9.25 Myth about Withdrawing from the Compact between Election Day and the Electoral College Meeting

John Samples, a Vice President of the Cato Institute, has suggested a hypothetical scenario in which a politically motivated state legislature might try to repeal the National Popular Vote Compact after the people vote in November, but before the Electoral College meets in December, and thereby throw the presidency to the candidate who had just lost the national popular vote.

Samples suggests that a state belonging to the National Popular Vote Compact could simply:

“withdraw from the compact when the results of an election become known.”[561]

After hastily repealing (that is, withdrawing from) the Compact, the legislature and Governor would then enact some alternative method of appointing the state’s presidential electors that would have the political effect of throwing the presidency to the second-place candidate.

The new method of appointing electors might be direct appointment by the legislature of the state’s presidential electors, or it might involve switching to the congressional-district or whole-number proportional method of awarding electoral votes.

There are five independent reasons why a state legislature cannot throw a presidential election to the second-place candidate by repealing the National Popular Vote Compact after the people vote in November, but before the Electoral College meets in December.

Federal law requires that presidential electors be appointed in accordance with the laws “enacted prior to Election Day.”

The Electoral Count Reform Act of 2022 (section 1 of title 3 of the United States Code) states:

“The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” [Emphasis added]

Thus, a state’s chosen method of selecting presidential electors cannot be altered after state legislators see the election results. This law applies, of course, to both the National Popular Vote Compact and the current winner-take-all method of awarding electoral votes.

Presidential electors may only be appointed on Election Day.

No state can appoint presidential electors after the people vote, because:

• The Constitution explicitly gives Congress the power to establish the day for appointing presidential electors.
• Congress has exercised this power by passing a law requiring that every state appoint its presidential electors (whether by popular vote, legislative vote, or any other method) on a single specific day in each four-year election cycle (namely, the Tuesday after the first Monday in November).
• The U.S. Supreme Court has explicitly stated that the power of Congress to establish the day for appointing electors is controlling over the states.

Specifically, the U.S. Constitution (Article II, section 1, clause 4) grants Congress the power to establish the time for appointing presidential electors:

“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” [Emphasis added] [Spelling as per original]

Congress has exercised this power by enacting a federal law (quoted above in the previous subsection) that requires each state to appoint its presidential electors on a single day during each four-year election cycle. This single day (referred to as “Election Day”) is defined in section 21 of the Electoral Count Reform Act of 2022 as follows:

“‘Election Day’ means the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President held in each State, except, in the case of a State that appoints electors by popular vote, if the State modifies the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day, ‘election day’ shall include the modified period of voting.”[562]

The U.S. Supreme Court has explicitly stated that Congress’ power to establish the time for appointing presidential electors is controlling over the states. In McPherson v. Blacker in 1892, the Court ruled:

“Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States; but otherwise the power and jurisdiction of the state is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that congressional and federal influence might be excluded.”[563] [Emphasis added]

If post-election changes to the method of appointing presidential electors were legally permissible, we would already have seen this maneuver many times in the past—and, in particular, in 2000, 1960, and 2012.

In 2000, Al Gore won the national popular vote by 543,816 votes. By virtue of carrying Florida by 537 popular votes, George W. Bush had 271 electoral votes (one more than the 270 required for election).

The Democrats controlled the law-making process in four states that Bush carried—North Carolina, West Virginia, Alabama, and Arkansas. A post-election change in the method of appointing presential electors in any one of these four states would have given Gore a majority of the Electoral College in 2000—even after crediting Bush with Florida’s 25 electoral votes.

Various Democratic state legislators met in North Carolina (and elsewhere) to discuss various post-election maneuvers that might erase Bush’s lead in the Electoral College. However, the North Carolina Legislature did not convene and appoint presidential electors who would have voted for Gore, the candidate who received the most popular votes nationwide. Moreover, the legislature did not convene after Election Day, repeal the state’s pre-existing winner-take-all law, and pass a new law allocating electoral votes by, say, congressional district or proportionally. Any of these three possible actions in North Carolina alone would have (if legal) given Al Gore a comfortable majority in the Electoral College.

Similarly, the Alabama legislature did not convene after Election Day, repeal its existing winner-take-all law, and pass a new law allocating electoral votes proportionally. Moreover, it did not convene and appoint Democratic presidential electors. Either of these two actions in Alabama alone would have (if legal) given Gore a majority in the Electoral College.

The West Virginia legislature did not convene after Election Day and appoint Democratic presidential electors—an action that alone would have (if legal) given Gore a majority in the Electoral College.

Finally, in Arkansas, the Democrats controlled both houses of the legislature, but the Governor was a Republican. However, a veto in Arkansas can be overridden by a majority vote in the legislature, so the Democrats had veto-proof control of the law-making process at the time. Nonetheless, the Arkansas legislature did not convene after Election Day and appoint Democratic presidential electors—an action that alone would have (if legal) given Gore a majority in the Electoral College.

Note that, if John Samples’ hypothetical scenario were legally possible, local politicians in these states could have easily fabricated political spin to justify their actions. For example, they could have conducted public opinion polls in their states about whether the winner of the nationwide popular vote should become President. Indeed, polls taken later showed that 81% of West Virginia voters, 80% of Arkansas voters, and 74% of North Carolina voters supported the proposition that the winner of the nationwide popular vote should become President (section 9.22.1).

Of course, as we all know, none of these four state legislatures took any of the above actions after the November 2000 election, because everyone recognized that post-election appointment of presidential electors would have been illegal.

If such an action had been attempted, it would have been immediately voided in either state or federal court—with no credence being given to the disingenuous political spin offered by local legislators for their post-election change in the rules.

The American people accepted the ascendancy of the second-place candidate to the White House in 2000 (and other years), because everyone understood that result was arrived at using the laws in effect at the time. The American people have accepted second-place Presidents even though a substantial majority (then and now) preferred a national popular vote for President over the state-by-state winner-take-all method of awarding electoral votes.

