular Vote compact imposes a delay on the effectiveness of any withdrawal. Clause 2 of article IV of the National Popular Vote compact provides:

That is, no withdrawal from the National Popular Vote compact can become effective between July 20 of a presidential election year and the inauguration on January 20 of the following year. This six-month "blackout" period was chosen because it encompasses six important events relating to presidential elections, namely, the national nominating conventions, the fall general-election campaign period, Election Day on the Tuesday after the first Monday in November, the meeting of the Electoral College on the first Monday after the second Wednesday in December, the counting of the electoral votes by Congress on January 6, and the inauguration of the President and Vice President for the new term on January 20.

Although it is true that a state legislature may not, by an ordinary statute, bind the hands of a future legislature, an interstate compact does bind future legislatures until such time as the state withdraws from the compact in accordance with the compact's terms. In fact, an interstate compact is among the few ways to tie the hands of a future state legislature. The reason is that an interstate compact is a contract. Withdrawal from any contract may only be made in accordance with the contract's own terms. It is settled law that, once passed, an interstate compact takes precedence over all existing or future state laws until a state withdraws from the compact under the terms provided in the compact. The reason that the state legislature is bound to the terms of an interstate compact is the Impairments Clause of the U.S. Constitution (article I, section 10, clause 1):

The Council of State Governments summarizes the nature of interstate compacts as follows:

There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:

In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:

The important point is that an interstate compact is not a mere "handshake" agreement.⁶⁸ If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

The above legal constraints are sufficient to prevent the hypothesized change in the rules of the game after the people have cast their votes in early November. However, state constitutional provisions in conjunction with practical politics provide additional constraints.

The hypothesized post-election maneuver would be a partisan maneuver of the most extreme and unprecedented nature. It would be opposed, in the most vigorous fashion, by state legislators and governors belonging to the opposing political party.

Most state legislatures are not in session during November. In most states, the governor must issue a call to convene the state legislature into a special session.⁶⁹ Manifestly, a governor belonging to the political party that would be damaged by this hypothesized post-election maneuver would not even consider issuing a call to convene the legislature for this purpose. However, even if a legislature were in session immediately after the November election, there are numerous obstacles that would serve to frustrate action during the brief five-week period between Election Day and the meeting of the Electoral College in mid-December.

First, the hypothesized post-election maneuver could only be contemplated in a state where one party has "three-way" control of the state government (i.e., both houses of the legislature plus the governorship). In states with divided political control, there would be no possibility of passing partisan legislation to change a state's method of awarding its electoral votes. At any given time, three-way control exists in only about 40% to 50% of the states.⁷⁰ For example, in 2008, this degree of single-party control existed in only 23 states. Thus, there would be no possibility in any of these 23 states of passing partisan legislation to change the state's method of awarding its electoral votes.

In three states (Texas, Oregon, and Indiana), there is a two-thirds quorum requirement for the legislature. In 2008, no political party controls both houses of the legislature of these states by a two-thirds margin. Thus, there would be no possibility in these states of passing partisan legislation to change the state's method of awarding its electoral votes.

In 13 additional states, state constitutional provisions specify that new state laws do not take effect until 60 days (or more) after being signed by the governor. However, there are only five weeks between the November election and the mid-December meeting of the Electoral College. The only exception to this constitutionally specified delay of 60 (or more) days in these states is if the law is passed as an "emergency bill" by a super-majority (two-thirds, three-quarters, or four-fifths, depending on the state). No political party possesses these lofty super-majorities in any of these states. Thus, there would be no possibility in these states of passing partisan legislation to change the state's method of awarding its electoral votes.

The above factors (i.e., absence of three-way control, quorums, and delays in the effective date of newly passed legislation) would, at any given moment, prevent about three-quarters of the states from even contemplating the hypothesized post-election maneuver.

The above discussion leaves 14 states where the hypothesized post-election maneuver would be theoretically possible (assuming that federal law and the Impairments Clause of the U.S. Constitution permitted the maneuver in the first place). At the present time, these 14 states are Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Iowa, Massachusetts, New Hampshire, North Carolina, Rhode Island, South Carolina, West Virginia, and Wyoming.

However, this group of 14 states would be immediately winnowed down by about 75%—that is, to a group of only about four states. The reasons are that the maneuver would be entirely pointless in states where

Roughly half of the 14 states would be winnowed out because they belong to the first category, and about half of the remaining states would be winnowed out because they belong to the second category. Therefore, the hypothesized post-election maneuver would be theoretically possible in only about four states.

This small group of roughly four states would be further winnowed down because of the numerous delaying tactics that are available to the minority of a state legislature when it vigorously opposes pending legislation. These delaying tactics including filibusters, advance notice requirements, lay-over requirements,⁷¹ committee quorums, and floor quorums. The minority party would, in this kind of extreme and unprecedented situation, demand strict adherence to procedural rules that are, under normal circumstances, often waived to expedite legislative activity. Thus, in actual practice, the minority party would succeed, in at least some of these four states, in frustrating legislative action during the extremely short five-week interval between the November election and the mid-December meeting of the Electoral College.

Of course, all of the above discussion about state constitutional provisions and legislative procedure is based on the incorrect assumption that federal law and the Impairments Clause of the U.S. Constitution permit the hypothesized withdrawal maneuver in the first place.

Finally, the hypothesized post-election maneuver would be politically improbable in the real world. There would be virtually no public support for changing the "rules of the game" after a presidential campaign had been conducted under pre-existing laws and after the people of the state had cast their votes on Election Day. Over 70% of the American public has held the position, since the 1940s, that the President should be elected by a national popular vote. Tellingly, in 2000, the American people accepted the ascendancy of a second-place candidate to the Presidency, because everyone acknowledged that the state-by-state winner-take-all rule was the law that governed the 2000 presidential election. In 2000, the public supported "playing by the rules" even though 70% of the public disapproved of the rules. The notion that elected governors and legislators would try to change the "rules of the game" to frustrate a national popular vote enacted into law in their own states is a parlor game that is devoid of any connection to political reality.

In summary, the hypothesized post-election maneuver is an inappropriate basis for criticizing the National Popular Vote compact because it handles this theoretical situation in a manner that is superior to the current system. The National Popular Vote compact relies on the Impairments Clause, two existing provisions of federal law, and the state constitutional restraints. The current system relies only on three of these four factors.

For additional information about the details of operation of the National Popular Vote bill and the issue of withdrawal from interstate compacts, see chapters 5, 6, and 8 of this book.