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Defending the Electoral College and the Constitution since 2009

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Unfinished Recounts and litigation could thwart the compact
Sean Parnell • May 10, 2024

One thing is clear from my years defending the Electoral College: the people at NPV, Inc. don’t understand the presidential election process or how the compact is supposed to work. For example, in a memo distributed to legislators in several states, its lobbyists claim the U.S. Supreme Court requires that “…all counting, recounting, and administrative and judicial proceedings must be conducted so as to reach a final determination within six days before the Electoral College meeting….” This mistaken belief has led them to conclude it is impossible for counts and recounts to extend past the date by which compacting states need final vote totals from every other state.

The Supreme Court ruled in Bush v. Gore that it was the intent of the Florida legislature when passing its election code that the State of Florida meet what was known as the “safe harbor” date six days before the Electoral College meets:

“The Supreme Court of Florida has said that the legislature intended the State’s electors to “participate[e] fully in the federal electoral process,” … That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12.”

But that decision applied to Florida law and was binding only in Florida. The mistake made by NPV’s lobbyists and leadership was to assume it applied to other states as well. Not only could states continue their counting (and recounting) after the six-day “safe harbor” deadline, they often did.

The 2022 Electoral Count Reform Act (ECRA) turned the previously optional “safe harbor” deadline into a firm federal deadline. But ECRA also includes an entirely new section that allows “an aggrieved candidate for President or Vice President” to challenge the issuance of a Certificate of Ascertainment before a special 3-judge panel and stipulates that a Certificate of Ascertainment “required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates….”

One of the obvious remedies for an “aggrieved candidate” is a recount, which can be ordered by courts and conducted after the six-day deadline. Michigan even updated its laws in late 2023 to conform to ECRA and spelled out in statute the process to be used if a recount extends beyond the 6-day deadline. This would be a problem for NPV because member states would still be required to determine the number of votes in every state before the deadline, leaving them with a choice of using the initial inaccurate or incomplete vote totals, or estimating vote totals for states still counting their votes.

The Electoral Count Reform Act can extend recounts, litigation, and other challenges, and allow substitute Certificates of Ascertainment after the deadline six days before the Electoral College meets, which would interfere with the NPV compact by preventing them from obtaining the vote totals they need in time to accurately determine the outcome. Just one more reason for states to avoid joining NPVIC.