9.30 Myths about Vote Counting

In written testimony to the Michigan House Elections Committee on March 7, 2023, Sean Parnell, Senior Legislative Director of Save Our States (the leading group employing lobbyists to oppose the adoption of the National Popular Vote Compact) said:

“The core defect of the compact … is that there is no official national vote count.”[719] [Emphasis added]

Parnell has also written:

“The NPV compact also risks causing an electoral crisis due to its poor design. There is no official national popular vote count.”[720] [Emphasis added]

Despite Parnell’s denials, there is an official national popular vote count.

Long-standing federal law requires that each state issue a certificate containing its vote count.

Since 1792, federal law has required each state to issue a certificate reporting the official results of the presidential election.[721]

Vote counts commonly appeared in pre-1887 certificates.

The Electoral Count Act of 1887[722] included a specific requirement that each state’s Certificate of Ascertainment contain the number of popular votes (the “canvass”) received by each candidate.[723]

Current federal law (the Electoral Count Reform Act of 2022) provides (in section 5):

“Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment. … Each certificate of ascertainment of appointment of electors shall set forth the names of the electors appointed and the canvass or other determination 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.”[724] [Emphasis added]

Because every state today uses the so-called “short presidential ballot,” each state’s officially certified vote count consists of the number of popular votes received by each presidential-vice-presidential slate (section 2.14).

Congress passed the Electoral Count Reform Act of 2022 after reviewing the tumultuous events of January 6, 2021.

The 2022 Act contains numerous specific provisions to prevent:

• a recurrence of various maneuvers that occurred after the 2020 presidential election;
• the occurrence of various hypothetical scenarios that were bandied about—but never executed—by those challenging the 2020 election; and
• the occurrence of specific hypothetical scenarios that had been raised in recent years by opponents of the National Popular Vote Compact.

For example, several provisions of the 2022 Act were aimed at countering various hypothetical scenarios involving the issuance of each state’s Certificate of Ascertainment and the prompt transmission of the Certificate to the federal government.

Section 5(b)(1) of The Electoral Count Reform Act of 2022 provides:

“It shall be the duty of the executive of each State (1) to transmit to the Archivist of the United States, immediately after the issuance of a certificate of ascertainment of appointment of electors and by the most expeditious method available, such certificate of ascertainment of appointment of electors.” [Emphasis added]

Federal law also requires that the Certificates at the National Archives be “public” and “open to public inspection.”

The legal definition of the “national popular vote total” is in the National Popular Vote Compact.

When it takes effect, the National Popular Vote Compact becomes the state law governing the appointment of presidential electors for states belonging to the Compact.

The Compact specifies that the national total be obtained by adding up the officially certified number of popular votes received by each presidential candidate in each state. The first clause of Article III of the Compact provides:

“The chief election official of each member state shall determine the number of votes for each presidential slate in each state … and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.”[725] [Emphasis added]

The Compact further requires the chief election official of each member state to treat as “conclusive” the officially certified “final determination” of each state’s presidential vote counts (discussed in detail in section 9.30.3 and section 9.30.4).

Because of the requirement to treat the officially certified vote counts from each state as “conclusive,” the chief election official of each state belonging to the Compact will be adding up the same vote counts.

Parnell tries to characterize the process of adding up the 51 numbers for each presidential candidate as some kind of unsolvable puzzle. He told the Minnesota House Elections Finance and Policy Committee on February 1, 2023:

“There is no official national popular vote count. There are 51 official state vote counts that national popular vote attempts to cobble together.”[726] [Emphasis added]

However, there is no puzzle, cobbling, or ambiguity when it comes to performing ordinary arithmetic to add up the officially certified vote count that existing federal law requires every state to provide and that every state already routinely produces.

In fact, the National Popular Vote Compact arrives at the “national popular vote total” in the same way as the proposed constitutional amendment that the U.S. House of Representatives passed by a bipartisan 338–70 vote in 1969. Both are based on ordinary arithmetic applied to the officially certified vote counts that existing federal law requires every state to provide and that every state already routinely produces.

The proposed amendment passed by the House in 1969 simply said:

“The pair of persons having the greatest number of votes for President and Vice President shall be elected…”[727] [Emphasis added]

An examination of the other proposed constitutional amendments that have been introduced in Congress since 1969 contain similar common-sense wording based on applying simple arithmetic to the officially certified vote counts produced by the states (chapter 4).

In short, the various constitutional amendments that have been considered over the years and the National Popular Vote Compact would use the same long-standing laws and procedures as the current system.

A new three-judge federal court has been created to ensure the timely issuance and transmission of each state’s presidential vote.

To ensure the timely issuance and transmission of each state’s Certificate of Ascertainment, the Electoral Count Reform Act of 2022 created a special three-judge federal court whose sole function is to enforce the federal requirement for the timely “issuance” and prompt “transmission” of each state’s Certificate of Ascertainment.

This new court is open only to presidential candidates.

Given that the Constitution provides that the Electoral College meet on the same day in every state, this court operates on a highly expedited schedule. Time-consuming delays (such as the five-day notice of 28 U.S.C. 2284b2)[728] do not apply. There is expedited appeal to the U.S. Supreme Court. All of the actions of both the three-judge court and the Supreme Court are to be scheduled so that a final conclusion is reached prior to the Electoral College meeting.

Thus, this special court enables presidential candidates to obtain timely relief from, for example, a rogue Governor who failed or refused to issue the state’s Certificate of Ascertainment, issued an incorrect Certificate, or attempted to slow-walk the transmission of the Certificate to federal authorities.

Specifically, the 2022 Act provides:

“(1) In general.—Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules:

“(A) Venue.—The venue for such action shall be the Federal district court of the Federal district in which the State capital is located.

“(B) 3-judge panel.—Such action shall be heard by a district court of three judges, convened pursuant to section 2284 of title 28, United States Code, except that—

(i) the court shall be comprised of two judges of the Circuit court of appeals in which the district court lies and one judge of the district court in which the action is brought; and

(ii) section 2284(b)(2) of such title shall not apply.

“(C) Expedited procedure.—It shall be the duty of the court to advance on the docket and to expedite to the greatest possible extent the disposition of the action, consistent with all other relevant deadlines established by this chapter and the laws of the United States.

“(D) Appeals.—Notwithstanding section 1253 of title 28, United States Code, the final judgment of the panel convened under subparagraph (B) may be reviewed directly by the Supreme Court, by writ of certiorari granted upon petition of any party to the case, on an expedited basis, so that a final order of the court on remand of the Supreme Court may occur on or before the day before the time fixed for the meeting of electors.

“(2) Rule of construction.—This subsection—

“(A) shall be construed solely to establish venue and expedited procedures in any action brought by an aggrieved candidate for President or Vice President as specified in this subsection that arises under the Constitution or laws of the United States; and

“(B) shall not be construed to preempt or displace any existing State or Federal cause of action.” [Emphasis added]

In short, federal law guarantees the timely availability of the official count of the certified number of popular votes for each presidential-vice-presidential slate in each state and the District of Columbia before the Electoral College meets.

Other provisions of the Electoral Count Reform Act of 2022

The 2022 Act eliminated several avenues for mischief that existed under earlier federal law.

For example, the 1887 Act contained vague language referring to a Certificate of Ascertainment coming “from a state.” After the 2020 presidential election, this vague wording was used to open the door to fraudulent Certificates originating from non-governmental sources such as losing candidates for the position of presidential elector (so-called “fake electors”).

To foreclose the possibility of a Certificate coming from a non-governmental source in the future, the 2022 Act specifies that only one state official (by default, the Governor) has the power to issue the Certificate. Moreover, this single Certificate may be subsequently revised only by court action.

