Blog

This is the third (and final) post about an April hearing in Rhode Island on a bill to repeal the National Popular Vote interstate compact (NPV). The two previous posts addressed inaccurate testimony by NPV lobbyist Chris Pearson regarding recounts and missing vote totals. This final post addresses Pearson’s misguided claim that if a non-member state hasn’t counted, certified, and publicly reported every ballot by the federal deadline for appointing electors, which is the second Wednesday in December, courts would step in and fix this problem for NPV.

Discussing the issue of “slow counts” and how they might affect the compact, Pearson described how New York had nearly 425,000 uncounted ballots at the deadline in 2012, partly as a result of Hurricane Sandy. Explaining why New York didn’t put enough resources into counting all the ballots by the deadline (they were instead presumably focused on hurricane recovery efforts), he quoted a member of the New York State Board of Elections as saying “We knew it didn’t matter. We could have had a very accurate count, but Obama won… the precise vote [count] for Obama didn’t matter.”

Pearson then followed with his own observation: “Under National Popular Vote, that’s a different scenario. People will do the count to make sure that votes are counted and accurate and we have a suitable total.” One of the committee members pointed out that this might be true of member states but not necessarily non-member states, to which Pearson responded that if a non-member state hadn’t completed counting all the ballots by the deadline, one of the main presidential candidates would “have a lot of legal oomph to make sure that vote tally is accurately reported,” and argued that a “disadvantaged” candidate will “be in court upholding the law and forcing those state bureaucrats to uphold the law.”

The problem for Pearson (and NPV) is that there is no law requiring a state that isn’t in the compact to complete its vote count in time for NPV compact states.

Consider the scenario that was raised in the hearing, in which NPV is in effect and non-member Texas is the state that finds itself in a New York-2012-like situation—half a million uncounted ballots at the deadline, but also by that time a clear winner in the state with a 1 million vote lead.

In this scenario Texas would be free to do exactly what New York did in 2012—create a Certificate of Ascertainment that reports the names of the state’s appointed presidential electors and that also reports the incomplete vote totals for each slate of presidential electors, and then transmit it to the Archivist of the United States.

If this happened, there doesn’t seem to be any basis for a “disadvantaged” candidate to go to court to try to force Texas to complete its count before the deadline, because doing so would not change the outcome in Texas. And that’s really what the relevant federal law,  3 U.S. Code § 5, is concerned with—ensuring every state’s Certificate is transmitted to the Archivist of the United States by the deadline and that it appoints the correct electors in every state. The vote counts included on the Certificate aren’t totally irrelevant, but unless there is reason to believe the uncounted ballots could change the state outcome, there’s no basis for challenging them or demanding they somehow include the as-yet uncounted ballots.

Furthermore, even if the courts did get involved, they’d do so after the deadline, likely at least a few days after. This would mean the compacting states, if they were waiting in hopes the courts would conjure up the completed Texas vote totals, would themselves have missed both the federal deadline and the compact deadline, and they in turn could be sued by a “disadvantaged” candidate asking the courts to force NPV states to issue their own Certificates of Ascertainment using the incomplete totals—and here, that “disadvantaged” candidate would be on much stronger legal footing than someone trying to force Texas to finish its count, because federal law is very clear about states having to appoint their electors by the deadline. 

What a mess.

If Texas found itself in a situation similar to New York in 2012, with half a million uncounted ballots that couldn’t change the outcome in that state but could affect the NPV result, that’s not a Texas problem, it’s a problem for individual NPV states. It is not a federal problem, nor a problem for states outside of the compact. Courts would likely have no power to resolve this, no matter how much “legal oomph” a “disadvantaged” candidate may have.