Defending the Electoral College since 2009
There’s been a lot of analysis and commentary about legislation dubbed the “Electoral Count Reform Act” (ECRA), introduced by U.S. Senator Susan Collins (a similar bill, but with less bipartisan support, recently passed the House). The Senate bill proposes to update federal law governing how states appoint and certify presidential electors, how electoral votes are cast, and the procedures Congress uses to count the electoral votes and declare a winner. For the most part election law and policy experts have praised the legislation, though some (myself included) have concerns or see room for improvement.
One question that hasn’t been addressed is, how would this (or other legislation that changes the Electoral Count Act of 1887) affect the National Popular Vote interstate compact (NPV)?
It’s an important question because, as folks at National Popular Vote, Inc., (or NPV, Inc.) have explained, the compact was written specifically to conform to and operate under federal law as it existed at the time the compact was drafted (apparently 2005–2006).
For example, page 601 of the fourth edition of Every Vote Equal, published by NPV, Inc., says “…the compact’s wording is directly patterned after existing federal law.” And just a few weeks ago, an NPV, Inc. lobbyist noted that “The National Popular Vote interstate compact follows the language of the Electoral Count Act in effect right now…” (at roughly 48 minutes of this video).
So… what happens to the compact when that language is changed, as the Electoral Count Reform Act proposes to do?
A lot depends on what the changes are, of course. If the ECRA becomes law, it appears to take an existing problem for the compact and make it even worse.
It all has to do with the Certificates of Ascertainment (CoA). The CoA, required by the current Electoral Count Act, is a document (along with six “duplicate originals”) that every state prepares as part of the process of certifying to Congress which slate of electors has been appointed. Each CoA includes the names of the presidential electors as well as the “canvas or other ascertainment” of all votes cast for presidential electors in that state. The original is sent to the National Archives and the rest are attached to the Certificates of Vote that electors cast on the day the Electoral College meets, which are then sent to a variety of officials including the President of the Senate. From these documents, according to both Every Vote Equal and numerous statements by lobbyists, consultants, and leaders of NPV, Inc., vote totals from all fifty states and Washington, DC would be obtained and used to determine the winner under the compact.*
One of the biggest problems NPV has always had with using CoAs as the “official” source of vote totals is that the timeline required under the Electoral Count Act and the procedures followed by the states have never meshed with the timeline that NPV requires.
The abbreviated version of the problem is as follows: the chief election official (CEO) of an NPV member state must have vote counts from every state BEFORE they can appoint their own electors, and that obviously has to happen BEFORE the Electoral College meets.** The compact’s drafters assumed each state’s CoA would be prepared and publicly available before the Electoral College meets, allowing the CEO of each NPV member state to easily obtain vote totals and aggregate them to determine the winner.
It turns out this assumption was in error. While the CoA is supposed to be prepared ahead of the day the electors meet, states don’t actually have to submit it to the National Archives or make it public before that day. Before the Electoral College meets, states typically submit the original CoA to the National Archives, which posts them online after reviewing them to ensure they conform to the Electoral Count Act’s requirements. But because of the time it takes for certificates to travel via registered mail (as required under federal law) to the National Archives and be reviewed by staff, usually CoAs for at least a few states aren’t posted online and available before the Electoral College meets.
For example, in 2020 when the Electoral College met on Monday, December 14 (it’s always a Monday), certificates from Kansas (dated December 14), Maryland (December 14), Mississippi (December 11), and Missouri (December 14) were prepared and submitted shortly before or on the day the Electoral College met. None were publicly available by the time they would have been needed if NPV were in effect.
And it isn’t just a problem with the certificates for states that submit them close to the deadline. In 2020 both the Connecticut and Utah certificates, dated in late-November of 2020, were not posted online until December 22, more than a week after the Electoral College met (my guess would be there were problems with the certificates that were originally submitted, requiring the states to revise them and resubmit).