In 1960, John F. Kennedy won the nationwide popular vote by 118,574 votes. However, Kennedy won only 303 electoral votes—just 34 more than the 269 required for election at the time. This 34-vote margin would have been eliminated if he had not carried Illinois (27 electoral votes) by the slender margin of 8,858 popular votes and South Carolina (eight electoral votes) by 9,571 popular votes.

Some members of the South Carolina legislature suggested that the legislature meet after Election Day, repeal South Carolina’s existing winner-take-all law for awarding the state’s electoral votes, and then directly appoint non-Kennedy presidential electors. Nothing came of this suggestion in South Carolina in 1960, because federal law specifies that Election Day is the single day in the four-year cycle on which presidential electors may be appointed.

The U.S. Constitution does not require a state to permit its voters to vote for presidential electors. Indeed, in the nation’s first presidential election in 1789, the state legislatures of three states appointed presidential electors, and the New Jersey Governor and his Council appointed the electors. The last time when the voters did not directly choose presidential electors was in 1876, when the legislature of the newly admitted state of Colorado appointed the state’s presidential electors. However, these appointments of presidential electors by state legislatures were all made on the single day designated by federal law.[564]

If the South Carolina legislature had wanted to appoint presidential electors itself in 1960, it could have done so. However, it would have had to convene on Election Day for the purpose of appointing the state’s eight presidential electors.

In 2012, there were Republican Governors and Republican legislatures in five states possessing 90 electoral votes—considerably more than President Obama’s 62-vote margin of victory in the Electoral College. The five states were Florida (29), Pennsylvania (20), Ohio (18), Virginia (13), and Wisconsin (10).

If post-election changes in the method of appointing presidential electors had been legally permissible or politically plausible, the legislatures and Governors of these five states could have erased Obama’s 62-vote margin in the Electoral College merely by convening after Election Day and switching to either direct legislative appointment of the presidential electors or perhaps the congressional-district method of allocating electoral votes (an approach that would have the patina of being based on the voters’ choice). Switching to either method after Election Day would have been sufficient to give Mitt Romney a majority in the Electoral College.

The Impairments Clause of the U.S. Constitution prevents a state from repealing the Compact between Election Day and the Electoral College meeting.

Withdrawal from an interstate compact is accomplished by repealing the legislative act by which the state originally approved the compact.

Most interstate compacts permit member states to withdraw from the agreement subject to a specified delay in the effective date of the withdrawal (section 5.13.1).

The National Popular Vote Compact permits any member state to withdraw at any time. However, if the withdrawal occurs during the six-month period between July 20 of a presidential election year and January 20 (Inauguration Day), the effective date of the withdrawal will be delayed until after Inauguration Day.

The second clause of Article IV of the National Popular Vote Compact provides:

“Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

The six-month “blackout” period in the National Popular Vote Compact includes six important events relating to presidential elections, including the:

• national nominating conventions,
• fall general-election campaign period,
• Election Day on the Tuesday after the first Monday in November,
• Electoral College meeting on the first Tuesday after the second Wednesday in December,[565]
• counting of the electoral votes by Congress on January 6, and
• inauguration of the President and Vice President for the new term on January 20.

As the U.S. Supreme Court has repeatedly noted, interstate compacts are contracts.[566] They are construed as contracts under the principles of contract law.

Withdrawal from a compact may only be made in accordance with the terms contained in it.

The Impairments Clause (also called the “Contracts Clause”) of the U.S. Constitution (Article I, section 10, clause 1) restricts states as follows:

“No State shall … pass any … Law impairing the Obligation of Contracts.”

Because of the Impairments Clause, the courts have never allowed any state to withdraw from any interstate compact without following the procedure for withdrawal prescribed by the compact.

On numerous occasions, federal and state courts have implemented the U.S. Supreme Court’s interpretation of the Impairments Clause and 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:

“Upon entering into an interstate compact, a state effectively surrenders a portion of its sovereignty; the compact governs the relations of the parties with respect to the subject matter of the agreement and is superior to both prior and subsequent law. Further, when enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”[567] [Emphasis added]

That is, an interstate compact is one of the rare exceptions to the general principle that one legislature may not bind a future legislature.

The 1999 case of Aveline v. Pennsylvania Board of Probation and Parole was concerned with withdrawal from the Interstate Compact for the Supervision of Parolees and Probationers. Section 7 of that compact provides:

“Renunciation of this compact shall be by the same authority which executed it, by sending six months’ notice in writing of its intention to withdraw from the compact to the other states party hereto.”[568]

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

“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”[569] [Emphasis added]

The 1991 case of McComb v. Wambaugh was concerned with withdrawal from the Interstate Compact on Placement of Children. The compact permits withdrawal with two years’ notice:

“Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.” [Emphasis added]

This particular compact is noteworthy because it is one of the many interstate compacts that did not require (and never received) congressional consent before taking effect (section 5.19). It illustrates that the enforceability of a compact’s withdrawal clause has no connection with whether the compact required congressional consent in order to take effect (section 9.23.3).

The United States Court of Appeals for the Third Circuit ruled in McComb v. Wambaugh in 1991:

“Having entered into a contract, a participant state may not unilaterally change its terms. A Compact also takes precedence over statutory law in member states.”[570] [Emphasis added]

The Court of Appeal of the State of California stated in The Gillette Company et al. v. Franchise Tax Board in 2012:

“Interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)”[571] [Emphasis added]

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

“Compacts are agreements between two or more states that bind them to the compacts’ provisions, just as a contract binds two or more parties in a business deal. As such, compacts are subject to the substantive principles of contract law and are protected by the constitutional prohibition against laws that impair the obligations of contracts (U.S. Constitution, Article I, Section 10).

