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A longstanding concern about the National Popular Vote interstate compact (NPV) is whether official vote totals from every state will always be available by the time member states need them—obviously you cannot have a “national popular vote” if you are missing votes from a few states. 

According to federal law, the deadline for all states to determine their presidential electors is the Wednesday six days before the Tuesday meeting of the Electoral College. This means compact states must have election results from every other state by this deadline in order to add them up, determine the winner, and appoint their own electors by the same deadline. 

Lobbyists for NPV claim federal law guarantees official vote totals from every state will always be available by the deadline, but it turns out they have badly misunderstood the two relevant statutes, 3 U.S. Code § 5 and 3 U.S. Code § 6.

The first, 3 U.S. Code § 5, requires the governor of every state prepare by that Wednesday deadline a Certificate of Ascertainment (CoA) naming the state’s electors, and then “transmit” it to the Archivist of the United States. The CoA also reports the “canvas or other determination” for each candidate for presidential elector, i.e. the vote count. The next section, 3 U.S. Code § 6, requires the Archivist to make the CoA of each state “open to public inspection.”

According to NPV’s lobbyists, because states must transmit their certificates by the deadline and then the Archivist must make them available to the public, the vote totals on the certificates will be available to states in the compact by the deadline. 

What they ignore is that many states don’t prepare and transmit their CoA until a few days before, or even the day of, the deadline, and because the CoA is a physical document, transmission is not instantaneous—it typically takes a day or two for it to reach the Archives. It then takes another few days for the Archives to review the certificates before making them publicly available. 

For example, in 2024 the deadline was December 11, and more than a dozen states prepared and transmitted their CoA on or after December 9. The earliest any of these states’ CoA was posted online by the Archivist was December 16—five days after the day that NPV member states would have needed to see them and the vote totals on them. 

In recent years NPV’s lobbyists have had a few responses to this problem, and I’ll address those in a future post. But it should be clear that, contrary to the claims of NPV’s lobbyists, federal law does not guarantee that official vote totals will be available from every state by the time compact states will need them. 

This is the first post in a series of three.