20. Myths about the Mechanics of a National Popular Vote
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." Appendices E, F, G, H, and I of this book show the certificates of ascertainment from several states. The certificates of ascertainment from all 50 states and the District of Columbia are available online for the 2000 and 2004 elections.107
20.2 MYTH: A single state could frustrate the National Popular Vote compact by making its election returns a state secret.
National Popular Vote has received several e-mails asking a question along the following lines:
"Couldn't just one small swing state, one that loves the Electoral College and the campaign attention, decide to turn its popular vote totals into a state secret, thereby ruining the pact? What's to stop a state from choosing to count votes behind closed doors?"
Existing federal law (section 6 of Title 3 of the United States Code) requires each state to certify the number of votes cast for each presidential elector prior to the meeting of the Electoral College in mid-December.
"It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State.…"108
Appendices E, F, G, H, and I of this book show the certificates of ascertainment from several states. The certificates of ascertainment from all 50 states and the District of Columbia are available on-line for the 2000 and 2004 elections.109
Of course, making election returns secret is not within the realm of the politically possible in the real world. This question assumes that there is a state in the United States whose legislature, governor, and voters would permit making election returns secret because of their strong affection and attachment to the current winner-take-all rule (i.e., awarding all of a state's electoral votes to the candidate who receives the most votes in the state). In fact, a mere 20% of the public supports the current state-by-state winner-take-all system (with 10% undecided). Moreover, there is very little difference in the level of political support for a national popular vote from state to state. Support for a nationwide election for President is 74% in Arkansas, 70% in California, 73% in Connecticut, 71% in Maine, 73% in Massachusetts, 70% in Missouri, 73% in Michigan, 74% in Rhode Island, 75% in Vermont, and 77% in Washington.110 More than 70% of the American people have favored a nationwide election for President since the Gallup poll started asking this question in 1944. The 2007 Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President.
20.3 MYTH: The Electoral College provides a way to replace a President-Elect who dies, becomes disabled, or is revealed to be manifestly unsuitable after the people vote in November, but before the Electoral College meets in December.
Daniel H. Lowenstein points out that the Electoral College provides a way to replace a President-Elect who dies, becomes disabled, or is revealed to be manifestly unsuitable111 after the people vote in November, but before the Electoral College meets in December. Lowenstein calls this
"what might some day turn out to be the Electoral College's greatest benefit."112
Lowenstein continues:
"What is needed for such problems is a political solution. And the Electoral College is ideal for the purpose. The decision would be made by people in each state selected for their loyalty to the presidential winner. Therefore, abuse of the system to pull off a coup d'etat would be pretty much out of the question. But in a situation in which the death, disability or manifest unsuitability plainly existed, the group would be amenable to a party decision, which seems to me the best solution."113
The National Popular Vote bill does not abolish the Electoral College. It reforms the method of choosing the presidential electors so that they reflect the choice of all the people of the United States, instead of the choice of the people on a state-by-state basis using the winner-take-all rule. In the hypothesized scenario, the presidential electors would be available to vote for a replacement (presumably the winning party's vice-presidential nominee) under either the National Popular Vote bill or the current system.
107 For the 2004 presidential election, see http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html.
108 United States Code. Title 3, chapter 1, section 6.
109 http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html.
110 These polls (and many others) are available on National Popular Vote's web site at http://www.nationalpopularvote.com/pages/polls.php#2007WPKHU.
111 As examples of "unsuitability," Lowenstein hypothesizes the occurrence, after Election Day in November, of three scandals that recently occurred just before Election Day. The examples include the ethical scandal involving former New Jersey Senator Robert Torricelli in 2002 that occurred shortly before Election Day, the indictment of a Texas congressional nominee in 2006, and a sexual scandal involving a Florida congressional nominee in 2006. The revelation that a President-Elect was the "Manchurian candidate" would be another example.
112 Debate entitled "Should We Dispense with the Electoral College?" sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.
113 Debate entitled "Should We Dispense with the Electoral College?" sponsored by PENNumbra (University of Pennsylvania Law Review) available at http://www.pennumbra.com/debates/pdfs/electoral_college.pdf.