“That means that compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like treaties between nations. Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted.

“However, unlike treaties, compacts are not dependent solely upon the good will of the parties. Once enacted, compacts may not be unilaterally renounced by a member state, except as provided by the compacts themselves. Moreover, Congress and the courts can compel compliance with the terms of interstate compacts. That’s why compacts are considered the most effective means of ensuring interstate cooperation.”[572] [Emphasis added]

Both state and federal courts have the power to enforce the Impairments Clause. An example of state-level enforcement of the Impairments Clause is found in The Gillette Company et al. v. Franchise Tax Board in 2012. In that case, the California Court of Appeal voided a state law attempting to override a provision of the Multistate Tax Compact[573] (from which California had not withdrawn at the time of the court’s decision).[574]

“Some background on the nature of interstate compacts is in order. These instruments are legislatively enacted, binding and enforceable agreements between two or more states.” [575]

“As we have seen, some interstate compacts require congressional consent, but others, that do not infringe on the federal sphere, do not.[576]

“Where, as here, federal congressional consent was neither given nor required, the Compact must be construed as state law. (McComb v. Wambaugh (3d Cir. 1991) 934 F.2d 474, 479.) Moreover, since interstate compacts are agreements enacted into state law, they have dual functions as enforceable contracts between member states and as statutes with legal standing within each state; and thus we interpret them as both. (Aveline v. Bd. of Probation and Parole (1999) 729 A.2d 1254, 1257; see Broun et al., The Evolving Use and the Changing Role of Interstate Compacts (ABA 2006) § 1.2.2, pp. 15–24 (Broun on Compacts); 1A Sutherland, Statutory Construction (7^th ed. 2009) § 32:5; In re C.B. (2010) 188 Cal.App.4^th 1024, 1031 [recognizing that Interstate Compact on Placement of Children shares characteristics of both contractual agreements and statutory law].)

“The contractual nature of a compact is demonstrated by its adoption: There is an offer (a proposal to enact virtually verbatim statutes by each member state), an acceptance (enactment of the statutes by the member states), and consideration (the settlement of a dispute, creation of an association, or some mechanism to address an issue of mutual interest.)” (Broun on Compacts, supra, § 1.2.2, p. 18.) As is true of other contracts, the contract clause of the United States Constitution shields compacts from impairment by the states. (Aveline v. Bd. of Probation and Parole, supra, 729 A.2d at p. 1257, fn. 10.) Therefore, upon entering a compact, “it takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke or amend one of its compacts if the compact does not so provide.” (Ibid.; accord, Intern. Union v. Del. River Joint Toll Bridge (3d Cir. 2002) 311 F.3d 273, 281.) Thus interstate compacts are unique in that they empower one state legislature—namely the one that enacted the agreement—to bind all future legislatures to certain principles governing the subject matter of the compact. (Broun on Compacts, supra, § 1.2.2, p. 17.)

“As explained and summarized in C.T. Hellmuth v. Washington Metro. Area Trans. (D.Md. 1976) 414 F.Supp. 408, 409 (Hellmuth): ‘Upon entering into an interstate compact, a state effectively surrenders a portion of its sovereignty; the compact governs the relations of the parties with respect to the subject matter of the agreement and is superior to both prior and subsequent law. Further, when enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties. It, therefore, appears settled that one party may not enact legislation which would impose burdens upon the compact absent the concurrence of the other signatories.’ Cast a little differently, ‘[i]t is within the competency of a State, which is a party to a compact with another State, to legislate in respect of matters covered by the compact so long as such legislative action is in approbation and not in reprobation of the compact.’ (Henderson v. Delaware River Joint Toll Bridge Com’m (1949) 66 A.2d 843, 849–450.) Nor may states amend a compact by enacting legislation that is substantially similar, unless the compact itself contains language enabling a state or states to modify it through legislation ‘“concurred in”’ by the other states. (Intern. Union v. Del. River Joint Toll Bridge, supra, 311 F.3d at pp. 276–280.)”[577] [Emphasis added]

The court also stated:

“Were this simply a matter of statutory construction involving two statutes—sections 25128 and 38006—we would at least entertain the FTB’s argument that section 25128 repealed the section 38006 taxpayer election to apportion under the Compact formula, and now mandates the exclusive use of the double-weighted sales apportionment formula. However, this construct is not sustainable because it completely ignores the dual nature of section 38006. Once one filters in the reality that section 38006 is not just a statute but is also the codification of the Compact, and that through this enactment California has entered a binding, enforceable agreement with the other signatory states, the multiple flaws in the FTB’s position become apparent. First, under established compact law, the Compact supersedes subsequent conflicting state law. Second, the federal and state Constitutions prohibit states from passing laws that impair the obligations of contracts. And finally, the FTB’s construction of the effect of the amended section 25128 runs afoul of the reenactment clause of the California Constitution.”

“By its very nature an interstate compact shifts some of a state’s authority to another state or states. Thus signatory states cede a level of sovereignty over matters covered in the Compact in favor of pursuing multilateral action to resolve a dispute or regulate an interstate affair. (Hess v. Port Authority Trans-Hudson Corporation (1994) 513 U.S. 30, 42; Broun on Compacts, supra, § 1.2.2, p. 23.) Because the Compact is both a statute and a binding agreement among sovereign signatory states, having entered into it, California cannot, by subsequent legislation, unilaterally alter or amend its terms. Indeed, as an interstate compact the Compact is superior to prior and subsequent the statutory law of member states. (McComb v. Wambaugh, supra, 934 F.2d at p. 479; Hellmuth, supra, 414 F.Supp. at p. 409.) This means that the Compact trumps section 25128, such that, contrary to the FTB’s assertion, section 25128 cannot override the UDITPA election offered to multistate taxpayers in section 38006, article III, subdivision 1. It bears repeating that the Compact requires states to offer this taxpayer option. If a state could unilaterally delete this baseline uniformity provision, it would render the binding nature of the compact illusory and contribute to defeating one of its key purposes, namely to “[p]romote uniformity or compatibility in significant components of tax systems.” (§ 38006, art. I, subd. 2.) Because the Compact takes precedent over subsequent conflicting legislation, these outcomes cannot come to pass.[578] [Emphasis added]