The 1887 Act contained another procedure that was open to potential abuse. In the contested 1876 Tilden-Hayes election, there were competing Certificates from several states—typically one from the Governor and another governmental source such as the Secretary of State or the Board of Canvassers. The 1887 Act addressed the possibility of Certificates coming from more than one source by providing a tie-breaking procedure. Specifically, if the U.S. House and U.S. Senate were to disagree on which competing Certificate to accept, the impasse would be resolved by the state’s Governor. One of the hypothetical scenarios that was bandied about—but never executed—by those challenging the 2020 election was based on certain state Governors overriding the voters of their own state. The 2022 Act eliminated this potential avenue for abuse.

The new three-judge court does not replace any existing avenues for administrative challenges to presidential elections (e.g., recounts) or judicial challenges in state or federal courts prior to the federal Safe Harbor deadline.

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, wrote in 2021:

“What if there was a problem with the election or vote counting in another state? The National Popular Vote has no way to resolve disputes or deal with even common challenges. … Under the National Popular Vote, controversies in one or more states could make it impossible to determine a winner.”[729] [Emphasis added]

Parnell’s written testimony to the Minnesota Senate Elections Committee on January 31, 2023, said:

“NPV provides no mechanism for resolving differences or disputes. … NPV’s failure to anticipate the conflict between the compact and RCV, and its additional failure to provide any guidance or process for resolving this and similar issues, makes it fatally flawed and dangerous to democracy.”[730] [Emphasis added]

Trent England, Executive Director of Save Our States, joined Parnell by saying:

“Even if state officials knew or suspected that a state’s reported vote total was incorrect, the compact offers no recourse.” [731] [Emphasis added]

The reason why the National Popular Vote Compact is silent as to how to adjudicate disputes is the same reason why almost all new federal or state laws (including virtually all other interstate compacts) are silent about adjudication—namely that the United States already has a fully operational judicial system throughout the country.

There is no need for each new federal or state law (including each new interstate compact) to repeat the existing book-length state and federal judicial codes that already provide detailed procedures for adjudicating disputes.[732]

These existing state and federal laws provide five ways to adjudicate election disputes.

Specifically, a state’s determination of its popular-vote count may be challenged under the National Popular Vote Compact in the same five ways that it can be challenged under the current system, namely:

• state administrative proceedings (e.g., recounts, audits),
• state lower-court proceedings,
• state supreme court proceedings,
• federal lower-court proceedings, and
• federal proceedings at the U.S. Supreme Court.

Indeed, aggrieved presidential candidates used all five ways in both 2000 and 2020.

For example, Florida’s winner-take-all law for awarding the state’s electoral votes contained no specific mechanism for resolving disputes.

Nonetheless, when a dispute arose in November 2000 involving Florida’s popular-vote count, it was adjudicated on a timely basis using pre-existing general procedures.

In fact, administrative and judicial proceedings in all five forums occurred during the brief period between Election Day (November 7, 2000) and the Safe Harbor Day (December 12).

The dispute was settled on December 11 by the U.S. Supreme Court—a week before the Electoral College met on December 18, 2000.[733]

In 2020, there were 64 lawsuits and numerous administrative proceedings involving the presidential election in eight states—Arizona, Georgia, Michigan, Minnesota, Nevada, New Mexico, Pennsylvania, and Wisconsin.[734], [735]

All of these administrative and judicial proceedings were conducted in accordance with the pre-existing general procedures that enable state and federal courts to adjudicate disputes.

All of the proceedings proceeded simultaneously and in parallel in each separate state between Election Day (November 3, 2020) and the Safe Harbor Day (December 8). The Electoral College then met on December 14.

Similarly, in 2016, lawsuits requesting recounts in three closely divided battleground states (Pennsylvania, Michigan, and Wisconsin) were similarly considered and decided in accordance with the pre-existing general procedures. As a result of these proceedings, a recount was conducted in Wisconsin. All of the proceedings occurred inside the period between Election Day (November 8, 2016) and the Safe Harbor Day (December 13). The Electoral College then met on December 19.

Today, disputes about popular-vote counts are litigated in the 36-day period between Election Day and the federally established Safe Harbor Day (six days before the Electoral College meeting) for a state arriving at its “final determination” of its popular-vote count and issuing its Certificate of Ascertainment (discussed in section 9.30.1).

Rapid resolution of disputes and finality is required from all states before the Electoral College meets, because the U.S. Constitution requires that all states cast their electoral votes on the same day. The Constitution provides:

“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[736] [Emphasis added] [Spelling as per original]

To guarantee the timely issuance and prompt transmission of each state’s Certificate of Ascertainment to the National Archives, the Electoral Count Reform Act of 2022 created a special three-judge federal court. This new court is open only to presidential candidates. It operates on a highly expedited basis, with expedited appeals. All issues must be resolved by the new court and the U.S. Supreme Court before the Electoral College meeting. Additional details about this new court are found in section 9.30.1.

Note that opponents of the National Popular Vote Compact frequently contradict themselves in their criticisms. For example, while falsely claiming that there is no way to adjudicate disputes under the Compact, Save Our States simultaneously asserts that litigation under it will overwhelm the courts (section 9.32.4). Which is it?

While falsely claiming that the Compact allows member state to judge and manipulate the election returns from other states (section 9.30.3), Save Our States simultaneously complains that member states are forced to accept the election returns from other states (section 9.30.4). Which is it?

The fact that opponents of the National Popular Vote Compact simultaneously raise contradictory criticisms suggests how much credence should be given to their criticisms.

Footnotes

In written testimony submitted to the Minnesota Senate Elections Committee on January 31, 2023, Sean Parnell, Senior Legislative Director of Save Our States, said:

“NPV provides no guidance on which vote totals to use in calculating the national vote total. The choice is left to the chief election official within each compact state. … In a close election, this could give a group of often obscure state officials the power to manipulate the national vote count based on which vote totals they use from other states. … This is too much power to vest in any official, and will lead to confusion, controversy, and chaos.”[737] [Emphasis added]

In a video produced by Save Our States, Parnell said:

“The chief election official in an NPV state [has] a pretty broad degree of latitude to, you know, essentially decide the election the way they want to, … deciding which votes to count, … and which they might reject, and which they might have to estimate. … And that’s a pretty scary scenario.”[738] [Emphasis added]

Trent England, the Executive Director of Save Our States, wrote the following in 2021:

“The NPV compact simply grants power to the top election official in each state to determine the national popular vote winner for that state. In other words, officials in various states would just decide, on their own and with no legal guidance, which numbers to use from Maine.”[739] [Emphasis added]

England told a meeting at the Heritage Foundation in 2021:

“You have independent individual elected officials within each of those states, who’s actually determining what the national popular vote result is. … Every state in the compact would have to collect all the vote totals from every other state to come up with its own total.”[740] [Emphasis added]

Contrary to what Save Our States says, the National Popular Vote Compact does not give administrative officials in the states belonging to the Compact any power to judge, modify, reject, estimate, or manipulate the election returns of other states.

Instead, the Compact explicitly states the opposite:

“The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress [i.e., the Safe Harbor Day].”[741] [Emphasis added]

In short, the chief election officials of the states belonging to the National Popular Vote Compact perform the purely ministerial function of using simple arithmetic to add up the official presidential-vote counts that have been finalized and certified by the state-of-origin.

The National Popular Vote Compact does not give administrative officials of states belonging to the Compact any power to judge, modify, reject, estimate, or manipulate any other state’s final determination of its vote count.

In this respect, the Compact parallels the Full Faith and Credit Clause of the U.S. Constitution.

Under our federal system, once any matter is litigated in the state-of-origin, the Full Faith and Credit Clause prevents another state’s officials (administrative or judicial) from second-guessing that decision. The Constitution states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”[742]

As previously discussed in section 9.30.2, there are five ways to litigate a state’s popular-vote counts at the administrative and judicial levels starting in the state-of-origin. All five ways are equally available under both the current system and the National Popular Vote Compact.

After this litigation, federal law requires that the state certify its final determination of its popular vote counts no later than six days before the Electoral College meeting (the Safe Harbor Day).

