One concern I raised early on about the National Popular Vote interstate compact (NPV) is that it could allow election officials of member states to concoct vote totals for non-member states if, for some reason, there were no final, certified vote totals available. I haven’t raised the point in a while because NPV has so many other flaws (no provisions for recounts, conflicting state laws, relying on non-member cooperation, inaccurate counts, no majority requirement, etc.).
Thanks to a hearing in North Dakota last week, this defect is back in the spotlight.
The authors of the NPV compact assumed that official vote totals will always be available from every state in time for NPV member states to use them to determine the winner. But there are several reasons why official vote totals might not be available, including a slow vote-counting process, a state’s Certificate of Ascertainment not yet being publicly available (NPV’s advocates and lobbyists have long pointed to this document as the source of official vote totals that are to be used), a recount, legal challenges, or a deliberate attempt by a state to thwart the compact.
So what would happen if NPV were in effect but official vote totals weren’t available for one or more states? The compact simply says that the chief election officer (CEO) in each NPV member state “shall determine the number of votes for each presidential slate in each state of the United States and in the District of Columbia.” There are no limitations or instructions in that section on how the CEO is to determine vote totals for other states. In a separate section, the compact requires the CEO to use the results made in “an official statement containing the number of popular votes in a state” but is silent on what happens if no such “official statement” is available.
A pair of NPV lobbyists did a good job last week in North Dakota explaining what happens in such a case, but anyone who thinks only real votes should be used to determine who wins is in for a disappointment.
The North Dakota House of Representatives held a committee hearing last week regarding SB 2271, a bill designed to thwart NPV by preventing the release of presidential vote totals before the Electoral College meets. At the hearing, NPV lobbyist Saul Anuzis explained in written testimony that NPV state CEOs would have a lot of options for coming up with vote totals.
Because the North Dakota bill would allow the release of percentages, just not the actual vote totals, Anuzis explained that the CEOs of NPV member states could simply apply those percentages to “the total number of voters who are publicly reported to have voted in the simultaneous non-secret voting for Members of Congress, state legislators, other officials, and ballot propositions.” He later suggests that CEOs could also apply the percentages to the “reported number of persons actually going to the polls or the number of voting-age persons in the state” or “the state’s entire population.”
And it appears he is correct – the compact would give the CEO of each NPV member state the latitude to use any of these options if official vote totals are unavailable. But there’s a big problem – contrary to Anuzis’ claim in his testimony that these methods would give a vote total accurate to a few dozen votes, it would actually produce vote totals that are off by thousands, tens of thousands, or even hundreds of thousands of votes! (Warning: math ahead.)
In 2020 there were 361,819 votes cast in North Dakota for presidential electors. The next two statewide offices, Governor/Lt. Governor and Congressional Representative, received 357,659 and 355,598 total votes, respectively. There were 293,049 total votes cast in the statewide race for Justice of the Supreme Court.
Estimating the vote count for North Dakota using any of these available vote totals would literally erase anywhere from 4,160 to 68,770 votes, while applying the available percentages to North Dakota’s voting-age population (570,955 according to the U.S. Census Bureau) would create 209,136 extra votes from North Dakota. Using the entire population (762,062, again according to the U.S. Census Bureau) would add 400,243 votes to the total, more than doubling the actual number of votes for president.
And this being North Dakota, all those missing or extra votes wouldn’t be evenly split between candidates – Donald Trump beat Joe Biden by roughly two-to-one last year, meaning that if a CEO were to use the total population, which as Anuzis indicated would be allowed under NPV, Donald Trump would have netted about 133,000 votes.
That was not enough in 2020 to change the outcome, of course, but in a close national election that number of phantom votes could make a difference—it certainly would have in 1960, where either Kennedy won the popular vote by about 113,000 votes or Nixon did by about 60,000 votes, depending on how you view the Alabama results that year.
The other NPV lobbyist who spoke at the hearing, Pat Rosenstiel, explained much the same thing but also said that the CEOs of member states could simply determine that North Dakota had zero votes cast for any candidate.
So the full range of options for NPV member state CEOs would be to record zero votes out of a state that, for whatever reason, doesn’t have official vote totals available on the timeline that the compact demands, or to assign vote totals equal to the state’s entire population, possibly doubling (or more) the state’s actual vote totals.
That’s… a pretty big range. The raw numbers get a lot bigger if we’re talking about a more populous state—millions or even tens of millions of votes that can be added or subtracted based on the whims of state election officials, which could change the outcome of a presidential election under NPV.
The North Dakota hearing revealed more problems with NPV giving state CEO’s the power to make up numbers, and those will be covered in a future blog post.