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Safe Harbors and Sandy
Sean Parnell • Apr 15, 2020

In an earlier post I noted that Rhode Island Secretary of State Nellie Gorbea, a supporter of the National Popular Vote Interstate Compact (NPV) and the chief elections officer in her state who would be responsible for executing the compact (Rhode Island is an NPV member state), acknowledged that she and her colleagues in other states are still uncertain about how the “mechanics” of counting the votes would work. In this post I want to dive into a little more detail on what some of the problems are.

For many years NPV has answered the question “How would we count the votes?” by pointing to something called a “Certificate of Ascertainment” (CoA) a document filed by each state plus DC with the National Archives (there are other copies as well, which after the Electoral College meets are attached to the “Certificate of Vote” that is submitted to and counted by Congress and also sent to the National Archives and elsewhere). The CoA includes a state’s vote totals for every candidate’s slate of electors, which is imagined by NPV’s advocates and lobbyists to be the ideal source of “official” vote totals, and also certifies the names of the electors who have been appointed.

There are two significant problems with relying on each state’s CoA to obtain vote totals for use in determining the “national popular vote winner.”

  1. Many states do not submit their Certificates of Ascertainment in time to be used by NPV member states
  2. The vote totals on the Certificates of Ascertainment are not necessarily accurate

Regarding the lack of timeliness, the compact language specifies that prior to the meeting of the Electoral College, NPV member states must determine who the “national popular vote winner” is. It assumes the certificates from all 50 states plus DC will be available in plenty of time for member states to do this.

It also assumes that the certificates will be available at least six days before the Electoral College meets, by something known as the “safe harbor” deadline. States meeting the deadline are assured that, when Congress meets to count the electoral votes, they cannot be challenged (there’s some dispute over the constitutionality of this “safe harbor” but that’s beyond the scope of this post). In most instances it isn’t all that important whether a state meets the deadline or not – it’s only when there’s a serious dispute over which slate of electors has been appointed (think Florida 2000) that it’s crucial.

It would also be crucial if a state were attempting to certify a slate of electors different than the slate that actually received the most votes in that state.

Because the “safe harbor” deadline today doesn’t matter in most cases, states routinely miss it. The book Every Vote Equal, the mammoth tome published by National Popular Vote, Inc., actually illustrates this point well on page 820 (Appendix J) of its 4th edition. There it lists the dates of the certificates for the 2000, 2004, and 2008 elections, and shows numerous instances of certificates being submitted after the “safe harbor” deadline. Tardy states on the list include California, Colorado, Maryland, Massachusetts, Missouri, New Jersey, New York, Pennsylvania, and Virginia.

The more recent 2012 and 2016 elections don’t show a lot of improvement either, as can be discovered by reviewing the dates on the certificates available at the National Archives (2012 and 2016). In some instances, the certificates are actually dated after the Electoral College met. Needless to say, this poses a problem for NPV – how can it obtain vote totals from the certificates before the Electoral College meets if states don’t submit them until after the Electoral College meets? Without the help of H.G. Wells, Doc Brown, or Tony Stark, it doesn’t seem possible.

Many states (but not all) will have submitted their CoA before the “safe harbor” deadline or Electoral College meets, but even this doesn’t ensure they will be available to NPV member states – the certificates that are completed on or shortly before either date are either literally in the mail to the National Archives or sitting in a folder on the governor’s or secretary of state’s desk waiting for the meeting of electors. They generally aren’t available to the public or, more importantly, to NPV member states.

Which means, of course, that when an NPV member state goes to count up the votes to determine the “national popular vote winner” there are going to be some pretty significant gaps, at least if it was planning on getting vote totals from the Certificates of Ascertainment.

There are alternative sources of vote totals, of course – certified election results from the state come immediately to mind – but here too there’s no reason to believe they would be available in time for the NPV compact to operate as planned. For example, in 2012 the state of New York didn’t certify its election results until late December, well after the Electoral College had met (more on that in a moment). California also certified its election three days after the “safe harbor” deadline in 2012.

So the “official” vote source for NPV may not be available in time for the compact to work, and the obvious backup isn’t necessarily available either. Just as serious, the vote totals included on the certificates are not necessarily accurate.

In 2012, New York’s CoA was missing about 415,000 votes for President Obama and Governor Romney (you can compare the vote totals for both candidates here: 2012 NY Certificate of Ascertainment, dated December 10, and 2012 NY Board of Elections results, dated March 20, 2013).

The reason for the massive discrepancy is understandable, though of little comfort – Hurricane Sandy hit the East Coast in late October, and as a result of the storm many New Yorkers wound up voting out of their own precincts (have wisely evacuated their homes and neighborhoods). As a result, counting votes in the Empire State was a bit more chaotic than normal in 2012.

Because President Obama’s slate of electors was already ahead by well over a million and a half votes at the time New York submitted its CoA, and it was only being used to certify which slate of electors would be casting its electoral votes, 415,000 missing votes from the certificate posed no real issue. However, under NPV, that many missing votes would be a serious problem, as under NPV every other state that was a member of the compact would be forced to accept vote totals known to be incomplete and inaccurate.

It’s also worth noting that, even without a hurricane in 2016, New York still managed to leave about 95,000 votes off of its CoA. And the problem of inaccurate vote totals isn’t confined to New York – Indiana’s 2016 certificate appears to have about 4,000 extra votes compared to the state’s certified vote totals. Other states such as Connecticut and Oregon also had discrepancies between their 2016 certified totals and what is on their CoA, though these are generally only a few hundred missing (or extra) votes in each state.

Ultimately, the issue is that NPV is trying to cobble together a “national popular vote” total from 51 separate elections that were never designed to be added together for any official purpose, and that are only appropriately used to determine which slate of electors has been elected within each state based solely on votes within that state. There remains no “official” source of votes that can reliably be used to determine, accurately and in a timely manner, which candidate has received more votes throughout the entire country.

NPV’s advocates and lobbyists have sometimes disputed this characterization of Certificates of Ascertainment as the “official” source of vote totals to be used by NPV member states. I’ll explain the issue in greater depth in another post, but for now I’ll simply copy from page 580 of Every Vote Equal, the book published by National Popular Vote, Inc.:

Myth: There is no official count of the national popular vote.

Quick Answer: Current federal law provides for an official count of the popular vote for President from each state in the form of a public “Certificate of Ascertainment.”