Thus, a questionable popular-vote count from a state will necessarily have been litigated in judicial and/or administrative proceedings in the state-of-origin before the officials of the states belonging to the National Popular Vote add up the vote counts from the states.

This principle of federalism was illustrated in 2020 when Texas Attorney General Ken Paxton requested that the U.S. Supreme Court allow the state of Texas to file a complaint against the state of Pennsylvania challenging Pennsylvania’s popular-vote count.[743]

The U.S. Constitution gives the Supreme Court exclusive jurisdiction over cases between states, and the Court usually hears such cases.

Nonetheless, on December 11, 2020, the U.S. Supreme Court refused Texas’ request to even present its bill of complaint, saying:

“The State of Texas’ motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”[744], [745] [Emphasis added]

As will be seen in the next section (section 9.30.4), Save Our States repeatedly contradicts itself in criticizing the Compact. While falsely claiming that the Compact allows its member states to judge, modify, reject, estimate, and manipulate the election returns of other states, Save Our States simultaneously complains that the Compact forces member states to accept the election returns of other states.

The fact that opponents of the National Popular Vote Compact simultaneously raise contradictory criticisms suggests how much credence should be given to them.

Footnotes

Recall that in the previous section (section 9.30.3), Sean Parnell and Trent England of Save Our States claimed that the National Popular Vote Compact is flawed, because it allows a state to judge, modify, reject, estimate, and manipulate another state’s election returns.

Nonetheless, Parnell and England simultaneously complain that the Compact is flawed because it does not allow a state to judge the election returns of other states.

Parnell wrote in 2020:

“The NPV compact also risks causing an electoral crisis due to its poor design. … States that join the compact are supposed to accept vote totals from every other state even if they are disputed, inaccurate, incomplete, or the result of fraud or vote suppression.”[746] [Emphasis added]

Trent England, Executive Director of Save Our States, testified before a Missouri Senate committee in 2016 saying:

“In a National Popular Vote world, the state of Missouri would, essentially, have to accept—without the ability to investigate or verify—the results of … the 49 [other] states and the District of Columbia.”[747] [Emphasis added]

Trent England and Sean Parnell wrote in 2021:

“The compact simply says that member states ‘shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate….’ In other words, even if state officials knew or suspected that a state’s reported vote total was incorrect, the compact offers no recourse.”[748] [Emphasis added]

Parnell and England are correct in saying that the National Popular Vote Compact requires its member states “to accept vote totals from every other state.”

However, they are wrong in suggesting that the National Popular Vote Compact somehow exempts questionable state vote counts from challenge, oversight, and review.

Election returns that are “inaccurate, incomplete, or the result of fraud or vote suppression” may be challenged under the National Popular Vote Compact in the same five ways that they can be under the current system, including:

• administrative proceedings (e.g., recounts, audits)
• lower state court proceedings,
• state supreme court proceedings,
• lower federal court proceedings, and
• U.S. Supreme Court proceedings.

The Compact and the current system are identical in that challenges must be conducted through the administrative and judicial system of the state-of-origin and/or in the federal court system starting in the state-of-origin.

Indeed, the state-of-origin is the appropriate place for such challenges (under both the Compact and the current system) because it is:

• where the questionable events occurred,
• where the records exist,
• where the witnesses (if any) are located, and
• where the administrative officials and judges are most knowledgeable about the applicable local laws and procedures.

Once a dispute has been litigated and decided in the state-of-origin, the National Popular Vote Compact treats the result as “conclusive.”

At that point, the administrative officials of the states belonging to the Compact perform the purely ministerial function of using ordinary arithmetic to add up the vote counts for each presidential candidate from each state.

Note that the National Popular Vote Compact parallels the treatment of disputes under the current system. Given that a state’s questionable popular-vote count will necessarily have been litigated in judicial and/or administrative proceedings inside the state-of-origin before it finalizes its vote count, the Full Faith and Credit Clause of the U.S. Constitution requires:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”[749]

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, testified before the Minnesota Senate Elections Committee on January 31, 2023, saying:

“States … are not necessarily going to produce an accurate vote total.”[750]

“California accidentally gave every Trump voter 2 votes in 2016 through a bad ballot design. Donald Trump under the counting mechanism of the compact would have won, because they gave him an extra 4.5 million votes. That seems kind of outrageous to me.”[751] [Emphasis added]

In his written testimony to the Michigan House Elections Committee on March 7, 2023, Parnell added:

“States can sometimes just do strange things that would pose a serious problem for the compact. Because of an odd ballot design in 2016, California wound up doubling the vote total for Donald Trump on its Certificate of Ascertainment, crediting him with an extra 4,483,810 votes.”[752] [Emphasis added]

Parnell made similar incorrect statements about California giving Trump an extra 4.5 million votes to the Alaska Senate State Affairs Committee on April 25, 2023,[753] and the Nevada Senate Legislative Operations and Elections Committee on May 2, 2023.[754]

Despite what Parnell says, California’s 2016 Certificate of Ascertainment did not give Trump an extra 4,483,810 votes—accidentally or otherwise.

If the National Popular Vote Compact had been in effect in 2016, the states belonging to the Compact would have uneventfully credited the Trump-Pence ticket with the correct total number of votes from California—4,483,810.

Here are the facts.

California’s 2016 Certificate of Ascertainment unambiguously states that the Clinton-Kaine ticket’s 8,753,788 vote total was “higher” than the vote total of any other ticket listed on the Certificate—including the 4,483,810 votes cast for the Trump-Pence ticket. The Certificate reads:

“I, Edmond G. Brown, Governor of the State of California, herby certify … the following persons received the highest number of votes for Electors of the President and Vice President of the United States for the State of California … California Democratic Party Electors Pledged to Hillary Clinton for President of the United States and Tim Kaine for Vice President of the United States … Number of Votes—8,753,788.”[755] [Emphasis added]

The only number appearing anywhere on California’s 2016 Certificate of Ascertainment in connection with the Trump-Pence ticket is 4,483,810.

If there were any truth to Parnell’s claim that California accidentally gave Trump an extra 4,483,810 votes, then Trump would have received more votes than Clinton’s 8,753,788. Therefore, California’s Certificate of Ascertainment would necessarily have:

(1) identified the Trump-Pence ticket as having “received the highest number of votes” and

(2) certified the appointment of 55 Trump-Pence presidential electors, instead of the 55 Democratic electors.

California’s Certificate of Ascertainment did not do either of these things, for the obvious reason that the state did not give Trump the undeserved 4,483,810 votes that Parnell says it did.

In making the false claim that California “accidentally” gave Trump an extra 4,483,810 votes, Parnell neglected to mention that a presidential-vice-presidential ticket can be nominated by more than one political party under California’s rarely used “fusion” procedure. In 2016, both the Republican Party and American Independent Party nominated the Trump-Pence ticket. The combinedsupport for the Trump-Pence ticket from Republican and American Independent voters was 4,483,810 voters.

After the National Popular Vote organization pointed out the egregious inaccuracy of Parnell’s testimony to Michigan and Minnesota state legislators, Parnell doubled down on his false claim. In his written testimony to the Alaska Senate State Affairs Committee on April 25, 2023, Parnell accused National Popular Vote of “errors” and “deception.”

“Lobbyists for National Popular Vote have attempted to dismiss as ‘myths’ these and other problems when they have been raised in other hearings, but their responses are riddled with errors, false statements, and outright deception. They have claimed, for example, that California’s 2016 Certificate of Ascertainment does not include an extra 4,483,810 votes for Trump, and the whole issue is a misunderstanding related to California’s use of fusion voting. But California does not have fusion voting.”[756] [Emphasis added]

However, despite Parnell’s assertion to the Alaska Committee on April 25, the fact is that California does have fusion voting (and, of course, California did not give Trump an undeserved extra 4,483,810 votes).

