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I previously wrote about the failure of the National Popular Vote interstate compact (NPV) to deal with recounts, and the inability of NPV lobbyists to address these concerns at a legislative hearing earlier this year. In this second post I’ll address another critical issue that came up there: not every state’s certified, official vote totals will be available for use by member states. In response to this problem, NPV lobbyist Chris Pearson provided misleading testimony and recommended a reckless course of action for NPV’s member states.

As I’ve explained before, if NPV had been in effect in 2024 there would not have been any certified, official vote totals from West Virginia to include in the national tally by the deadline for appointing presidential electors. That deadline is the Wednesday before the Electoral College meets and applies to both member and non-member states. That year, West Virginia’s statewide canvas was delayed past the deadline, so it obviously couldn’t be used as a source of certified, official results. And while West Virginia did prepare and transmit its Certificate of Ascertainment to the Archivist of the United States by the deadline (as it is required to do by federal law), that document was not made public until several days after the deadline. Those are the two documents—the statewide canvass and Certificate of Ascertainment—created by non-member states that contain official, certified statewide results and that qualify as an “official statement” for NPV compact states.

When the issue came up, Pearson first falsely told the Rhode Island legislators that I’d testified in Virginia that West Virginia had been late with its Certificate of Ascertainment. He then went on to claim that “…within two weeks of election day West Virginia had a certified total,” suggesting this was a non-issue. 

Pearson’s claims are false. At best, he was arguing that West Virginia’s precinct- and county-level certified vote counts would have been good enough to use in the place of a certified statewide canvas. It might seem like a minor distinction but local results are not “a certified total” for West Virginia, only for subdivisions of the state. More importantly, those local totals have not gone through the statewide canvassing process where local results are vetted and corrected—certification at the local level is just a step along the way towards producing an accurate and official certified statewide canvas.

If this is what Pearson means, then he is ignoring both the text of NPV and the normal verification process that is part of a statewide canvas. As I noted the first time I wrote about this issue, it isn’t unusual for thousands or even tens of thousands of votes to be added at the end of the canvas process. It is concerning that a lobbyist for the compact sees no problem with using unvetted vote totals that have not gone through the statewide canvassing process.

Perhaps more importantly, Pearson ignores the reasons that a statewide canvas may be delayed beyond the deadline. This happens when the state canvasing authority has found a problem that needs to be resolved before certification! In 2012, for example, New York’s canvas was delayed past the deadline because of about 425,000 uncounted ballots. Pearson suggests that NPV states should ignore the flashing red light of a delayed statewide canvas and press on, regardless of any problems with the results.

It’s also worth noting that local returns do not qualify as an “official statement” under the NPV compact’s terms. This means member states are not bound to use the vote totals reported on them the way they are bound to use vote totals reported on a Certificate of Ascertainment or a statewide canvas. This opens up the power of member states to estimate vote totals—“determine” and “assign” was the language of NPV’s lobbyists at a 2021 hearing in North Dakota—if a state doesn’t have official, certified vote totals by the deadline.

It is certainly true that a compacting state could, if it wanted to, use precinct- and county-level returns in order to “determine” the vote totals of a state that doesn’t have its statewide canvas by the deadline, but it’s just one option among many. As another NPV lobbyist explained in that North Dakota hearing, the chief election official of a compacting state can “determine” and “assign” vote totals “in any manner they deem is in their best interest.” In other words, the fact that NPV state officials might use local election data suggests that they might do just about anything they think they could get away with.

NPV is unusual among compacts in that it assumes the cooperation of states that aren’t members of the compact, even though non-member states can’t be made to cooperate. As West Virginia showed in 2024, the consequences of that non-cooperation could be serious, potentially serious enough to plunge the country into an election crisis.