The courts have long held that a state that belongs to an interstate compact may not unilaterally renounce the agreement. The U.S. Supreme Court addressed this issue in a 1950 case involving the Ohio River Valley Water Sanitation Compact. The parties to that compact included eight states and the federal government. The compact established a commission consisting of representatives from each of the governmental units. It provided that each state would pay a specified share of the operating expenses of the compact’s commission:

“The signatory states agree to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory states, one half of such amount to be prorated among the several states in proportion of their population within the district at the last preceding federal census, the other half to be prorated in proportion to their land area within the district.” [Emphasis added]

There was considerable political division in the West Virginia state government over the desirability of the compact. The state legislature ratified the compact and, in 1949, appropriated $12,250 as West Virginia’s initial contribution to the expenses of the compact’s commission.

The state Auditor, however, refused to make the payment from the state treasury. He argued that the legislature’s approval of the compact violated the state constitution in two respects. First, he argued that the compact was unconstitutional because it delegated the state’s police power to an interstate agency involving other states and the federal government. Second, he argued that the compact was invalid because it bound the West Virginia legislature in advance to make appropriations for the state’s share of the commission’s operating expenses in violation of a general provision of the state constitution concerning the incurring of “debts.”

The West Virginia State Water Commission supported the compact and went to court requesting a mandamus order (a judicial writ ordering performance of a specific action) to compel the Auditor to make the payment from the state treasury. The Supreme Court of Appeals of West Virginia invalidated the legislature’s ratification of the compact on the grounds that the compact violated the state constitution.

In 1950, the U.S. Supreme Court reversed the state supreme court and prevented West Virginia from evading its obligations under the compact. The Court wrote in West Virginia ex rel. Dyer v. Sims:

“But a compact is after all a legal document. … It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified, or given final meaning by an organ of one of the contracting States. A State cannot be its own ultimate judge in a controversy with a sister State.”[579] [Emphasis added]

The Court continued:

“That a legislature may delegate to an administrative body the power to make rules and decide particular cases is one of the axioms of modern government. The West Virginia court does not challenge the general proposition but objects to the delegation here involved because it is to a body outside the State and because its Legislature may not be free, at any time, to withdraw the power delegated…. Whatis involved is the conventional grant of legislative power. We find nothing in that to indicate that West Virginia may not solve a problem such as the control of river pollution by compact and by the delegation, if such it be, necessary to effectuate such solution by compact. … Here, the State has bound itself to control pollution by the more effective means of an agreement with other States. The Compact involves a reasonable and carefully limited delegation of power to an interstate agency.”[580] [Emphasis added]

Justice Robert Jackson’s concurring opinion set forth an additional justification for the Court’s decision. Justice Jackson suggested that the Supreme Court did not need to interpret the West Virginia state constitution in order to conclude that the compact bound West Virginia. Instead, he stated that West Virginia was estopped from changing its position after each of the other governmental entities relied upon, and changed their position because of, the compact:

“West Virginia assumed a contractual obligation with equals by permission of another government that is sovereign in its field (the federal government). After Congress and sister states had been induced to alter their positions and bind themselves to terms of a covenant, West Virginia should be estopped from repudiating her act. For this reason, I consider that whatever interpretation she put on the generalities of her Constitution, she is bound by the Compact.”[581] [Emphasis added]

The pre-ratification expectations of states joining a compact are especially important whenever there is a post-ratification dispute among compacting parties concerning voting rights within the compact.

In one case, Nebraska (which was obligated to store radioactive waste under the terms of an interstate compact) sought additional voting power on the compact’s commission after the compact had gone into effect. A majority (but not all) of the compact’s other members (the so-called “donor” states) consented to Nebraska’s request.

Nebraska’s request was, however, judicially voided in 1995 in State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission:

“because changes in ‘voting power’ substantially alter the original expectations of the majority of states which comprise the compact.”[582]

Amplifying the principle of West Virginia ex rel. Dyer v. Sims, the courts have noted that a single state cannot obstruct the workings of a compact. In Hess v. Port Authority Trans-Hudson Corp., the U.S. Supreme Court held in 1994 that a compact is:

“not subject to the unilateral control of any one of the States.”[583]

Similarly, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, the U.S. Supreme Court in 1979 held that a member state may not unilaterally veto the actions of a compact’s commission. Instead, the remedy of an aggrieved state consists of withdrawing from the compact in accordance with the compact’s terms for withdrawal.[584]

In Kansas City Area Transportation Authority v. Missouri, the U.S. Court of Appeals for the Eighth Circuit in 1981 held that a member state may not legislatively burden the other member states unless they concur.[585]

Moreover, the courts have prevented a compacting state from undermining the workings of that compact. In Alcorn v. Wolfe in 1993, the removal of an appointee to a compact commission, initiated by a Governor to inject his political influence into the operations of the commission, was invalidated because it:

“clearly frustrate[d] one of the most important objectives of the compact.”[586]

In State of Nebraska v. Central Interstate Low-Level Radioactive Waste Commission, Nebraska was estopped in 1993 from seeking equitable relief to prevent a compact, of which it was a member, from pursuing its central mission.[587] In New York v. United States, the U.S. Supreme Court held that the estoppel doctrine was applicable only to the states that have adopted the interstate compact.[588]

In short, a state is estopped from withdrawing from a compact in any manner other than that which it agreed to when it entered into the compact.

