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Defending the Electoral College and the Constitution since 2009

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Election law ignorance fuels NPV push
Trent England • Feb 03, 2021

Earlier I wrote in response to NPV’s Utah “organizer” Bunnie Keen claiming that their plan is just a minor “update” to the Electoral College. Of course, the real purpose is to nullify the constitutional system without going to the hard work of amending the Constitution. A related concern with Keene’s claims is that, like many NPV advocates, she fails to understand the legal framework for presidential elections. This causes her to misunderstand how the NPV compact would work. Here’s her account of the process.

On election night/week, whatever, NPV participating states (totaling at least 270 electoral votes) agree to hold off appointing their electors until one candidate accumulates so many votes nationwide that the remaining votes can’t change the outcome. Once that’s abundantly clear, they choose their electors not from the party of whoever wins the state, but from the party of whoever wins the nation.

If all a person knows about presidential elections comes from watching television on election night, this might make sense. In fact, NPV says nothing about “holding off” appointing electors, and it positively attempts to avoid (or at least ignore) the idea of appointing electors before vote counting is completed. Because NPV cannot change federal law or state laws in non-compact states (creating significant legal and practical problems with the compact), it must leave vote counting and reporting processes mostly as they are.

NPV compact states would be required to gather vote totals from all other states, and each compact state would—for itself—certify a national popular vote winner. This would probably be done using “certificates of ascertainment” that states file according to an existing federal statute. These archival documents are not always accurate, but NPV states are required to “treat as conclusive” whatever other states report as their vote totals. NPV assumes there are never election disputes, saying nothing about recounts or challenges or what state officials might do if another state’s results are in doubt.

Nightmare scenarios abound. What if a large state refused to allow one party’s candidate on the ballot? That could legally disenfranchise all the party’s voters within that state and depress their national vote total. Or a non-compact state could refuse to go along after an election and report only the winning candidate’s total. Election methods used by states in the past, like voting for individual electors rather than party slates, or methods being pushed for the future, like ranked-choice voting, could make it impossible to aggregate a meaningful and conclusive national popular vote total.

Again, NPV advocates claims of simplicity break like waves upon the rocks of reality. As the nation has just relearned, democratic elections can be as difficult to conduct as they are easy to imagine. Conducting an election for the most powerful office in the world, every four years in an ever-changing but always competitive political environment, is no small endeavor. Those who wish to change the system in place for more than two centuries bear the heavy burden of showing, in detail, how their plan would really work.