As Ballot Access News reported the facts of the situation in 2016:

“On August 13, the American Independent Party held its state convention in Sacramento, and nominated Donald Trump for President and Michael Pence for Vice-President. The California election code, section 13105(c),[757]permits two qualified parties to jointly nominate the same presidential and vice-presidential candidates. The November ballot will list Trump and Pence, followed by ‘Republican, American Independent.’ … This will be the first time since 1940 that two parties in California jointly nominated the same presidential candidate.”[758], [759][Emphasis added]

In short, California does have fusion voting for President and used it in 1940 and 2016.

As a thought experiment, consider what would happen if a Certificate of Ascertainment erroneously credited a presidential slate with 4,483,810 votes that it never received. If this issue were to arise today, the aggrieved candidate would likely seek correction from the special three-judge federal court created by the Electoral Count Reform Act of 2022, because that court has the specific power to revise a Certificate under its section 5(c)(1)(B).

Note that opponents of the National Popular Vote Compact repeatedly cast doubt on the accuracy, and even the existence, of official state-certified popular-vote counts.[760]

Meanwhile, they simultaneously extol the solidity of the very same official state-certified vote counts when they are used to decide the presidency under the current system—such as the 537-vote difference in Florida that made George W. Bush President in 2000, or the margins in 2016 of 10,704 in Michigan, 22,748 in Wisconsin, or 44,292 in Pennsylvania that made Donald Trump President.[761]

If there were any truth to Parnell’s claim that “States … are not necessarily going to produce an accurate vote total,”[762] then the question would arise as to why anyone should accept the state-produced vote counts that are used today to award electoral votes under the current state-by-state winner-take-all method of awarding electoral votes.

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, told the Michigan House Elections Committee on March 7, 2023:

“New York cannot accurately count its votes to save its life.”[763]

Parnell told the Minnesota Senate Elections Committee on January 31, 2023:

“You also have the problem that other states, New York in particular, are not necessarily going to produce an accurate vote total. … There are about 425,000 votes that New York was missing off of its 2012 Certificate of Ascertainment.”[764] [Emphasis added]

He repeated this claim in testimony to the Alaska Senate State Affairs Committee on April 25, 2023[765] and the Nevada Senate Legislative Operations and Elections Committee on May 2, 2023.[766]

Despite the claims that New York regularly produces inaccurate vote counts, the actual incidents cited by Parnell involved harmless slight delays in finalizing vote counts (notably after Hurricane Sandy in 2012) that were unanimously authorized by the bipartisan New York State Board of Elections.

In 2012, Hurricane Sandy resulted in the temporary relocation of hundreds of thousands of New Yorkers just before Election Day in 2012.

Governor Andrew Cuomo issued Executive Order No. 62, allowing any registered New York voter in the federally declared disaster areas to cast a provisional ballot at any polling place in the state. The affected areas consisted of the five counties of New York City (Bronx, Kings, New York, Queens, and Richmond) and the four suburban counties of Nassau, Rockland, Suffolk, and Westchester.

The result was 400,629 provisional ballots in New York’s 2012 election—about four times the number handled in 2008.

Counting provisional ballots is a time-consuming and labor-intensive task under normal circumstances (section 9.30.15). Counting the provisional ballots resulting from Hurricane Sandy was unusually time-consuming, because a provisional ballot given to a voter outside his or her normal precinct would almost inevitably contain some local offices for which the voter was not entitled to vote.

The detailed instructions accompanying the Executive Order illustrate the complexity of the situation:

“For example, a voter staying with family in Orange County who was displaced from Westchester, would be entitled to vote for statewide contests and Supreme Court (because those 2 counties share a judicial district) and possibly a congressional, state senate, or state assembly contest. A voter who sought refuge further upstate might only be eligible to vote in the statewide contests, as they would share no other offices/contests.”

The Executive Order required every county in the state to transmit the resulting provisional ballots to the Board of Election in the county where the voter was registered.

When the provisional ballots arrived at each voter’s home county, the Board there had to determine, on a laborious case-by-case basis, whether that particular voter was entitled to vote for each separate contest that appeared on the sending precinct’s provisional ballot. A voter who was temporarily displaced to an adjacent county might, for example, still be in his or her own congressional district, but not his own state senate district. Thus, the voter’s vote for Congress would be counted, but their vote for State Senator would not.

Thus, each vote cast on each provisional ballot had to be laboriously analyzed to determine whether that particular out-of-precinct voter was entitled to vote for each office.

After Election Day, it was apparent to everyone that the result of processing the 400,629 provisional ballots could not possibly reverse Obama’s statewide win of almost two million votes.

Under the state’s existing winner-take-all law, Obama would have been entitled to all of New York’s electoral votes—even if he had received none of the 400,629 provisional votes.

In this “no harm, no foul” situation, the bipartisan New York State Board of Elections unanimously decided against diverting personnel from hurricane relief to the task of finishing the count of these provisional ballots prior to the Electoral College meeting.

Specifically, the Board unanimously certified a statewide count for President before the Safe Harbor Day without including the provisional ballots. The state’s first certified count on December 10, 2012, reported that Obama had received 4,159,441 votes and that Romney had received 2,401,799 votes—a statewide margin of 1,757,642 votes in favor of Obama.

Then, on December 31, 2012, the Board of Elections certified an amended statewide count showing that Obama had received 4,471,871 votes and that Romney had received 2,485,432 votes—a margin of 1,986,439 votes in favor of Obama. In the final count, Obama won 57% of the 400,629 provisional ballots—that is, an additional 228,797 votes.

Manifestly, New York was not a closely divided battleground state in 2012. However, if New York had been in the position of determining the national outcome of the presidential election (as Florida was in 2000, and as Ohio was in 2004), all of these provisional ballots would have been counted expeditiously—regardless of the cost of the overtime or inconvenience.

Because every voter in New York was entitled to vote for President, the obvious course of action would have been to count just each provisional voter’s choice for President (and later go back to analyze the eligibility of each vote for lower offices). Thus, if it had been necessary, the presidential count could have been done quickly if New York had been in the position of determining the national outcome of the presidential election.

Douglas Kellner, Co-Chair of the New York State Board of Elections, has stated that if these provisional ballots had had any chance of affecting the presidential election, the Board would have deployed whatever personnel would have been needed to process all of the provisional ballots for President prior to the Electoral College meeting.

If any presidential candidate had felt that New York’s delay in counting provisional ballots adversely affected his interests, he could have sought (and undoubtedly would immediately have received) a court order compelling completion of the counting prior to the Electoral College meeting. Of course, if either Romney or Obama had felt that this delay adversely affected their interests, the bipartisan Board would never have voted unanimously to authorize the delay in the first place.

In short, the Board’s “no harm, no foul” decision in 2012 was based on common sense.

• No presidential candidate or political party was adversely affected.
• The allocation of electoral votes was not affected.
• The outcome of the election was not affected.
• Every voter ultimately had his or her vote accurately counted and included in the final total.

In 2016 and 2020, New York again did not complete its final count of some provisional ballots until after the Electoral College met (albeit a much smaller number than resulted from Hurricane Sandy). In each of these cases, the bipartisan New York State Board of Elections acted with unanimous consent.

Parnell falsely asserted that previous “no harm, no foul” counting delays under the current system “would be used” in a future election in which a timely and complete popular-vote count would actually matter. Specifically, he told the Minnesota Senate Elections Committee on January 31, 2023:

“You also have the problem that other states, New York in particular, are not necessarily going to produce an accurate vote total. In the last four presidential elections, New York has provided vote totals, that would be used under the compact,that have been missing tens or even hundreds of thousands of votes.”[767] [Emphasis added]

If anyone is concerned that popular-vote counts might be unavailable because of hurricanes, this problem is infinitely more pressing under the current state-by-state winner-take-all method of awarding electoral votes than it would ever be in an election with a single national pool of 158,224,999 votes.

