Defending the Electoral College since 2009
I am not generally prone to pointing at parts of the National Popular Vote interstate compact (NPV) and saying, “They definitely knew what they were doing here” (unless I’m being sarcastic). But there actually is one provision of NPV where it looks to me like the people writing it really did understand a potential problem and really did figure out a fairly simple and effective solution. This being NPV, of course, the one thing they definitely managed to get right has wound up as yet more evidence of how little they, or at least the lobbyists promoting the compact, understood other serious problems and the compact itself.
The basic problem the NPV authors needed to solve was how to ensure that the vote totals from each member state would be available for the other member states to use in determining what the national vote tally is for each candidate. Under the compact, the chief election official in each member state is responsible for obtaining (or, in certain circumstances, estimating) vote totals for every other state.
According to NPV’s book Every Vote Equal and numerous other printed materials and statements made by lobbyists for the compact, the source of these vote totals is supposed to be something known as a Certificate of Ascertainment. This document is prepared by each state and submitted to the Archivist of the United States, and it includes two pieces of information: the names of the electors that have been appointed and the vote totals received by each candidate’s slate of electors.
There’s a number of problems with the assumption made by NPV’s authors that these certificates should be the source used to determine the national vote totals for each candidate, most of which the authors seemingly were not aware of. But they definitely understood one conundrum: member states could not use one another’s certificates as the source of vote totals.
The main reason for this is that in order create a certificate naming the appointed electors for their own state, the chief election official in each compact member state needs to have vote totals for the rest of the country first. If the Certificate of Ascertainment is supposed to be the source of vote totals for every other state (plus Washington, DC), NPV member state would be unable to obtain vote totals from one another, each waiting for every other member state to finalize their certificates before finalizing their own. They would all be frozen, each demanding every other member state’s certificate in order to complete their own.
In order solve this, the compact’s authors included a simple but effective provision (Article III, Section 4) requiring the chief election official of each member state to transmit an “official statement” to their counterparts in every other member state that includes the vote totals in their state for each presidential ticket. This could be the state’s certified canvas (or equivalent), or a document created specifically to satisfy the compact’s requirement. Problem solved.
Hurray for NPV’s authors – they got this one right.
So what’s the issue with the lobbyists? Well, they don’t seem to understand that this provision exists, or if they do, why it exists. That’s the only conclusion I’m able to draw based on a memo produced by them earlier this year in response to my testimony to the Maine legislature. One of the things I pointed out to the committee was that the chief election official of each member state is not limited to just the Certificate of Ascertainment as the source of vote totals. The compact simply requires that vote totals come from an “official statement” produced by another state, assuming one is available. A Certificate of Ascertainment is one obvious possibility, as is the statewide canvas.
NPV’s response on this point is hysterical – and I mean that in both the “that’s really funny” way (I may have an odd sense of humor) and in the “if I were in the room with a person saying these things, I’d back slowly out of the room without taking my eyes off of that person but also try to avoid eye contact” way. In short, NPV’s lobbyists accuse me of being “deceptive” in what I told the committee, and insist repeatedly that the Certificate of Ascertainment is the “gold standard” and is “conclusive” regarding vote totals, vigorously rejecting the idea any document other than a Certificate of Ascertainment can be used to obtain vote totals from. This quote from the memo sums up the lobbyists’ claim fairly well:
The Certificate of Ascertainment is the gold standard insofar as presidential vote counting is concerned, because federal law characterizes the vote counts in the Certificate as “conclusive.”
There is an awful lot that can be said about the numerous errors and shoddy assumptions packed into that one sentence. But the most obvious problem is that the following two things cannot both be true: that, on the one hand, only a Certificate of Ascertainment can be used to obtain vote totals; and, on the other hand, that NPV member states are going to have to use something other than a Certificate of Ascertainment to obtain vote totals from one another.
I assume there’s a reason NPV’s lobbyists are so strident in their insistence that only the “gold standard” Certificate of Ascertainment can be used as the source of vote totals for other states, and seem ignorant of both the problem that would cause as well as the compact’s own mechanism for resolving the problem. But if NPV were ever to go into effect, the fact that the 20+ states in the compact would not be using Certificates of Ascertainment to obtain one another’s vote totals should put to rest the claim that these certificates are the only acceptable source of vote totals.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 76% of the way to implementing their dangerous plan.