Almost every interstate compact contains obligations that a member state would never have agreed to unless it could rely on the enforceability of obligations undertaken by its sister states. Consequently, most interstate compacts impose a delay on withdrawal, because each member state must be able to rely on each contracting party to fulfill its obligations and must have time (and sometimes compensation) to adjust.

The six-month blackout period for withdrawing from the National Popular Vote Compact is reasonable and appropriate in order to ensure that a politically motivated member state does not renege on its obligations after the candidates, the political parties, the voters, and the other compacting states have proceeded through the presidential campaign and election cycle.

The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into them. If a state were willing to rely merely on the goodwill and graciousness of other states to undertake certain actions (particularly actions that the state would not undertake absent reciprocal action by other states), it could unilaterally enact its own independent law on the subject matter involved or unilaterally enact a uniform state law (and hope that other states would follow suit). However, if a state wants an agreement that is legally binding on other states, it enters into an interstate compact. Indeed, interstate compacts would be pointless if they were not legally binding on the participating states.

Thus, if a Governor and state legislature were to enact legislation purporting to withdraw from the National Popular Vote Compact during the six-month period between July 20 of a presidential election year and Inauguration Day (January 20), that legislation would be unconstitutional on its face because of the Impairments Clause.[589]

The Supreme Court has rejected the argument that a state’s power under Article II, section 1 is not subject to any restriction found elsewhere in the U.S. Constitution.

Article II, section 1 of the U.S. Constitution provides:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”[590] [Emphasis added]

Professor Norman Williams of Willamette University in Salem, Oregon, has made the argument that this grant of power to states under Article II is not subject to any restriction found elsewhere in the U.S. Constitution:

“It is not clear that the NPVC is valid and enforceable against a state that decides to withdraw from it after July 20 in a presidential election year. Article II of the U.S. Constitution entrusts the method of appointment of the presidential electorsto the state legislature. For some, that federal constitutional delegation of authority must be read literally, meaning that the state legislature's power cannot be circumscribed to any extent or in any manner.”[591] [Emphasis added]

Williams’ theory—sometimes called the “imperial legislature”[592] theory—is that Article II’s grant of power is unlike any other provision in the Constitution in that it is not subject to any of the Constitution’s specific restrictions on the exercise of power.

In particular, Williams’ theory is that the Constitution’s Impairments Clause does not apply to a state that freely enters into a contractual relationship with other states.

This theory ignores the reality that the vast majority of interstate compacts involve state plenary powers.

It also ignores the fact that the primary reason that states voluntarily enter into interstate compacts is that compacts provide a way to create legally enforceable obligations on other states. A state entering an interstate compact almost always is agreeing to do something that it would only agree to do if it were sure that its partnering states were guaranteed to fulfill their obligations.

The wording “in such manner as the state may direct” is a grant of power permitting each state to exercise a certain power; however, it does not create a power that stands above the rest of the U.S. Constitution or outside the Constitution.

Tellingly, Article II, section 1 does not say:

“Notwithstanding any other provision of this Constitution, each State shall appoint, in such Manner asthe Legislature thereof may direct, a Number of Electors….” [Emphasis added]

Article II, section 1 is neither more nor less than a delegation of a certain power to a certain body (in this case, the state legislature). The exercise of this legislative power is subject to all of the other specific restraints in the U.S. Constitution that may apply to the exercise of legislative power.

Among the specific restrictions on the power of a state under Article II, section 1 are those contained in the 14^th Amendment (equal protection), the 15^th Amendment (prohibiting denial of the vote on account of “race, color, or previous condition of servitude”), the 19^th Amendment (women’s suffrage), the 24^th Amendment (prohibiting poll taxes), and the 26^th Amendment (18-year-old vote).

The point can be made best by focusing on Article I, section 10, clause 1 of the U.S. Constitution, which contains the prohibition on impairing an obligation of contract and the prohibition on ex post facto (retroactive) laws.

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” [Emphasis added]

Everyone would agree that a state legislature has the power under Article II, section 1 to pass a law making it a crime to commit fraud in a presidential election. However, a state legislature may not pass an ex post facto law making it a crime to have committed fraud in a previous presidential election, because the Constitution’s explicit prohibition against ex post facto laws operates as a restraint on the grant of power contained in Article II, section 1.

Necessarily, the Constitution’s explicit prohibition against a “law impairing the obligation of contract”—appearing in the same clause of the Constitution as the prohibition against ex post facto laws—operates as a restraint on the grant of power contained in Article II, section 1.

It is interesting to note that the wording “in such manner as the Congress may direct” also appears in a second place in the Constitution in connection with the specific subject of selecting the manner of appointing presidential electors. The 23^rd Amendment to the U.S. Constitution (ratified in 1961) provides:

“The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct a number of electors of President and Vice President….” [Emphasis added]

Surely, no one would argue that “in such manner as the Congress may direct” (the exact parallel of the wording of Article II, section 1) means that Congress is not subject to specific provisions of the Constitution restricting the exercise of its plenary legislative power, and that Congress could therefore, for example, exclude women and African Americans from voting in the selection of presidential electors in the District of Columbia, notwithstanding the specific requirements of the 19^th Amendment (ratified in 1920) and the 15^th Amendment (ratified in 1870). Similarly, no one would argue that Congress could pass an ex post facto law making it a crime to have committed fraud in a previous presidential election in the District of Columbia.

The wording “as the legislature may direct” appears in another place in the Constitution, namely the 17^th Amendment (ratified in 1913). The 17^th Amendment allows temporary appointments to fill U.S. Senate vacancies:

“until the people fill the vacancies by election as the legislature may direct.” [Emphasis added]

Certainly, no one would argue that the “as the legislature may direct” wording means that a state legislature is not subject to other specific provisions in the Constitution restricting the exercise of legislative power such as, say, the 15^th Amendment (ratified in 1870) or the Equal Protection clause of the 14^th Amendment (ratified in 1868). A state legislature could not, for example, exclude African American voters in a vacancy-filling election for the U.S. Senate.