Hurricanes are not frequent in New York (which has not been a closely divided battleground state for decades).

Hurricanes are far more frequent in Florida (which Bush carried by 537 votes in 2000), Georgia (which Biden carried by 11,779 votes in 2000), and North Carolina (which Obama carried by 14,177 votes in 2008).

In any case, New York’s previous history is academic. The Electoral Count Reform Act of 2022 tightened the deadline for states to complete their vote-counting and created a special three-judge federal court to guarantee rapid enforcement of both the requirement for timely “issuance” and prompt “transmission” of each state’s Certificate of Ascertainment (section 9.30.1).

New York’s previous delays in counting provisional ballots should serve as a reminder as to why a national popular vote for President is needed. Under the state-by-state winner-take-all system, the votes cast by the 400,629 provisional voters in New York were politically irrelevant, because they could not possibly have affected the awarding of New York’s electoral votes—with or without a hurricane. In contrast, under a national popular vote, every voter in every state would be politically relevant in every presidential election.

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, said the following in written testimony to the North Dakota Government and Veterans Affairs Committee on March 18, 2021:

“The language of the compact requires member states to ‘determine the number of votes’ in each state, which may leave the door open for them to concoct estimated vote totals to use. … This means that some compact member states might use estimated vote totals for North Dakota.”[768] [Emphasis added]

Parnell similarly claimed, in written testimony to the Michigan House Elections Committee on March 7, 2023:

“If for some reason there is not an ‘official statement’ available to obtain vote totals by the time the compact needs them—for example, if there is a recount still underwayor court challenges to results, or if a state is simply refusing to cooperate with the compact, then the chief election official in NPV member states has the power to estimate vote totals for that state using any methodology they think appropriate.”[769] [Emphasis added]

There is nothing in the National Popular Vote Compact that gives officials in states belonging to the Compact (or anyone else) the authority to estimate vote counts.

Instead, the Compact explicitly requires precisely the opposite:

“The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate….”[770] [Emphasis added]

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, told the Michigan House Elections Committee on March 7, 2023:

“It simply will not be possible to conclusively determine which candidate has received the most votes because every state runs its own election and will continue to do so under the Compact. They run their own election according to their own codes, standards, policies, practices, and procedures. And those don’t always line up well with what the Compact requires.”[771] [Emphasis added]

In written testimony to the Maine Veterans and Legal Affairs Committee on January 8, 2024, Parnell said:

“The fact that votes in every state are cast, counted, recounted, and reported in different ways, some of which cause serious problems for National Popular Vote.”[772] [Emphasis added]

Although there are differences in election procedures among the states, the end result of each state’s vote-counting process is the same—that is, the number of popular votes cast for each presidential-vice-presidential slate.

The Electoral Count Act of 1887 and the Electoral Count Reform Act of 2022 both require that each state include those numbers (the “canvass”) in its Certificate of Ascertainment.

The only thing that the National Popular Vote Compact requires in order to operate are the popular-vote counts that every state already routinely produces.

Moreover, contrary to what Parnell says, the Compact imposes no procedural requirements on the “codes, standards, policies, practices, and procedures” of non-member states. Therefore, there is nothing any state needs to do in order to “line up well with what the Compact requires.”

Finally, there is nothing novel about the way the National Popular Vote Compact arrives at the national popular vote total.

The Compact would operate in the same way as the proposed constitutional amendment that the U.S. House of Representatives passed by a bipartisan 338–70 vote in 1969.[773] Both the Compact and the amendment are based on ordinary arithmetic applied to the officially certified vote counts that existing federal law requires every state to provide and that every state already routinely produces.

Since 1969, there have been dozens of other proposed constitutional amendments introduced in Congress for a national popular vote for President (section 4.7). An examination of these proposals shows that they, too, operate in the same way as the National Popular Vote Compact, namely that they simply call for adding up the officially certified popular-vote counts that every state already produces.[774]

Footnotes

A long-time opponent of the National Popular Vote Compact claimed on the Election Law Blog in 2023 that a presidential candidate simultaneously running with different running mates would create problems for the Compact.

“If disputes arise over … which slates qualify (e.g., whether the “Stein-Hawkins” ticket in Minnesota in 2016 should be tabulated with “Stein-Baraka” tickets in the rest of the United States), … the Supreme Court would step in to resolve disputes. … Maybe that’s what we want in exchange for a national popular vote.”[775] [Emphasis added]

There have been occasional cases when minor-party presidential candidates have engaged in the self-destructive tactic of simultaneously running with different vice-presidential running mates—sometimes even in the same state.

For example, Green Party presidential candidate Jill Stein ran with Howie Hawkins as her vice-presidential running mate in Minnesota in 2016, while simultaneously running with Ajamu Baraka as her running mate in other states.

Both the Compact and the current system operate in the same way in dealing with this rare and self-destructive tactic. Specifically, votes are cast and counted for presidential-vice-presidential slates—not individual candidates for President and individual candidates for Vice President—under both the Compact and the current system.

If Stein had carried Minnesota, her 10 presidential electors would have cast 10 electoral votes for her for President and 10 electoral votes for Howie Hawkins for Vice President.

If Stein had carried any other state(s), the Stein presidential electors would have cast their electoral votes for Ajamu Baraka for Vice President.

In the unlikely event that Stein had received between 270 and 279 electoral votes for President in the Electoral College, she would have been elected President. However, Ajamu Baraka would have received 10 fewer electoral votes for Vice President—not enough to be elected.

Ralph Nader’s 2004 presidential campaign in New York was even more bizarre and self-destructive.

New York allows “fusion voting” that permits a candidate to appear on the ballot as the nominee of more than one political party (section 3.12).

For example, in 2004 the Bush-Cheney slate appeared on the ballot in New York as nominees of both the Republican Party and the Conservative Party. Similarly, the Kerry-Edwards slate appeared on the ballot as nominees of both the Democratic Party and the Working Families Party.

In 2004, Nader was on the ballot simultaneously in New York with two different vice-presidential running mates. Specifically, Nader ran with Jan Pierce as his vice-presidential running mate on the Independence Party line, and he simultaneously ran with Peter Miguel Camejo on the Peace and Justice Party line.

Article V of the Compact defines the term “presidential slate” as follows:

“‘Presidential slate’ shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States …” [Emphasis added]

Clauses 1 and 2 of Article III of the Compact provide:

“The chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.

“The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the ‘national popular vote winner.’” [Emphasis added]

The current system operates in the same way as the Compact in that votes are cast and counted for presidential-vice-presidential slates.

The result was that when Ralph Nader appeared on the ballot in New York in 2004 as the presidential nominee of two different political parties—with two different vice-presidential running mates—New York’s Certificate of Ascertainment (figure 3.8) separately recorded the vote counts for the two distinct presidential-vice-presidential slates.

In the unlikely event that the combined vote for the two presidential slates headed by Nader had received more popular votes in New York than any other slate in 2004, Nader would almost certainly not have won New York’s electoral votes. Nader would only have won the state’s electoral votes if one of the two dueling Nader slates had received more popular votes in New York than the other Nader slate.

Of course, no presidential candidate who is seriously seeking the presidency would run simultaneously with different running mates in the same state or in different states—thereby dividing his or her support across two different slates and effectively eliminating any chance of victory.

Finally, note that the blogger is incorrect in claiming that direct involvement of the U.S. Supreme Court in presidential elections is the price to pay “in exchange for a national popular vote.”

There would have been no need for any court—much less the U.S. Supreme Court—to “step in” to deal with the question of how to handle the votes cast for Stein in Minnesota in 2016 or Nader in New York in 2004. There is simply no ambiguity as to how these votes would be handled under either the Compact or the current system.

In any case, the Supreme Court inserted itself directly into the process of deciding presidential elections in 2000—long before the National Popular Vote Compact came onto the scene. Court involvement is not a price to be paid “in exchange for a national popular vote.”

