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Possible ECA reforms demonstrate vulnerability of NPV
Sean Parnell • Feb 11, 2022

The Electoral Count Act of 1887 (ECA), a federal law establishing the process for states to certify their appointment of presidential electors and Congress to count their electoral votes, appears likely to be modified within the next few years, possibly even this year. There’s near unanimity among election policy experts that the statute could be improved, though there are competing ideas about how best to do that. Still, with both Democratic and Republican leadership supporting reforms, it seems likely something will happen.

This could be a big problem for the National Popular Vote interstate compact (NPV).

I’ve noted in the past, here and in testimony to state legislatures, that the authors of the NPV compact did a poor job. I won’t go here into the laundry list of particulars (find those at the links), but suffice it to say they failed to account for many possibilities. One of those is changes to the ECA.

The biggest problem for NPV, at least the one that first jumped out at me, is a proposal to eliminate the ‘safe harbor’ deadline in 3 U.S. Code § 5. This provision basically says that if a state has certified the appointment of its electors six days before the Electoral College meets, then those appointments “shall be conclusive” and presumed valid when Congress counts the state’s electoral votes.

The NPV compact relies heavily on this safe harbor. The drafters assumed (mistakenly, it turns out) that the document each state creates to certify its electors – called the Certificate of Ascertainment – would be publicly available from every state before the Electoral College meets. These certificates are critical to NPV because they are an official document with popular vote totals from each state and are supposed to be the “official” source of vote totals that compact member states use to determine a winner.

When I and others have pointed out that these certificates might not be available from every state by the time that NPV states need them, the response is usually something to the effect of, “the safe harbor deadline compels states to produce and make these certificates available in plenty of time for the compact to work.” For example, when asked in a 2020 hearing in Virginia about the availability of vote counts from states that are not in the compact, NPV’s lobbyist explained “…under Federal law, states are required by a certain period of time to… report their Certificates of Ascertainment to the federal government… the certificates of ascertainment are required to be filed six days before the meeting of the Electoral College and it reports the state’s vote….”

As is often the case, the NPV lobbyist got it completely wrong regarding the safe harbor date being a requirement (here’s a great paper by Professor Derek Muller at the University of Iowa College of Law explaining the issue, though not in reference to NPV).

Although NPV’s lobbyist was wrong in terms of what the safe harbor provision requires of states, I will say that the existence of the safe harbor would help with the compact if it took effect. It pushes states to submit their certification of electors well ahead of the day the Electoral College meets, and most states – but not all – usually meet that deadline. The reason New York consistently submits inaccurate vote counts on its Certificate of Ascertainment is likely because New York’s State Board Of Elections wants to meet the safe harbor deadline and it isn’t about to let incomplete results slow it down (but this may not help NPV, in that the safe harbor deadline pushes at least New York to disregard the accuracy of its vote count).

But, given the important role that NPV’s drafters and lobbyists place on the safe harbor deadline (the index of the fourth edition of Every Vote Equal, published by National Popular Vote, Inc., indicates 35 pages that refer to the safe harbor deadline, while more than fifty pages address Certificates of Ascertainment), the obvious question is: what would happen if the safe harbor date were eliminated?

This is hardly idle speculation. Congresswoman Zoe Lofgren (D-Calif), who chairs the House Committee on Administration, released a staff report a few weeks ago outlining several problems with the ECA as well as proposed reforms. Sans footnotes, here’s what her staff recommended regarding the safe harbor provision:

A) Eliminate the Safe Harbor

The safe harbor system does not work. 3 U.S.C. § 5 does not explain how to decide safe harbor status and as noted, Congress has never used the safe harbor provision in any way.

Moreover, the scattered nature of modern election litigation makes it impossible to apply the safe harbor coherently. To give a few examples from 2020: do federal decisions qualify for safe harbor status? If so, which ones? Does the answer depend on the relief requested, or the identity of the plaintiff? What does it mean for a contest to achieve “final” resolution by the safe harbor date? What if a state has multiple cases touching on the election, only some of which are resolved by the safe harbor date? Does the absence of a “controversy or contest” whatever those terms mean, result in the absence of safe harbor status, even if the state’s results are obvious?

One might instinctively seek to redesign the safe harbor, but the balance between state and federal litigation (which did not exist when the ECA was enacted) has rendered that task exceedingly difficult. There is also the challenge of designing an enforcement mechanism. Some person or entity must ascertain the safe harbor “status” to which Congress is bound, but who? The courts? Which courts? The presiding officer? Far simpler would be to discard the safe harbor and ensure an accurate count by other means.

There’s no certainty that the safe harbor deadline will be eliminated or altered as part of any upcoming reform of the ECA. But if it is, that seems pretty bad for NPV. One of the pieces of federal law relied on by the compact to function may wind up on the scrap heap.

The compact was designed (badly, but they tried) to fit within the framework of the ECA as it has stood for 135 years, but given that changes to the ECA are now likely, it’s worth asking – what other problems for NPV will be created? As various reforms are drafted and redrafted, we’ll learn more.

The most important fact about all this is the instability of the NPV compact. While the Constitution establishes the Electoral College as a state-by-state, two-step process, the NPV compact attempts to undo this without actually changing the Constitution. That’s clever, but it means that it relies on changes to state laws alone (and only in certain states). Federal law may or may not mesh with the compact, especially as that law changes.