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I’ve previously written about the inaccurate claim made by lobbyists for the National Popular Vote interstate compact (NPV) that official vote totals will always be available from every state by the time the compact needs them, as well as the serious problems with some of their responses to this issue. This post is a bit different in that it discusses a response to this problem that NPV’s lobbyists were actually correct about, but desperately wish they hadn’t shared.

In 2021 a bill in North Dakota would have kept the state’s vote totals secret until after the Electoral College meets, instead releasing percentages of the vote received by each candidate. This is a different issue than previously discussed – instead of, "Willofficial vote totals always be available?," the pair of NPV lobbyists at this hearing had to address the question, "What happens when official vote totals aren’t available?"

According to their testimony, the compact would still require member states to come up with vote totals to use in the national tabulation even if that meant having to use something other than official, certified results. As Pat Rosenstiel explained, “…it’s up to the chief election official of the member state to make a determination to the best of their ability based on the data provided from the state, right, and so they’ll get within, like, 36, a hundred votes of what the actual vote result was….” In other words, they will estimate vote totals for any state they can’t track down real vote totals for.

Saul Anuzis likewise stated that if no official vote totals were available, “…the chief election officials of the two dozen or so states belonging to the Compact are not going to throw up their hands and declare that the world has come to an end. Instead, the chief election official of each compacting state would still be required by their state’s law to ‘determine the number’ and to determine which presidential candidate received the most popular votes in all 50 states and the District of Columbia.” 

Like Rosenstiel, Anuzis also predicted the error would be small, between 36 and 68 “votes of uncertainty,” but their math is seriously flawed – using their methodology the actual difference between the real vote totals and whatever was “determined” would be in the thousands or possibly tens of thousands. And this is assuming good-faith efforts by other states’ chief election officials trying to calculate vote totals to, as Rosenstiel put it, “…assign to a Republican and a Democratic candidate… assign that as the votes coming out of North Dakota….”

For what it’s worth, I think Rosenstiel and Anuzis are correct – the compact’s requirement that member states “…determine the number of votes for each presidential slate in each State of the United States…” (Art. III, Sec. 1) would force them to come up with numbers to plug into the national tabulation even in the absence of official results from any state as well as the absence of any guidelines on how to “determine” the vote totals to “assign” each candidate.

Needless to say, relying on vote totals that that are “assigned” after a “calculation” (Anuzis’ term) are a far cry from the official, certified vote totals that NPV’s lobbyists claim will always be available and used by compact states to determine the winning candidate. As a result, NPV’s response now when their North Dakota testimony is brought up is to evade and pretend that testimony never happened, stating that NPV’s vote tabulation “is based entirely on the official certified vote count of each state” and inviting people to “read the 888 words of the National Popular Vote Compact and verify that there is nothing in the Compact that allows vote totals to be estimated.”

For years NPV’s lobbyists have been making fundamental errors and serious mischaracterizations about what should be a very basic question: How do you ensure that official, certified vote totals are available from every state to use when tabulating the national vote count, in particular from non-member states? The legislators who consider this compact deserve a straight answer rather than the evasion, fabrications, and gaslighting that NPV’s lobbyists have been dishing out.

This is the third post in a series of three; here is Part One and Part Two.