Footnotes

Trent England, Executive Director of Save Our States, told a meeting at the Heritage Foundation on May 19, 2021, that under the National Popular Vote Compact:

“You have independent individual elected officials within each of those states, who’s actually determining what the national popular vote result is. … Every state in the compact would have to collect all the vote totals from every other state to come up with its own total. … You might have a Secretary of State of California say, well, we think that states that are requiring voter ID are engaged in vote suppression. So, you know what? We’re not going to consider the votes from Texas part of the national popular vote. … Or states using a certain kind of voting machine, or whatever they could come up with.”[776] [Emphasis added]

The method of calculating the “national popular vote total” under the National Popular Vote Compact is a matter of law—not by the personal preferences of the election administrators of the Compact’s member states.

Article III, clause 1 of the Compact states:

“The chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a ‘national popular vote total’ for each presidential slate.” [Emphasis added]

Despite what England says, there is nothing in the Compact that authorizes any administrative official of any state belonging to the Compact to refuse to count votes from some other state that has some policy that the official personally dislikes.

In fact, as previously discussed in section 9.30.3, the administrative officials of states belonging to the Compact are required to treat the certified vote counts from other states as “conclusive.”

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, told the Michigan House Elections Committee on March 7, 2023:

“A couple of years ago there was a bill in Arizona proposing that … [some of Arizona’s] electoral votes would be chosen by the legislature. I don’t really have an opinion one way or the other on whether this is a good idea or not. But it’s an interesting idea that’s out there. If Arizona were to do that, National Popular Vote would look at that and say, ‘there is no statewide popular election for electors.’ … That seems like it’s going to be a problem.”[777] [Emphasis added]

The 2021 Arizona state legislative bill to which Parnell is referring (HB2426) was one of many bizarre proposals that were introduced in the Arizona legislature after outgoing President Donald Trump failed to overturn the results of the 2020 presidential election in Arizona.

This bill specified that two of the state’s electoral votes were to be cast for the presidential-vice-presidential ticket that:

“Received the highest number of votes from the aggregate vote of all the members of the legislature voting as a single body.”[778]

The state’s remaining electoral votes would be allocated according to the popular vote in each congressional district. This bill died in committee and has not been re-introduced since.

In addition, in 2024 Arizona Senator Anthony Kern proposed that the Arizona legislature appoint all of the state’s presidential electors:

“A GOP state lawmaker who participated in the 2020 alternate elector strategy has introduced bill that aims to give state legislature sole authority to appoint presidential electors.”[779] [Emphasis added]

Senator Kern’s Senate Concurrent Resolution 1014 (SCR 1014) provided:

“The Legislature, and no other official, shall appoint presidential electors in accordance with the United States Constitution.”[780], [781]

It is unequivocally true that the Compact would not accommodate the Arizona legislature if it were to decide, at some future time, to designate itself as the authority to choose some or all of the state’s presidential electors.

While Parnell says he does not have “an opinion one way or the other on whether this is a good idea,” we do.

The National Popular Vote Compact is squarely based on the principle that the voters—not state legislatures—should choose the President.

Every state today has a law providing that all of a state’s presidential electors will be chosen by the voters—not the state legislature. This has been the case in every state starting with the 1880 presidential election.

We regard the enshrinement in the National Popular Vote Compact of the principle that the people should choose as a feature—not a bug.

When a state adopts the National Popular Vote Compact, it obligates itself to continue to conduct a “statewide popular election” for President. Article II of the Compact states:

“Each member state shall conduct a statewide popular election for President and Vice President of the United States.”

Moreover, clause 8 of Article V of the Compact defines a “statewide popular election” as follows:

“‘Statewide popular election’ shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.”

If either HB2426 or SCR 1014 were to go into effect in Arizona, that state would no longer be conducting a “statewide popular election” for President and would, therefore, be voluntarily opting out of the Compact’s national popular vote count.

As discussed in detail in section 9.31.6, if a state legislature were to choose to opt-out of the national popular vote count, that state’s departure would present no operational difficulty in terms of the Compact’s ability to compute the national popular vote total from the states that did conduct a “statewide popular election.”

Opting out of the national popular vote count would be a very poor policy decision for a state and its voters.

Such legislation would, of course, be vigorously opposed by the political party that normally wins the state involved.

Moreover, a lot of voters would be angry with a state legislature that had disenfranchised them.

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, told the Michigan House Elections Committee on March 7, 2023:

“Historians still argue whether Richard Nixon or John Kennedy won the popular vote in 1960, owing largely to uncertainty over how to count votes from Alabama that year. It’s an interesting bit of historical trivia because of course Kennedy won the Electoral College regardless of the Alabama issues, but under National Popular Vote, not being able to conclusively determine a winner would be a national crisis.”[782] [Emphasis added]

The reason it is arguable whether Kennedy or Nixon would have won the national popular vote in 1960 is that neither Kennedy’s nor Nixon’s name appeared on the ballot in Alabama in 1960. Figure 3.10a and figure 3.10b in section 3.13 show Alabama’s 1960 ballot for President.

Hence there were no popular votes to count from Alabama for Kennedy or Nixon.

The cumbersome voting system that Alabama used in 1960 has not been used by Alabama or any other state for decades.

In the unlikely event that a state were to adopt Alabama’s long-abandoned method of voting today, the National Popular Vote Compact would encounter no operational difficulties.

In the early days of the Republic, voters were required to vote for individual candidates for presidential elector rather than the actual candidates for President and Vice President. Thus, a voter in a state with, say, 11 electoral votes (the number that Alabama had in 1960) would have to vote for 11 separate candidates for presidential elector.

By 1960, three-quarters of the states had abandoned this cumbersome and inconvenient way of voting and adopted the so-called “short presidential ballot” (section 2.14). Since 1980, every state has used it.

The short presidential ballot lists the names of the actual candidates for President and Vice President and enables voters to cast a single vote for their chosen presidential-vice-presidential ticket. A vote for a presidential-vice-presidential ticket is then “deemed” to be a vote for all of the individual candidates for presidential electors nominated in association with that ticket in the voter’s state.

Back in 1960 in Alabama, each of the Democratic Party’s 11 candidates for presidential elector was nominated separately at the time of the primary election.

Segregationists saw Alabama’s method of voting as a way to nominate and elect Democratic presidential electors who would not support the Democratic Party’s national nominee (that is, John F. Kennedy) in the Electoral College.

The segregationists were partially successful in Alabama’s 1960 Democratic primary. They nominated six of Alabama’s 11 Democratic candidates for the position of presidential elector.

A majority of Alabama’s voters were in the habit of supporting the state’s dominant political party (that is, the Democratic Party) in November general elections at the time.

Thus, the voters elected all 11 Democratic presidential electors in the November general election. Each of the 11 winning elector candidates received a slightly different number of popular votes (with each of them receiving about 58% of the statewide vote).

Meanwhile, no Republican presidential electors were chosen in November (with each of them receiving about 42% of the statewide vote).

When the Electoral College met in mid-December, the six segregationist Democratic presidential electors voted for Senator Harry Byrd of Virginia, and the five “loyalist” Democratic electors voted for the person nominated by the Democratic National Convention (that is, Senator John F. Kennedy of Massachusetts).

Today, no state uses the method of voting used in Alabama in 1960. All states use the short presidential ballot. All states today conduct a “statewide popular vote” for President, as that term is defined in the National Popular Vote Compact.

If, after the National Popular Vote Compact comes into effect, any state were to decide to revert to Alabama’s abandoned method of voting, that state would no longer be conducting a “statewide popular vote” for President (section 9.31.6). That state would, therefore, be voluntarily opting out of the Compact’s national popular vote count (because there obviously would be no vote count for any presidential and vice-presidential candidate from that state).

Reverting to Alabama’s 1960 method of voting would be a very poor policy decision for a state and its voters. However, it would present no operational difficulty in terms of the Compact’s ability to compute the national popular vote total from the states that did conduct a “statewide popular election.”

