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Certifiably Correct

Sean Parnell - Apr 21, 2020

Threats

In a few recent posts I’ve raised the point that if enacted, the National Popular Vote Interstate Compact (NPV) is going to face some serious problems being executed, in large part because of the lack of an accurate and timely official vote count that can be used to determine the winner.

In a few recent posts I’ve raised the point that if enacted, the National Popular Vote Interstate Compact (NPV) is going to face some serious problems being executed, in large part because of the lack of an accurate and timely official vote count that can be used to determine the winner. One of the key issues here involves something known as a “Certificate of Ascertainment,” which each state (plus the District of Columbia) submits to the National Archives to certify which electors have been appointed. This document also includes vote totals for each slate of electors.

In the past, advocates and lobbyists for NPV have explained that these certificates are the “official” source that NPV member states would use to get vote totals from. As I pointed out previously, though, these certificates are not necessarily timely or accurate.

Last year, when I was testifying to a subcommittee in New Hampshire that was considering NPV and explaining this problem, the lobbyist for NPV made a point of “correcting” my statement on this point and insisted that the compact does not even mention Certificates of Ascertainment. Rather than write from scratch a post that can be used to explain the dispute, I thought I’d just paste here a slightly-edited version of the e-mail I sent to the subcommittee members:

___

Representatives Lane, Hamer, Griffin, and Prudhomme-O’Brien:

I wanted to follow up on the subcommittee meeting yesterday to address the issue raised by [NPV lobbyist], who questioned my statement that the language of the compact points to something known as a “Certificate of Ascertainment” (CoA) as the source of vote totals to be used to determine the popular vote winner. As you may recall, I explained that the vote totals on the CoAs are not necessarily accurate or timely. [NPV lobbyist] indicated that I was wrong in saying that the compact mentions the CoAs.

The primary source for my statement is the book Every Vote Equal, i.e. the book published by National Popular Vote, Inc. It explains in great detail that the source of vote totals to be used in calculating the popular vote [is the CoA].

The following is cut-and-pasted directly from Chapter Nine’s text beginning on page 580 of the online version of Every Vote Equal (4th Edition), available here (Chapter Nine is titled “Responses to myths about the National Popular Vote Compact”):

9.14. Myths About Lack of An Official National Count for Presidential Elections and Secret Elections

9.14.1. Myth: There is no official count of the national popular vote.

Quick Answer: Current federal law provides for an official count of the popular vote for President from each state in the form of a public “Certificate of Ascertainment.”

There’s also a “More Detailed Answer” that follows (bold in the original):

It is sometimes asserted that there is no official national count of the national popular vote for President and, therefore, the National Popular Vote compact would be impossible to implement.

In his testimony on February 19, 2010, to the Alaska Senate Judiciary Committee, Professor Robert Hardaway of the University of Denver Sturm College of Law said: “Under the Koza scheme, who would be the national official who would decide what the popular vote is?

The answer is the same under both the current system and under the National Popular Vote compact.

Existing federal law (section 6 of Title 3 of the United States Code) requires that an official count of the popular vote for President from each state be certified and sent to various federal officials in the form of a “Certificate of Ascertainment.”

“It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast....”

Figure 9.5 shows the Certificate of Ascertainment from Oregon for the 2012 presidential election. Appendices E, F, G, H, and I show the 2004 Certificate of Ascertainments for Minnesota, Maine, Nebraska, New York, and Mississippi, respectively.

The certificates of ascertainment from all 50 states and the District of Columbia are available on-line for the 2000, 2004, 2008, and 2012 presidential elections.

The national popular vote total for each presidential candidate can be obtained by adding together the popular vote counts from the Certificates of Ascertainment from all 50 states and the District of Columbia.

In fact, the results of this arithmetic process of adding up 51 numbers for each candidate may be viewed on the National Archives and Records Administration’s web page entitled “2012 Presidential Election—Popular Vote Totals.”

Tara Ross says that supporters of the National Popular Vote “pretend it is possible to come up with one national vote total.”

Why does Ross think that the National Archives and Records Administration is “pretending” when it presents a spreadsheet showing the number of popular votes cast for each presidential candidate as certified by each state’s Certificate of Ascertainment?

I won’t paste it here (it’s several pages worth of text), but you can also read the parts of Chapter 6 that do a detailed section-by-section-analysis of the compact (available here, beginning on page 262), in particular the description of Sections 4 and 5 (beginning at the bottom of page 265). It explains in detail that the CoAs of other states are to be used as the source of vote totals for determining the popular vote winner.

I hope this clears up any confusion – while it’s technically true that the compact does not contain the words “Certificate of Ascertainment” it’s clear from the text of the compact and the book published by National Popular Vote, Inc. that the compact does in fact point to each state’s Certificate of Ascertainment as the “official” source of vote counts to be used under the compact...

Best,

Sean Parnell

Sr. Legislative Director, Save Our States

____

Because I was trying to be brief in my e-mail, I left out a lot, including that there’s about fifty pages of Every Vote Equal that are either devoted to explaining Certificates of Ascertainment and how they can be used as the “official” source to determine the “national popular vote winner” or that reproduce the certificates of several states to illustrate the point.

I’m not sure if that NPV lobbyist’s attempt to “correct” my statement about Certificates of Ascertainment was a one-off, but if it was at least I have a ready-made e-mail to fire off each time an NPV lobbyist claims the compact doesn’t reference, rely on, or have anything to do with these certificates.