In fact, both the U.S. Constitution and state constitutions are replete with plenary powers possessed by their respective legislative bodies.

For example, Congress has plenary power over counterfeiting, federal taxation, and numerous other “enumerated” areas, but no one would argue that its plenary powers are not subject to specific provisions of the Constitution restricting the exercise of all legislative power, such as, say, the specific constitutional prohibition against ex post facto laws (Article I, section 9, clause 3).

Similarly, Article I, section 8, clause 17 of the Constitution gives Congress plenary power over the District of Columbia:

“The Congress shall have Power … to exercise exclusiveLegislation in all Cases whatsoever, over such District.”

Yet, no one would argue that Congress may pass ex post facto laws applicable to the District of Columbia.

Similarly, state legislatures have plenary power over innumerable matters, but no one would argue that these plenary powers are not subject to specific restrictive provisions of the U.S. Constitution and their state constitutions.

Williams’ “imperial legislature” interpretation of Article II, section 1 of the Constitution is not new.

In fact, the U.S. Supreme Court ruled on the “imperial legislature” argument in 1968 in interpreting Article II, section 1 in Williams v. Rhodes involving the state of Ohio.

“The State also contends that it has absolute power to put any burdens it pleases on the selection of electors because of the First Section of the Second Article of the Constitution, providing that ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …’ to choose a President and Vice President. There of course can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to ‘lay and collect Taxes,’ but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote ‘for electors for President or Vice President.’ Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote where such burdens are expressly prohibited in other constitutional provisions.

“We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that

‘No State shall … deny to any person … the equal protection of the laws.’”[593] [Emphasis added]

Moreover, in 2020, the U.S. Supreme Court reached the same conclusion about Article II, section 1 in Chiafalo v. Washington:

“Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” [Emphasis added]

See section 9.23.8 for a discussion of Professor Williams’ claim that interstate compacts are “toothless.”

A post-election change in the rules would violate the Due Process Clause of the Constitution.

In 2020, the idea was bandied about that a state legislature could meet after Election Day and sidestep the state’s existing method of awarding electoral votes (that is, the winner-take-all method) and simply choose a slate of presidential electors to its liking.

In September 2020, the National Task Force on Election Crises concluded that:

“A state legislature cannot appoint its preferred slate of electors to override the will of the people after the election.”[594]

“Although the power to choose the manner in which electors are appointed means that state legislatures theoretically could reclaim the ability to appoint electors directly before Election Day, they may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day.”

“A state legislature’s post-Election Day substitution of its own preferences for those of voters raises constitutional concerns. The Supreme Court has explained that “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental,” and is subject to constitutional due process and equal protection guarantees. Bush, 531 U.S. at 104-05. The due process clause, in particular, protects citizens’ reasonable reliance on the expectation under state law that they will be able to meaningfully exercise their fundamental right to vote.”[595] [Emphasis added]

Even if there were no federal constitutional or federal statutory obstacles, a rogue state would have to overcome daunting practical political and procedural obstacles at the state level.

Executing John Samples’ hypothetical post-election maneuver between Election Day and the Electoral College meeting would require several steps:

• The state legislature and Governor would have to enact a law repealing (that is, withdrawing from) the National Popular Vote Compact.
• The repeal statute would have to take effect in the state involved before the Electoral College meeting.
• The legislature and Governor would have to enact a new statute providing a different way to appoint the state’s presidential electors. For example, they might enact a statute allocating the state’s electoral votes by congressional district or proportionally, or they might authorize the legislature to appoint the state’s presidential electors.[596]
• The statute providing the new way to appoint the state’s presidential electors would have to take effect in the state involved before the Electoral College meeting.
• If the new way to appoint presidential electors were to involve direct legislative appointment, the legislature would have to appoint the presidential electors.

Seven pre-conditions would have to be satisfied simultaneously in order for the hypothetical maneuver to be executed successfully in a given state. Each of these conditions narrows the number of states where the post-election maneuver could even be contemplated.

First, the same political party would have to control both houses of the legislature and the Governor’s office, or the party controlling the legislature would have to have a veto-proof majority.[597] Any attempt to change a state law after Election Day in order to throw the presidency to the second-place candidate would be a partisan maneuver of the most extreme nature. As such, it would arouse the fiercest opposition from the to-be-disadvantaged political party.

Second, the presidential nominee who lost the national popular vote would have to belong to the state’s dominant political party. Otherwise, the Governor and legislature would be pleased that the Compact was about to deliver the state’s electoral votes to the national popular vote winner.

Third, the state would have to be one of the states that actually belongs to the National Popular Vote Compact. Otherwise, there would be no compact to repeal.

Fourth, because very few state legislatures are in session in November and December of an election year, it would first be necessary to call the legislature into special session. Governors generally have the power to call a special session. In a few states, legislators have independent power to do so. Thus, except in the minority of states where legislative leaders have independent power to summon a special session, even a veto-proof legislative majority would not be sufficient in states where the legislature is not in session, and the Governor is unwilling to convene a special session.

The practical political difficulties of obtaining a special session of a state legislature were illustrated in 2020 when the Trump campaign attempted to recruit state legislators and Governors to change the method of awarding electoral votes after Election Day. For example, even though the Republican Party controlled both houses of the legislature and the Governor’s office in Arizona and Georgia, Trump supporters found it impossible to convene a special session of the legislature in either state. It also proved impossible to convene the legislatures of three states where the Republicans controlled both houses of the legislatures (Michigan, Pennsylvania, and Wisconsin) but where the Governor was a Democrat.

