‘Simple’ popular vote plan would mean chaos for 2028 election

On March 26, 2026, USA Today ran a piece that I wrote about Virginia and the National Popular Vote compact. I approved a “final” copy of the article on March 25. Unfortunately, further changes were made without me sometime before the piece published at 6:00 a.m. on March 26. I did not approve the last round of changes and tried to get my original restored. The editors declined. In particular, I wanted them to restore the references to NPV that they deleted. I feel that confusion was introduced into the piece when they replaced those references with the phrase “popular vote states.” Yes, I am also opposed to a constitutional amendment eliminating the Electoral College and replacing it with a national popular vote, but that is not what I am discussing in this particular article. The issues I am discussing below are specific issues created by the compact. I am reprinting my original article here, as I approved it, for the record.

The Commonwealth of Virginia is poised to join the National Popular Vote Interstate Compact (NPV), an agreement already joined by 17 other states and Washington, D.C., in an attempt to effectively eliminate the Electoral College. Both the state senate and state house approved the measure, and the bill is now awaiting the governor’s signature. 

Electoral College opponents will celebrate, but they shouldn’t. Americans do not realize what is about to hit them if NPV becomes reality. 

Indeed, the situation bears an eerie resemblance to Prohibition. 

When the 18th Amendment was ratified in 1919, most Americans didn’t understand what they were getting: They thought the amendment would result in a ban on hard liquor only. They did not realize that wine and beer would also be included in the broad sweep of the new law. 

Many were stunned. They hadn’t signed up for that! A black market for liquor sprung up. People who had been drinking only beer began drinking the easier-to-smuggle hard liquor. Crime increased. Tax revenues were lost.

The reality of Prohibition had not matched the sales pitch.

When repeal was proposed, that constitutional amendment was ratified in less than a year. 

Popular vote plan may sound good, but ...

The same will happen with NPV. Its interstate compact is full of surprises for those who want only the elimination of the Electoral College. 

On the surface, NPV’s idea seems simple: It asks states to sign an interstate compact. By the terms of that compact, each signatory state agrees to pledge its presidential electors to the winner of the national popular vote, rather than the winner of the state’s popular vote.

The compact goes into effect when states holding 270 electoral votes (enough to win the presidency) have signed. 

With the addition of Virginia, NPV will be just 48 electors shy of its goal. Based on historical trends, the compact’s supporters are already predicting that state elections this fall will swing their way, increasing the odds that the compact takes effect before the 2028 presidential election. 

Unfortunately, this “simple” idea will wreak havoc because an interstate compact cannot change the foundations of our system: It cannot give the federal government authority to override state election codes. Only a constitutional amendment can do that. 

The differences among states will create problems. 

Different election rules could produce chaos

Today, no one cares if Texas voters have more time to early vote than Virginians. A ballot cast in Texas cannot change the identity of an elector in Virginia. With NPV in place, however, Virginia will be looking to national totals — including the totals in Texas — as they decide whether to appoint Republican or Democrat electors.

Texas will probably give its voters even more time to early vote, hoping to affect national totals and push blue and swing states into appointing Republican electors. 

There are other differences among states’ laws. States differ on whether to allow felons to vote and how their voting rights are restored. There are different absentee ballot rules. How candidates qualify for the ballot, what triggers a recount and many other procedures vary across the nation.

Any of these differences can turn into an equal protection claim — a constitutional lawsuit that could upend an election. 

Indeed, Virginia and other NPV states had better brace themselves for such lawsuits. The Supreme Court has held that a state may not by “arbitrary and disparate treatment, value one person’s vote over that of another.”

Adoption of NPV is a deliberate choice to place voters in a situation that guarantees unequal treatment, each and every presidential election year. 

Non-participating states could foul up plans

Finally, states that have rejected NPV’s compact can be expected to work against its implementation. The Constitution gives them plenty of tools to do just that. 

Non-NPV states can complicate efforts to generate a reliable national popular vote total. What if Texas were to give each of its citizens three opportunities to vote, hoping to inflate GOP numbers? Or what if it reverts to an older form of ballot in which individual presidential electors receive votes, rather than our current system in which an entire slate is pledged to a presidential candidate?

What if non-NPV states were to release vote totals for winning candidates only? 

Any of these actions will make a national popular vote total inaccurate and possibly unknowable.  

Formally eliminating the Electoral College through a constitutional amendment would be unwise in a country as diverse as our own, but NPV’s attempt to skirt the constitutional amendment process will create a logistical and legal nightmare that no one expects. 

As with the Prohibition experiment, the unanticipated consequences of NPV destine it to fail. 

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including “Why We Need the Electoral College.” Her new book, “We Created a Country: The Story of Our Constitution,” is forthcoming April 21.