Blog

Earlier I explained that, contrary to the claims of lobbyists for the National Popular Vote interstate compact (NPV), official vote totals from every state will not always be available in time for compact states’ national vote tabulation. The federal laws they point to – 3 U.S. Code § 5 and 3 U.S. Code § 6 – does not require what they claim it does.

When this has come up before, NPV’s lobbyists have had a few responses which sound vaguely plausible but don’t hold up to scrutiny.

The first is that the Certificate of Ascertainment (CoA), which they claim is the backstop guaranteeing that vote totals will always be available by the deadline, is not the only possible source of official vote totals. And they’re correct! Every state also produces a statewide canvas that includes election results and that might just as easily serve as the source of official vote totals for compact states. 

But there are two problems (at least) with this claim. First, states set their own deadlines (or don’t set any at all) for when the canvas must be completed, and a state deadline may or may not line up with NPV’s timeline. Second, it’s not uncommon for states to miss their own deadlines. This happened in both California and West Virginia in 2024, which missed certifying their statewide canvas by their statutory deadlines (both also missed what would have been NPV’s deadline if it had been in effect). There’s just no way to guarantee a certified statewide canvas will be done by the compact’s deadline, at least not under current federal law.

The second response has been to claim that the recently updated Electoral Count Act created a special three-judge panel available only to presidential candidates that could enforce federal law and make a state’s Certificate of Ascertainment publicly available by the deadline.

There are three major problems with this claim.

First, a presidential candidate that goes to this special panel on the day of the deadline will be too early – because the deadline hasn’t passed, there is nothing to enforce. The candidate would have to come back after the deadline, still leaving compact states without access to official vote totals before the deadline.

Second, a candidate who goes to this panel the day after the deadline may be told the state in question actually has prepared and submitted its certificate by the deadline, again leaving nothing to enforce and still leaving compact states without access to that state’s vote totals on its certificate. This would have been the case in West Virginia in 2024 – the state transmitted its certificate to the Archives by the deadline, but it was not made public by the state.

Third, while this process plays out, all of the compact states are themselves missing the deadline, meaning a candidate can go to this special panel and ask it to force compact member states to issue their Certificates of Ascertainment even though vote totals are not available from every state.

There’s also a third response to this problem that, for understandable reasons, NPV’s lobbyists have been trying to pretend they didn’t argue for at a hearing in 2021. That will be the next post.

This is the second post in a series of three; here is Part One.