In its unsuccessful lawsuit in 2020, the Amistad Project of the Thomas More Society complained:

“At present state legislatures are unable to meet. This inability to meet has existed from election day and continues through various congressionally set deadlines for the appointment of presidential electors and the counting of presidential elector votes. The states legislatures of Pennsylvania, Michigan, Wisconsin, Georgia and Arizona … are unable to review the manner in which the election was conducted, are prevented from exercising their investigative powers and are unable to vote, debate or as a body speak to the conduct of the election. In sum, State legislatures are impotent to respond to what happened in the November 3, 2020, election.

“This impotency is caused by the ministerial functions of Congress and the Vice President regarding the counting of the Presidential Elector’s votes and also by state law prohibiting the legislative body from meeting without a supermajority or governor or leadership agreement during a time they can respond to what happened in the election. Accordingly, even if the state legislatures were aware of clear fraud by the executive branch—the state legislatures could not meet unless a supermajority, or a governor, or legislative leadership agreed they should meet.”[598] [Emphasis added]

Fifth, many state constitutions impose a substantial delay before any legislation passed by the legislature can take effect.

There are only 42 days between Election Day in November and the December Electoral College meeting.

It would be pointless to repeal the National Popular Vote Compact after Election Day if the repeal law could not take effect before the Electoral College meeting.

Thus, unless the law repealing the National Popular Vote Compact were to take effect immediately, the presidential electors chosen in accordance with the Compact would have cast their votes long before the repeal law takes effect. In fact, absent immediate effect, the new President would have been inaugurated before a repeal law could take effect in many states.

A newly passed law can be given “immediate effect” in 19 of these 21 states by passing it with a constitutionally specified super-majority (e.g., three-fifths, two-thirds, three-quarters, or four-fifths).

Table 9.40 shows the date when a new state law ordinarily takes effect in each state. In states where a new state law does not ordinarily take effect immediately, column 3 of the table shows the super-majority needed in each house of the legislature in order to give a new law immediate effect.

Table 9.40 Effective dates for new state laws

State	Date when a bill ordinarily takes effect	Super-majority needed to give bill immediate effect
Alabama	Can be immediate
Alaska	90 days after enactment	Two-thirds
Arizona	90 days after legislature adjourns	Two-thirds (three-quarters if veto was overridden)
Arkansas	90 days after legislature adjourns	Two-thirds
California	January 1 next following a 90-day period from date of enactment. 91 days after special session adjourns	Two-thirds
Colorado	Can be immediate
Connecticut	Can be immediate
Delaware	Can be immediate
Florida	Can be immediate
Georgia	Can be immediate
Hawaii	Can be immediate
Idaho	Can be immediate
Illinois	June 1 of the following year (if passed after May 31)	Three-fifths
Indiana	Can be immediate
Iowa	Can be immediate
Kansas	Can be immediate
Kentucky	Can be immediate
Louisiana	Can be immediate
Maine	90 days after recess	Two-thirds
Maryland	June 1 after adjournment	Three-fifths
Massachusetts	90 days after enactment	Two-thirds
Michigan	90 days after adjournment	Two-thirds
Minnesota	Can be immediate
Mississippi	Can be immediate
Missouri	90 days after adjournment
Montana	Can be immediate
North Carolina	Can be immediate
Nebraska	Three months after adjournment	Two-thirds
Nevada	Can be immediate
New Hampshire	Can be immediate
New Jersey	Can be immediate
New Mexico	90 days after adjournment	Two-thirds
New York	20 days after enactment
North Dakota	August 1	Two-thirds
Ohio	90 days after enactment	Two-thirds
Oklahoma	90 days after adjournment	Two-thirds
Oregon	Can be immediate
Pennsylvania	Can be immediate
Rhode Island	Can be immediate
South Carolina	Can be immediate
South Dakota	June 1 after adjournment	Two-thirds
Tennessee	Can be immediate
Texas	90 days after adjournment	Two-thirds
Utah	60 days after adjournment	Two-thirds
Vermont	Can be immediate
Virginia	July 1 or first day of 4th month after special session	Four-fifths
West Virginia	90 days after passage	Two-thirds
Washington	Can be immediate
Wisconsin	Can be immediate
Wyoming	Can be immediate

In 2024, neither political party alone had the super-majorities required to give a bill immediate effect in nine of the 19 states where a bill can be given immediate effect (Alaska, Arizona, Illinois, Maine, Michigan, Nebraska, New Mexico, Virginia, and Texas). Moreover, the required super-majority would be difficult to obtain in the remaining states (even from among members of the state’s dominant party) if the purpose were to steal the presidency.

Sixth, the majority party would have to be able to overcome the numerous dilatory parliamentary tactics that enable the minority party to frustrate action in legislative bodies. A highly motivated minority in most state legislatures can delay the enactment of new legislation for a considerable length of time by invoking these tactics.

Although these dilatory tactics cannot delay enactment of a particular bill forever, they are more than sufficient in most states to delay a legislative bill in the brief 42-day period between Election Day and the Electoral College meeting in mid-December.

The available dilatory tactics vary by state, but include:

• quorum requirements;
• filibusters;
• lay-over requirements;
• offering a blizzard of amendments, insisting that no action occur until pending amendments are printed, and demanding a roll call on each amendment; and
• “working to rule”—that is, refusing to waive the numerous notice, scheduling, and other requirements that are routinely waived under ordinary circumstances.

Let’s examine these dilatory tactics one-by-one.

The state constitutions of four states (Oregon, Indiana, Tennessee, and Texas) require a two-thirds quorum for a meeting of the legislature.