There would be no “national crisis”—simply a lot of voters angry with a state legislature that disenfranchised them.

There is a continuing academic argument about whether the 1960 election was a wrong-winner election.

The 1960 presidential election in Alabama has fueled an academic discussion about whether that election was an instance of a President (Kennedy, in this case) winning a majority of the Electoral College without having received the most popular votes nationwide.[783]

In the absence of any actual popular vote count for Kennedy or Nixon from Alabama in 1960, the answer is unknowable.

Nonetheless, various political writers have bandied about various ways of estimating how many popular votes Kennedy and Nixon might have received if Alabama voters had been allowed to vote directly for Kennedy or Nixon on a head-to-head basis.

Some have suggested, for example, that Republican Richard Nixon should be credited with six-elevenths of the state’s popular vote, because segregationist Democratic Senator Byrd of Viginia received six of Alabama’s 11 presidential votes in the Electoral College. That is, these writers advocate equating statewide voter sentiment in the November general election to the ratio of segregationists to loyalists who won the Democratic primary held earlier in the year.

This method of accounting would credit Nixon with the support of six-elevenths of Alabama voters (that is, 55%) in the November general election—even though the Republican candidates for presidential elector received only about 42% of the state’s popular vote in November.

This method of accounting of Alabama’s popular vote gives Nixon enough additional popular votes nationally to erase Kennedy’s modest national-popular-vote margin.

There are obvious problems with this method of accounting. At the time of the November general election, public awareness of the radically different intentions of the 11 Democratic nominees for presidential elector was low, as evidenced by the fact that all 11 received almost the same percentage of the statewide vote (58%). That is, the voters showed no particular preference for the six segregationist Democrats, compared to five loyalist Democrats. They simply voted Democratic. The statewide Democratic popular-vote margin of 58% would have been more or less the same if, say, six, seven, or eight of the 11 Democratic nominees for presidential elector had intended to support Kennedy in the Electoral College or, conversely, if only four, three, or two of them had intended to support him.

Moreover, neither Kennedy nor Nixon were segregationists. In fact, both ran on a pro-civil-rights platform in 1960.

Finally, it is noteworthy that Nixon never publicly supported this method of post-election accounting or claimed to have won the national popular vote in 1960.[784]

See the discussion about the short presidential ballot in section 9.31.6.

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, stated at a debate conducted by the Broad and Liberty group in Philadelphia:

“A state that doesn’t conform their election process to the way National Popular Vote requires, they’re effectively locked out.”[785]

No state would have to make any change in its existing laws or take any action it would not otherwise take, in order to have its voters automatically included in the national popular vote count compiled under the Compact.

Footnotes

Trent England, Executive Director of Save Our States, told a debate audience at American University in 2015:

“I do know that in some states, if the number of provisionals outstanding is less than the margin, when they finish counting the regular votes, they will not count the provisionals if they can’t be decisive.”[786]

A blog posting on Real Clear Politics by “Southerner01” in 2012 stated:

“One thing worth noting is that the true [national] popular vote is rarely even tallied. For example, I remember hearing several times that California did not count absentee ballots because the number of absentee ballots was significantly less than the amount by which the Democratic candidate was leading. Since absentee ballots typically include military votes, the gap might have narrowed, even if wasn’t even mathematically possible for the ballots to flip the state. In that case, it’s possible that, as an example, Al Gore may not have won the actual [national] popular vote. I believe there were roughly million absentee ballots not counted in California, and Gore was leading by about 500,000 votes [nationally]. While that was nowhere near enough to flip the state, it might have changed the [national] popular vote total.”[787] [Emphasis added]

Regardless of what Trent England “knows” or what the blogger “remembers hearing,” all valid ballots are counted in every state regardless of whether there is any suspense about which presidential candidate is destined to win the state’s electoral votes.

Indeed, there has been no suspense about which presidential candidate would win the most popular votes in about three-quarters or more of the states in recent years.

Aside from the legal requirements to count all votes, this urban legend ignores the fact that the presidential race is not the only thing on a state’s ballot.

For example, a November general-election ballot in California in a typical presidential-election year contains races for:

• members of Congress
• members of the state legislature
• state, county, and local ballot propositions
• county and municipal offices
• various local school, college, hospital, and other boards
• state and county judges.

There were 10,965,856 votes cast in California in the November 2000 election. Although the uncounted “million” ballots that the blogger heard about could not have reversed Al Gore’s 1,293,774-vote lead over George W. Bush in California, these ballots determined the outcome of numerous other races.

Footnotes

The federal Help America Vote Act of 2002 (HAVA) permits a voter to cast a provisional ballot (sometimes also called an “affidavit ballot”) under circumstances such as the following:

• The voter is not listed on the election roll for a particular precinct (perhaps because the voter recently moved).
• The voter arrives at the polling place on Election Day but previously requested an absentee ballot (perhaps because the voter did not receive the absentee ballot or did not use it).
• The voter does not have the type of identification (if any) that may be required by state law.

After the voter fills out a provisional ballot, it is typically inserted into a large envelope whose exterior contains an explanation as to why the ballot was cast on a provisional basis. The outside of the envelope contains the voter’s signature and may also contain additional identifying information (e.g., a driver’s license number).

Depending on state law, provisional ballots are counted two to 21 days after the election. Most states complete the process within 10 days after the election.[788]

Processing provisional ballots is a tedious administrative process. The Miami Herald reported that each provisional ballot takes about 30 minutes to review and inspect.[789] The first step is usually to visually compare the signature on the outside of the envelope with registration records before the provisional ballot is accepted. If a driver’s license number is used as part of the identification process, the number provided by the voter on the outside of the envelope may be compared with the state’s database of driver’s licenses. The specific additional processing required depends on the reason why the provisional ballot was cast in the first place.

According to the federal Election Assistance Commission:

“The percentage of ballots that were cast by provisional voters has been steadily declining over the past three election cycles; 2018 EAVS data show that 1.3% of voters who cast a ballot did so by provisional ballot, and that percentage declined to 0.8% of the electorate in the 2020 EAVS and 0.5% for the 2022 EAVS.

“The total number of provisional ballots cast has declined correspondingly, from 1,852,476 in the 2018 EAVS to 1,712,857 in the 2020 EAVS to 702,042 in the 2022 EAVS.”[790] [Emphasis added]

In the November 2022 general election, 0.5% of the ballots were cast by provisional voters, and 78.6% of these provisional ballots cast were accepted and counted (either fully or partially).[791] Thus, the net effect is that about 0.4% of the total vote in the November 2022 general election came from provisional ballots.

Hans von Spakovsky of the Heritage Foundation has stated that a national popular vote for President:

“would … lead to … contentious fights over provisional ballots.”[792]

He has also stated:

“Every additional vote found anywhere in the country could make the difference to the losing candidate.”[793]

We agree with von Spakovsky that any vote “anywhere in the country could make the difference” in a national popular vote for President. Indeed, an important reason to adopt the National Popular Vote Compact is to make every vote in every state politically relevant in every presidential election. We do not view the fact that every vote “could make the difference” as something to be avoided.

Von Spakovsky continued:

“If the total number of provisional ballots issued in all of the states is greater than the margin of victory, a national battle over provisional ballots could ensue.

“Losing candidates would then have the incentive to hire lawyers to monitor (and litigate) the decision process of local election officials.”

“Lawyers contesting the legitimacy of the decisions made by local election officials on provisional ballots nationwide could significantly delay the outcome of a national election.”[794] [Emphasis added]

Our view is that ballots cast by legitimate voters should be counted. We also believe that a candidate who is slightly behind in a close election has every right to “monitor” the handling of provisional ballots and, if necessary, “litigate” the question of whether a particular voter is legally entitled to have his or her vote counted.

In any event, provisional ballots are far more likely to be outcome-determinative under the current state-by-state winner-take-all system than under a national popular vote.