It seems clear that under current federal law, if the CoAs are the official source of vote totals under the compact there are going to be a few blank lines on the spreadsheet when NPV states add up the votes from other states.
So, what happens to NPV if the current Senate version of an Electoral Count Act reform bill passes? Does it solve this problem, or make it worse?
To quote Peter Quill (aka “Star Lord”): It’s worse. It’s so much worse.
Under current law NPV member states could wait right up until the Electoral College meets before appointing their own electors and then submitting their CoAs, increasing the chances that late-arriving CoAs might be posted on the National Archives website in time for NPV’s needs.*** The Senate bill no longer makes this option feasible. It would require states to submit their CoAs at least six days before electors meet, and as Thomas Berry and Andy Craig at the Cato Institute explained in their testimony to the Senate, according to the text of the bill if a state fails to meet the new deadline its electoral votes might not be counted by Congress (read their testimony here, the relevant part is on page 8).
Given this incredibly stiff penalty, it’s very likely that every state will work hard to ensure they comply with the deadline and their CoA is submitted, at the latest, six days before the Electoral College meets. Some will do it early, but some will also take it right down to the wire, submitting them in the last few days before the hard deadline (six days before the Electoral College meets), which would not leave time for NPV member states to use them to create their own CoAs. This seems like a big problem for NPV member states that assume they can get vote totals from other states’ CoAs.
So, to summarize: If the Certificates of Ascertainment are the “official” source of vote totals for determining the national vote count, under current law and the way states currently handle the CoA process, in most years there will be a few states for which no CoA is available before the Electoral College meets. Under the legislation introduced in the U.S. Senate, because of the shortened time frame for submitting CoAs and (again) the way states currently handle the process, there will in most years be even more states for which no CoA is available before the deadline.
This is just one example of how changes to the Electoral Count Act pose serious threats to NPV. It’s possible, of course, that this deadline change isn’t included in the final bill, or that none of the currently proposed reforms becomes law. That would leave the compact with only its current problems. Of course, currently unforeseen changes might create even bigger problems for NPV.
So, did NPV’s drafters make a huge blunder in tying the compact’s operation to a federal statute that can (and looks likely to) be changed by Congress? It’s tempting to say “yes, of course” – obviously the proposed change described here adds to the compact’s many other issues. But, to be fair – what choice did the drafters have? For the most part every state controls its own election process, including the timeline for counting and reporting results. The one thing common to every state in the presidential election process is the Electoral Count Act, and it would have been near-impossible to not draft it to function under the law as it stood at the time the compact was written.
Ultimately, the blunder wasn’t in tying the compact to a federal statute that can be changed at Congress’s discretion, it was believing that an interstate compact could cobble together a single “national popular vote” from fifty-one separate elections.
*There have been some inconsistent and contradictory statements by NPV, Inc. lobbyists and leadership about the importance of CoAs as the source of official vote totals, and there are other potential sources, mainly each state’s official canvas of votes or county-level returns. There are significant problems with those sources as detailed in numerous other posts, including: New York Submits Inaccurate Presidential Vote Count (Again), NPV still has an RCV problem, and Missed it by that much, Part 1 & Missed it by that much, Part II. For this post I focus on the Certificates of Ascertainment as these documents have long been pointed to as the primary source for vote totals under the compact.
**NPV, Inc.’s lobbyists and leadership have also been inconsistent and contradictory regarding something known as the “safe harbor” date, which occurs six days before the Electoral College meets and votes, and whether states (including NPV member states) must prepare, submit, and make public their CoA by this date. For the sake of brevity, I’m setting aside this issue here and just dealing with the incontrovertible hard deadline of the meeting of the Electoral College.
***There is, shall we say, lots of nuance and complexity regarding such a delay if NPV is in effect, fueled (once again) by inconsistent and contradictory statements made by NPV, Inc. lobbyists, leadership, and Every Vote Equal. I’m also setting that aside to keep things simple.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 72% of the way to implementing their dangerous plan.