As the Oregon Statesman Journal observed in 2018:

“Denying a quorum is one of several parliamentary tools the minority party has to slow down progress on legislation, often deployed when they feel ignored or cut out of the lawmaking process.”[599]

Legislators opposing certain bills have absented themselves on many occasions in Oregon, notably during the 2023 session.[600]

In Texas in 2003, the Democrats pulled the quorum when the Republicans attempted to pass a politically motivated mid-decade redrawing of the state’s congressional districts. In an article entitled “Texas House paralyzed by Democratic walkout,” CNN reported:

“With action in the Texas House brought to a standstill, roughly 50 state Democratic representatives said they would remain in neighboring Oklahoma ‘as long as it takes’ to block a Republican-drawn redistricting plan that could cost them five seats in Congress. ‘There's 51 of us here today, and a quorum of the Texas House of Representatives will not meet without us,’ said state Rep. Jim Dunnam, the chairman of the House Democratic Caucus. He spoke with reporters outside a hotel in Ardmore, Oklahoma, where the Democrats have holed up.”

“The Democrats are trying to thwart a GOP redistricting plan they say is being pushed by U.S. Rep. Tom DeLay, the majority leader in the U.S. House of Representatives and a Texan. Democrats call the plan ‘an outrageous partisan power grab.’ They have gathered in Ardmore, just across the state line and beyond the jurisdiction of Texas state police, whom the House’s Republican majority has ordered to bring them back to the state Capitol.”[601]

In 2024, neither political party in Texas and Oregon has had a two-thirds super-majority in both houses of the legislature.[602] Thus, it would be futile to even contemplate executing the hypothetical post-election scenario in these two states, because the minority party would simply run out the clock by boycotting the legislative session during the brief period between Election Day in November and the Electoral College meeting in mid-December.

The filibuster (or its functional equivalent) is available to the minority in many states. For example, when the Nebraska Republican Party attempted to repeal the state’s congressional-district method of awarding electoral votes and replace it with a winner-take-all law, the bill was blocked by a filibuster in several recent years, including 2024.[603], [604]

Many state constitutions impose significant lay-over requirements. For example, the California state constitution imposes a 30-day delay after a bill’s introduction before it can even be considered. This constitutional lay-over requirement can only be waived by a three-quarters vote. Neither political party has had a three-quarters super-majority in both houses of the California legislature at any time since World War II. Other state constitutions impose lay-overs before the second chamber of the legislature can consider a bill passed by the first chamber. When lay-over requirements are in state legislative rules (rather than the state constitution), they typically may be suspended only by a super-majority.

A further delay would occur if passage of a repeal law depended on overriding the veto of a governor from the opposing party. Such a governor would surely slow-walk the issuance of his or her veto so as to consume every last day of the available time (typically 10 days).

Seventh, the rogue state(s) would have to cumulatively possess enough electoral votes to matter. In any given election year, it would be unlikely for the states belonging to the National Popular Vote Compact to possess a bare 270 electoral votes. More importantly, the national popular vote winner is likely to have won some—and perhaps many—electoral votes from non-compacting states. Thus, the rogue state(s) would have to collectively possess a considerable number of electoral votes in order to throw the presidency to the candidate who lost the national popular vote.

Taken together, John Samples’ hypothetical partisan and illegal maneuver of attempting to withdraw from the National Popular Vote Compact after Election Day is both illegal and impractical.

Florida in 2000

The events in the Florida legislature between Election Day and the Electoral College meeting in 2000 are instructive, even though they involved a provision of the Electoral Count Act of 1887 that is no longer in effect.

Because section 1 of the Electoral Count Act of 1887 provided that presidential electors were to be appointed on Election Day, everyone recognized that there was no possibility that the Republican-controlled Florida legislature could meet after Election Day and retroactively decide to ignore the already-cast popular vote and appoint the slate of presidential electors nominated by the Florida Republican Party.[605]

The now-repealed section 2 of the Electoral Count Act of 1887 provided:

“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” [Emphasis added]

Republicans in the Florida legislature advanced the argument that if a court were to vacate the initial count of the popular votes cast on Election Day, and if a court-ordered recount were not completed by the federal Safe Harbor Day (i.e., six days prior to the Electoral College meeting), Florida could have been left with no presidential electors at the time of the Electoral College meeting.

This possibility aroused considerable concern, because the Constitution does not require an absolute majority of the electoral votes to become President, but merely:

“a majority of the whole number of electors appointed.”[606] [Emphasis added].

Thus, if Florida had failed to appoint its 25 presidential electors in 2000, Al Gore would have had a majority of the electors appointed and, therefore, would have been elected President by the Electoral College.

This outcome was clearly unappealing to the Republican-controlled Florida legislature and the Republican Governor, the brother of the Republican presidential nominee.

It was therefore argued at the time that the Florida legislature had the power to act under section 2, because there was a possibility of a “failure to make a choice.”

On December 7, 2000, the New York Times reported:

“Nervous about meeting a deadline of next Tuesday for states to pick electors, and with Vice President Al Gore having made remarks indicating that he is not ready to concede, [Senate president, John] McKay and [Speaker Tom] Feeney signed a proclamation today convening a special session of the Legislature beginning on Friday.

“‘On Dec. 12, we may find ourselves in a position that calls for our involvement should there be no finality to the contests that are still pending,’ Mr. McKay said in a joint news conference with Mr. Feeney to announce the decision. ‘And it is possible that there may be more filed before this day is out. It would be irresponsible of us if we failed to put a safety net in place under the current court conditions.”

“Mr. Feeney said he was compelled to call for the special session because we have a duty to protect Florida's participation in the Electoral College.’”[607] [Emphasis added]

Thus, the Republican-controlled Florida House of Representatives passed a resolution reaffirming the initial already-certified vote count favoring the Republican presidential electors supporting George W. Bush.

The Republican-controlled state Senate never took any action on the House’s “reaffirming” motion, because the U.S. Supreme Court’s decision in Bush v. Gore mooted the issue.

Thus, the “failed to make a choice” provision of the Electoral Count Act of 1887 was never invoked.

The Electoral Count Reform Act of 2022 repealed this provision.

Footnotes