1. Fact or Myth?
There is no official national popular vote number compiled in time, such that it could be used to officially and accurately determine the winner in any close election.
According to NationalPopularVote.org:
20.1 MYTH: There is no official count of the national popular vote.
It is sometimes asserted that there is no official national vote count for President and, therefore, the National Popular Vote bill would be impossible to implement. Contrary to this assertion, existing federal law (section 6 of Title 3 of the United States Code) requires that an official count of the popular vote from each state be certified and sent to various federal officials in the form of a “certificate of ascertainment…
Reality:
Yes: There is an official, unaudited, national popular vote number which can be determined by examining data posted by the federal government at: http://www.archives.gov/federal-register/electoral-college
Reality: The number is not compiled and available in time, such that states could use the number to determine, under the Compact, how to allocate their electoral votes. Looking at the details for 2008,
http://www.archives.gov/federal-register/electoral-college/state_responsibilities.html#vote2
We find:
- States must prepare a Certificate of Ascertainment listing electors and the votes that they received: “The original Certificate and two certified copies (or duplicate originals) should be sent to the Archivist as soon as possible after the November 4 election results are finalized. At the very latest, they must be received by the electors on the statutory deadline of December 15, 2008 and submitted to the Archivist no later than December 16, 2008.”
- “On the first Monday after the second Wednesday in December (December 15, 2008), the electors meet in their respective States. Federal law does not permit the States to choose an alternate date for the meeting of electors – it must be held on December 15, 2008… At this meeting, the electors cast their votes for President and Vice President.”
- Since states are not required to submit electors and their official unaudited vote totals to the Archivist until December 16th, the national popular vote number obviouisly could not be guaranteed to be available on December 15th. And since the Certificate cannot be created until after the electors of a state have voted, the final official unaudited national popular number could not be official until all states electors have already voted. But wait…
- “Any controversy or contest concerning the appointment of electors must be decided under State law at least six days prior to the meeting of the electors.”
- So, each state must actually appoint its electors six (6) days before they must meet and vote which is seven (7) days before each state is required to send the state’s official unaudited popular vote numbers to Washington. But wait…
- “The statutory deadline for the designated Federal and State officials to receive the electoral votes is December 24, 2008. Because of the very short time between the meetings of the electors in the States on December 15 and the December 24 statutory deadline, followed closely by the counting of electoral votes in Congress on January 6, 2009, it is imperative that the Certificates be mailed as soon as possible.”
- So, the real deadline for each state’s popular vote number arriving in Washington, would be nine (9) days after the vote for electors, and fifteen (15) days after electors have to be deterimed. Presumably some time is also needed to accurately post that information so that the official, unaudited numbers would be available for state officials to review.
2. Fact or Myth?
There is no national recount available for close elections, to establish an accurate number.
According to NationalPopularVote.org:
3.4 MYTH: Conducting a recount would be a logistical impossibility under a national popular vote.
A recount is not an unimaginable horror or a logistical impossibility. All states routinely make arrangements for a recount in advance of every election. A recount is a recognized contingency that is occasionally required in the course of conducting elections, and recounts do indeed occur about once in every 332 elections. The personnel and resources necessary to conduct a recount are indigenous to each state. A state’s ability to conduct a recount inside its own borders is unrelated to whether a recount is occurring in another state.
Reality: Most states, but not all have some type of recount law.
- According to the CEIMN Searchable Recount Database, only 21 states have laws which provide for recounts on close votes: http://ceimn.org/ceimn-state-recount-laws-searchable-database/
Reality: A national recount would be a legal and technical impossiblity. NationalPopularVote.org claims to refute six Myths about Recounts, yet none address the central issue that there would be no recounts of a close national popular vote:
- But state recount laws are based on close votes within a state, none would be trigered by a close national popular vote.
- As covered previously, there is no official national popular vote number compiled in time for states to determine their Electoral College votes – thus there would be no number available in time to trigger a national recount, even if it were possible to have a national recount.
- There is no provision for a recount within the Compact, even if there was such a provision, it could only apply to states signing the Compact.
- There would be no reason for states controlled by the party of the apparent winner to voluntarily agree to a recount.