Under the current system, the outcome of the national election regularly ends up depending on the outcome of one, two, or three closely divided battleground states. The number of provisional ballots in a closely divided state is frequently larger than the margin of victory generated by the non-provisional ballots in that state.

For example, table 9.41 shows the four states in 2020 where Biden’s percentage lead was less than 0.8% (the percentage of provisional ballots cast that year).

Table 9.41 The four states in 2020 where Biden’s percentage lead was less than 0.8%

Of course, the test for whether provisional ballots are outcome-determinative is not whether the winner’s percentage lead was less than the percentage of provisional ballots cast.

For one thing, only about 79% of provisional ballots are accepted.

More importantly, provisional ballots are not unanimous in favor of one candidate. Instead, the leading candidate’s percentage of provisional ballots is usually fairly close to that candidate’s lead among non-provisional ballots.

Let’s do the arithmetic:

• Assume 0.8% of the ballots were provisional (that is, the actual percentage in 2020);
• Assume 79% of the provisional ballots were accepted; and
• assume the provisional ballots divided 55%–45% in favor of one candidate.

In that case, the entire pool of provisional ballots would have contributed only 0.064% to the leading candidate’s margin.

A change of 0.064% is equal to only about half of Biden’s 50.12% lead in Georgia, only about a third of Biden’s 50.16% lead in Arizona, only a fifth of Biden’s 50.32% lead in Wisconsin, and only about a tenth of Biden’s 50.59% lead in Pennsylvania.

Thus, the total pool of provisional ballots would not have been outcome-determinative in any of the four closest states in 2020.

Similarly, a difference of 0.064% is even less likely to be outcome-determinative in a nationwide election. For example, in the closest national election in the 20^th or 21^st centuries (that is, the 1960 election), the national-popular-vote margin was 0.17%—three times larger than 0.064%.

Moreover, von Spakovsky’s assertion about a nationwide flurry of litigation over provisional ballots is unrealistic.

Provisional ballots do not offer a disgruntled and litigious candidate much promise. Provisional ballots have been in widespread use since the 2004 presidential election. Almost all of the situations that give rise to provisional ballots have been previously encountered, analyzed, adjudicated, and cataloged—thereby establishing precedents on how the vast majority of situations are to be handled. It would be remarkable if some new legal theory could affect more than a tiny fraction of the provisional ballots.

Even if the number of disputed provisional ballots were potentially outcome-determinative, all litigation involving presidential elections must be conducted and decided so as to reach a conclusion inside the overall national schedule for finalizing the results of presidential elections established by the U.S. Constitution and the Electoral Count Reform Act of 2022. This schedule applies equally to elections conducted under the current state-by-state winner-take-all system as well as those conducted under the National Popular Vote Compact.

Footnotes

Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, told a Delaware Senate committee that the Compact would create:

“Logistical nightmares [that] could haunt the country.”

“There are … inconsistencies among states’ ballots that would skew the election results. … States differ in their requirements for ballot qualification.”[795]

Candidates with significant national support generally get on the ballot in all (or almost all) states.

Presidential candidates who have significant national support generally qualify for the ballot in all 50 states (or all but a few states).

• Most recently, the Libertarian Party received the most votes nationwide of any minor-party. It was on the ballot for President in all 50 states in 2020 (when Jo Jorgensen received about 1% of the national popular vote). In 2016 (when Gary Johnson received about 3% of the national popular vote), the Libertarian Party was also on the ballot for President in all 50 states.
• Ross Perot was on the ballot in all 50 states in both 1992 (when he received 19% of the national popular vote) and 1996 (when he received 8%).
• George Wallace was on the ballot in all 50 states in 1968 (when he received 13% of the national popular vote).
• John Anderson was on the ballot in all 50 states (when he received 7% of the national popular vote in 1980).
• Lenora Fulani, the nominee of the New Alliance Party, was on the ballot in all 50 states in 1988.
• Robert LaFollette got onto state-printed ballots in all but two states in 1924 (Louisiana and North Carolina).
• In 1912, when then-former President Theodore Roosevelt ran as a third-party candidate and received 27% of the national popular vote, he was on state-printed ballots in all but two states (Oklahoma and North Carolina).
• Henry Wallace was on the ballot in all but three states in 1948.[796]
• Ralph Nader was on the ballot in 45 states in 2008 (when he received ½% of the national popular vote).
• Ralph Nader was on the ballot in 43 states in 2000 (when he received 2% of the national popular vote).

In 2020, there were 34 officially registered minor party or independent candidates for President. Only the Libertarian party’s nominee (who received 1.2% of the national popular vote) was on the ballot in all 50 states. The combined total for the other 33 minor-party or independent candidates was 0.6%.

Requirements to get onto the ballot in 2024

Thanks to persistent litigation and lobbying by voting-rights advocates, minor parties, and independent candidates, the process of getting onto the ballot has become considerably easier in recent years.

Minor parties in some states automatically qualify to be on the ballot by virtue of having received a statutorily specified number of votes in a previous election.

State statutory requirements for ballot-access petitions are couched in various ways, including a fixed number of signatures, a certain percentage of the vote for a particular office in a specified previous election, and a certain percentage of the state’s registered voters.

Richard Winger, Editor of Ballot Access News, has analyzed each state’s requirements and restated them in terms of a percentage of the state’s previous presidential vote.[797] A presidential candidate can get onto the ballot in the November 2024 presidential election by:

• filing a simple statement in one state;
• paying a filing fee in three states;
• submitting a petition with between 0.1% and 0.5% of the state’s 2020 presidential vote in 34 states;
• submitting a petition with between 0.5% and 1.0% of the state’s 2020 presidential vote in eight states; and
• submitting a petition with between 1% and 1.5% of the state’s 2020 presidential vote in four states.

Candidates get credit for votes wherever they get them under both the current system and the Compact.

Even if a particular minor-party or independent candidate is not on the ballot in all 50 states, Tara Ross is incorrect in saying that a “logistical nightmare” would be created because of differences in state ballot-access requirements.

The treatment of a candidate who is not on the ballot in a particular state is identical under both the current system and the National Popular Vote Compact.

• Each state’s election officials certify every popular vote that is cast and every electoral vote that is earned for each candidate who received popular or electoral votes in their state. A state canvassing board or other designated board or official first certifies the results, and the state’s Governor subsequently certifies them in the state’s Certificate of Ascertainment.
• A candidate’s failure to receive any popular or electoral votes from one state does not cause that candidate to forfeit the popular or electoral votes that he or she earned from another state. All of the popular and electoral votes that the candidate receives are added together to arrive at the candidate’s nationwide total.

For example, in 1912, Theodore Roosevelt was not on the ballot in every state when he ran as the nominee of the Progressive (Bull Moose) Party. He nevertheless received 4,120,207 popular votes nationwide and 88 electoral votes from the six states that he carried.

In 1948, Strom Thurmond was not on the ballot in every state. He nevertheless received 1,169,114 popular votes nationwide and 39 electoral votes from the five states that he carried.

Footnotes

In testimony to the Delaware Senate, Tara Ross, a lobbyist against the National Popular Vote Compact who works closely with Save Our States, has raised the possibility that a minor-party or independent presidential candidate might win the national popular vote without being on the ballot in Delaware:

“Delaware could be required to cast its electoral votes for a candidate who did not qualify for the ballot in Delaware.”[798]

It would be unlikely that a minor-party presidential candidate would be strong enough to win the most popular votes nationwide, while being incapable of collecting the 650 signatures necessary to qualify for the ballot in Delaware.

In fact, presidential candidates who have significant national support generally qualify for the ballot in all 50 states (or all but a few states), as detailed in section 9.30.16.

But even if Ross’ politically implausible scenario were to occur, the National Popular Vote Compact would deliver precisely its promised result, namely the election of the presidential candidate who received the most popular votes nationwide.

Footnotes