9.29 Myths about Election Administration

Michael Maibach, a Distinguished Fellow at Save Our States and Director of the Center for the Electoral College,[713] wrote in 2020:

“The NPV scheme would have other dangerous consequences … [and] would put a President in charge of his own reelection.”[714]

Professor Robert Hardaway of the University of Denver Sturm College of Law repeated this incorrect claim in his testimony on February 19, 2010, to the Alaska Senate Judiciary Committee:

“Under the Koza scheme, who would be the national official who would decide what the popular vote is? And what would happen if a state officer decides that the popular vote tally is one figure, and someone from the federal government, like the Congressional Budget Office, the Congressional Quarterly,[715] decides that it's something else?” [Emphasis added]

Gary Gregg II, a defender of the current system of electing the President, says:

“Will we have to create and pay for a new federal agency to verify the accuracy of popular vote totals? Probably.”[716] [Emphasis added]

A brochure published by the Freedom Foundation of Olympia, Washington, during the time when Trent England was there, suggests that the National Popular Vote Compact would result in:

“nationalizing election administration, potentially putting presidential appointees in charge of presidential elections.”[717] [Emphasis added]

Trent England, Executive Director of Save Our States and Vice-President of the Oklahoma Council on Public Affairs, wrote in an op-ed:

“Because of the Electoral College, the United States has no national election bureaucracy—no presidential appointee in charge of presidential elections.”[718] [Emphasis added]

The U.S. Constitution creates a system based on state control—not federal—of presidential elections in Article II, section 1, clause 2:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

The National Popular Vote Compact does not change Article II or any other part of the U.S. Constitution.

The states would continue to control elections, as provided by the U.S. Constitution—just as they do today.

There would be no need for any state to change its procedures for compiling and certifying its popular-vote counts because of the Compact.

As to member states, the Compact merely requires that existing state officials add up the officially certified popular vote totals from all 50 states and the District of Columbia. This task would take place once every four years.

The Compact does not create any new federal or state governmental positions or bureaucracy—much less presidentially appointed federal officials.

The Founders had good reason to write Article II of the Constitution so as to give the states the power to control the conduct of presidential elections. State control over presidential elections thwarts the possibility of an over-reaching President, in conjunction with a compliant Congress, manipulating the rules governing the President’s own re-election. This dispersal of power over presidential elections to the states was intended to guard against the establishment of a self-perpetuating President. In particular, this dispersal of power to the states addressed the Founders’ concern about the possible establishment of a monarchy in the United States.

Footnotes

Trent England, Executive Director of Save Our States, warned the Missouri Senate Judiciary committee in 2016 that the National Popular Vote Compact would create a slippery slope leading to federal control of elections.

“If you have National Popular Vote … you would ultimately have disputes that would cause Americans to demand federal power over elections.”

Establishing federal control over presidential elections would require a federal constitutional amendment that would take control of presidential elections away from the states.

At the minimum, this change would require amending the current wording of Article II, section 1, clause 2 of the U.S. Constitution, which reads:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

A federal constitutional amendment must first be initiated by either Congress (by a two-thirds vote of both houses) or a federal constitutional convention. A proposed amendment must then be ratified by three-quarters of the states—either by the state legislatures or by special state ratifying conventions.

Given that amending the federal Constitution is a time-consuming multi-step process, the slope is steeply upward—and distinctly not downward or slippery.

The National Popular Vote Compact makes no changes in any state’s laws or procedures concerning the preparation of ballots, conducting early voting, operating polling places, handling absentee ballots, processing provisional ballots, counting votes, or transmitting local vote counts to state officials.

County, parish, city, town, district, and precinct election officials would administer a presidential election in exactly the same way that they do now.

The only change introduced by the National Popular Vote Compact would occur after a member state has finished tallying the statewide total number of popular votes cast for each presidential slate.

At that point, the chief election official of each state belonging to the Compact would add up the votes cast for each presidential slate in all 50 states and the District of Columbia to produce the national popular vote total for each presidential slate.

In adding up the votes from other states, the chief election official of each of the states belonging to Compact would treat every other state’s final determination of its vote for President as conclusive.

This “final determination” is typically made by a certain designated body or official (e.g., state board of canvassers, state board of elections, the Secretary of State) in compliance with the state’s statutory deadline shortly after Election Day. Any disputes would be resolved—as they are now—by state or federal courts in the state-of-origin (section 6.2.3). That is, the role of the chief election official of each of the states belonging to the Compact is entirely ministerial.

Under the Compact, the presidential slate with the largest national grand total from all 50 states and the District of Columbia would be designated as the “national popular vote winner.”

The chief election official of each member state would then certify the election of the entire slate of presidential electors that was nominated in association with the national popular vote winner.

As a matter of efficiency, the chief election officials of the states belonging to the Compact might decide to designate (by means of an executive agreement) one of their members to gather up the documentation of each state’s final determination and immediately pass that information along to each other compacting state.

The presidential electors would then meet in their states, as they do now, in mid-December and cast their electoral votes.

When a bill is first introduced in a state legislature, fiscal officials designated by the legislature typically analyze it for its impact on state finances. These fiscal officials then report their findings to the legislature in the form of what is typically called a “fiscal note.” Fiscal officials have uniformly concluded that the National Popular Vote Compact would impose no significant costs on their states.