Reality: Even if somehow states agreed to a national state by state recount, the Supreme Court can be expected to rule as it did in Gore v. Bush that it would be unfair since it would not be uniform:
- “Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them …there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.” http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949
- Even though the Court claimed the decision was not to be used as a precident, on what basis would they rule differently when faced with a challenge to a far from uniorm state by state recount? See Moritz School of Law Profesor Edward B. Foley’s comments on Gore v. Bush and equality: http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8099
3. Fact or Myth?
Currently the Electoral College limits the risk and the damage to a few swing states in each election. With a national popular vote, errors, voter suppression, and fraud in all states would count against the national totals.
According to NationalPopularVote.org:
3.6 MYTH: Political fraud and mischief would be encouraged under a national popular vote.
The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current state-by-state winner-take-all system magnifies the incentive for fraud and mischief because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.
Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by placing insufficient or defective voting equipment into the other party’s precincts, by selectively and overzealously purging voter rolls). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes—far more than the 537 popular votes that he needed to carry Florida and win the White House in 2000. However, an incident involving 6,000 votes would have been a mere footnote if the nationwide count had governed the presidential election (where Gore’s margin was 537,179).
Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a 1979 Senate speech by saying:
“One of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes.”
….
Yes: “The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote”
Reality: “the current state-by-state winner-take-all system magnifies limits to swing states the incentive for fraud and mischief because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.”
Reality: Because, under the national popular vote, all of the nation’s electoral votes would be awarded to the candidate who receives a bare plurality of the votes in all states, the national popular vote would magnify the opportunity and magnify the incentive. It would magnify the opportunity to all 50 states and the District of Columbia. If would magnify the incentive since fraud and mischief in one or all of those states could change the national popular vote plurality and take all 538 electoral votes.
Yes: “Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states… In the electoral college system, one fraudulent vote could mean 45 electoral votes.”
Reality: Using the same logic, under the national popular vote, the national outcome can be affected by mischief in one or all of the 50 states and the District of Columbia, including in one or more of the closely divided battleground states.
Reality: Senator Bayh is incorrect. If one vote “could mean 45 electoral votes” under the Electoral College, then under the National Popular Vote one vote could mean all 538 electoral votes, not as claimed by Senator Bayh: “one vote in the return”.
4. Fact or Myth?
With the Compact there is every reason to believe that any close election would be decided by partisian action of the Congress or the Supreme Court. As in Gore v. Bush, since the founding, close election controversies have all been decided in seemingly partisian decisions by Congress, special commissions, or the Supreme Court.
Reality:
Quoting Professor Edward B. Foley and Nathan L. Colvin, of the Moritz School of Law, in their recent paper, “The Twelfth Amendment: A Constitutional Ticking Time Bomb”:
Although the Supreme Court’s decision in Bush v. Gore averted congressional confrontation over electoral votes pursuant to the deficient framework of the Twelfth Amendment, the episode signals the possibility that a similar dispute might arise again—but this time without the saving intervention of the Supreme Court. Although the events of 2000 produced passing interest in the mechanism established by the Twelfth Amendment, since then there has been no sustained plan to prepare the nation if a dispute over electoral votes goes all the way to Congress. Nevertheless, the history of the Twelfth Amendment and the commentary on it during the nineteenth century show that the nation needs a contingency plan of this sort.…like putting off preparations to defend against a once-a-century category five hurricane, it is easy to postpone considerationof a constitutional amendment designed to protect against another debacle of the kind that occurred in 1876… it is also worth proposing a second-best legislative solution that would modify the Electoral Count Act… either of the two major political parties will want to block any measure it perceives as disadvantageous to its interest …our country has embarked on a meandering journey of ad hoc approaches to resolving electoral disputes. The decision of the Supreme Court in 2000 marked only the most recent stop on this journey but was met with as much dissatisfaction as previous historic stops such as the Electoral Commission and the Twenty-second Joint Rule. Instead of waiting for the next electoral dispute and hoping that the Court or a bipartisan split in Congress might save our country, Congress should address this historic problem with an amendment to the Constitution that clearly addresses the electoral count procedures… The starting issue for an analysis of electoral vote determination under the Constitution is ascertaining where the Constitution vests the power to count and/or determine the validity of votes, and this is where the first ambiguity comes from. There are four possible actors: (1) the Vice President of the United States acting as the President of the Senate, (2) the two houses of Congress acting together, (3) the two houses of Congress acting separately, and (4) the states.13 The text of the Twelfth Amendment is unclear on this subject, and, throughout our history, various theories have prevailed.
They also quote Justice Joseph Story:
In the original plan, as well as in the amendment, no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes . . . . It seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary, than to open the certificates, which were produced, in the presence of both houses, and to count the names and numbers, as returned.
