I should read before commenting. The rule is clearly there, as they award the votes to the person getting the popular vote *nationally*, not by state.
The odd part is that there isn’t even a “state-by-state” vote for President.
In each state, there are a slate of electors pledged to each candidate. The “vote” taken is for the slate of electors. Now, some states make this clear, some not so clear; some states may in fact say you are voting for a particular person, and then have laws requiring the electors be assigned based on popular vote. But in man states, not a single vote is cast for a candidate.
In fact, I wonder if there is a chance for a major play here. What if it so happens that a few big republican states are states that have clear election laws that show they are NOT voting for a candidate? And then what if the democrat loses big, but the next day files suit claiming that only 30 states actually cast a “vote” for an actual person, and that the democrat has the most of those votes, and therefore is the “national vote winner”.?
What i can’t figure out is why a person living in ANY state would want their own state to pass a law that says their own vote doesn’t count.
The legal problem with this policy is that no two states count votes the same way. Which is fine in a system where each state is simply electing their slate, because you can argue that within the state, all individuals had equal opportunity to vote for that slate.
As soon as you have the possibility of a popular vote mattering, you will open the vote to claims of 14th amendment violations, as a voter in Virginia could argue that he was denied “equal access” to vote because unlike Oregon he had to go to the polls.