Jason Willick in the Washington Post arguing that the National Popular Vote Interstate Compact could lead to chaos in the joint session of Congress for counting electoral votes. I’m no fan of the compact (although I favor a constitutional amendment to adopt a national popular vote for presidential elections as long as the winner must receive a majority of the popular vote), and I agree that the compact could cause destabilizing uncertainty if it went into effect. But I don’t think I agree with Willick’s analysis of what would happen under the newly revised Electoral Count Reform Act. I confess I haven’t thought a lot about this specific point yet, but here’s my initial take: if the courts upheld the appointment of a state’s electors based on the winner of the national popular vote pursuant to the compact (even if the NPV winner lost the popular vote in the particular state), then that judicial ruling would control the counting of the electoral votes from that state under 3 U.S.C. 5 & 15 as revised by the Electoral Count Reform Act.

Willick contemplates the possibility of governors attempting to subvert the application of the compact in their state. But under the Electoral Count Reform Act (ECRA), if a governor attempted to contravene the judicial validation of the compact’s results, the judicial decision and not the governor’s would control the counting of the state’s electoral votes in the joint session of Congress. Willick worries that members of Congress might attempt to ignore the judicial ruling. That, unfortunately, is always a risk with the need for congressional self-enforcement of ECRA’s commands. But on this point, the new language of 3 USC 5 & 15 is clear: members of Congress are entitled to object to the appointment of a state’s electors if the appointment was not made pursuant to state law as it existed at the time of the appointment. (Members of Congress are permitted to object to electoral votes cast by duly appointed electors on the ground that their votes were not “regularly given,” but that basis of objection concerns the nature of the electoral votes and not the nature of the electors’ appointment.) On the premise that the law of the state in question at the time of its electors’ appointment was the state’s embrace of the compact, and assuming the validity of the state’s joining the compact was judicially upheld, then under ECRA there would be no permissible ground for any member of Congress to object to the electoral votes cast by those electors appointed pursuant to the valid state law in place at the time.

In this respect, it seems to me that electors appointed pursuant to a state law that embraces the compact is no different from a state law, like Maine’s or Nebraska’s, that adopts district-specific appointment of electors rather than the generally prevailing statewide appointment of electors. A governor or member of Congress might not like that alternative method of appointing electors, but as long as it is valid (as the Supreme Court held that it is), then the counting of electoral votes in the joint session of Congress must accept the appointment pursuant to the valid state law.

In sum, there are sound reasons to object to the compact, but it doesn’t seem to me that how it interrelates with ECRA is one of them.