I’ve been deeply critical of the National Popular Vote Compact (“NPV”) (for a taste of some reasons, see here). In brief, instead of states choosing the winning slate of presidential electors based on the winner of each state’s popular vote, compacting states (consisting of at least a majority of the Electoral College) agree to choose the winning slate of presidential electors based on the winner of the national popular vote.

But there’s a new effort out that attempts to thwart the NPV if the NPV ever goes into effect—by refusing to disclose some statewide popular vote totals.

Legislators in New Hampshire and South Dakota have introduced bills that would keep the state’s popular vote totals a secret until after the Electoral College meets. That, in theory, would thwart the ability to add up a “national popular vote” total.

But I’m not so sure this will work.

The NPV instructs each member state to total "the number of votes for each presidential slate in each state . . . in which votes have been cast in a statewide popular election"; and "'statewide popular election' shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis." It also provides, “The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.” (Right now, that’s six days before the Electoral College meets.)

That means that if, say, Colorado in 1876 doesn't hold a popular election, there are no popular votes added from the state of Colorado to add. So the Compact counts up the popular votes in as many or as few states as hold elections.

So what if New Hampshire or South Dakota, or some other state, withholds its votes from other states to review? My guess is that there’s no “official statement” of the “popular vote” to treat as “conclusive,” which places no obligation on member states to count those votes in a national popular vote. Alternatively, the compact might be construed to say that there are no “votes . . . counted on a statewide basis” in the event the state chooses not to disclose them prior to the meeting of the electors (technically, of course, they’d be counted secretly, but the implication from the NPV, I think, is that counted and publicly ascertainable is what matters, as other provisions of the NPV suggest).

If that’s the case, New Hampshire or South Dakota wouldn’t be thwarting the NPV. They’d simply be excluded from the “national popular vote” total, as if the legislature chose the electors directly.

Perhaps I’m wrong, and the better interpretation of the NPV is that if a state holds a popular election but refuses to publcly disclose its votes, it would prevent any state from recognizing a “national popular vote” total. But despite my opposition to the NPV for both legal and practical reasons, I’m skeptical this gambit would work.