9.32 Myths about Adjudication of Election Disputes

Opponents of the National Popular Vote Compact have argued that it is flawed, because it does not establish a commission to resolve conflicts.

About half of all interstate compacts are administered entirely by pre-existing state officials and agencies, while the other compacts have commissions.

In his book Interstate Cooperation: Compacts and Administrative Agreements,[881] Joseph F. Zimmerman points out that the interstate compacts that have commissions are typically one of two types:

• Facility-management compacts—that is, there is an ongoing need to manage business operations (e.g., bridges, tunnels, airports, seaports, railroads, ferries, marine facilities, office buildings, radioactive waste storage facilities, and industrial development projects). Examples are the New York–New Jersey Port Authority Compact of 1921[882] and the Southwestern Low-Level Radioactive Waste Disposal Compact, where one state operates a storage facility used by other states.[883]
• Regulatory compacts—that is, the compact is intended to create a continuing stream of regulations. Examples include the Interstate Insurance Product Regulation Compact[884] and the Potomac River Compact.[885]

Interstate compacts with commissions typically have dedicated budgets and staff to carry out their functions.

In contrast, what Zimmerman calls “compacts sans commissions” are typically those in which the compact is intended to execute one (or a very small number) of precisely defined policies.

There are only three functions that would be performed by the states belonging to the National Popular Vote Compact. They would take place once every four years during a very limited period of time. These functions are well-defined and ministerial in nature, namely to:

(1) determine the number of votes for each presidential-vice-presidential slate in each state and the District of Columbia (clause 1 of Article III of the Compact),

(2) add these numbers together to get the nationwide total number of votes received by each presidential slate and identify the presidential-vice-presidential slate that received the most votes (clause 2 of Article III of the Compact), and

(3) certify the appointment in that official’s own state of the slate of presidential electors nominated in that official’s own state in association with the national popular vote winner (clause 3 of Article III of the Compact).

The second and third functions are, on their face, unambiguous and ministerial. The first function is made unambiguous and ministerial by the fifth clause of Article III of the Compact:

“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.”

This is not to say that vote counts cannot be challenged.

Questionable state vote totals can be challenged under the Compact in five ways, including administrative proceedings (e.g., recounts, audits) and proceedings in lower state courts, state supreme courts, lower federal courts, and the U.S. Supreme Court (section 9.30.2).

These five ways of challenging election results are the same ones that are available today under the current system.

Thus, if the popular vote count from a particular state is disputed, that dispute would be adjudicated in the state-of-origin—not in the compacting states.

Once the popular vote count from another state is litigated in the state-of-origin, the Full Faith and Credit Clause of the U.S. Constitution requires every other state to accept the outcome of the litigation in the state-of-origin. The Constitution provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”[886]

The three functions of the chief election officials of the compacting states listed above are performed after each state’s final determination of its popular vote count.

Opponents of the National Popular Vote Compact have argued that it is flawed, because it did not create a commission (presumably to second-guess the outcome of litigation already conducted in the state-of-origin).

However, the reality is that a commission would be totally superfluous for two independent reasons:

First, this non-judicial commission would be obligated by the Full Faith and Credit Clause of the U.S. Constitution to honor the rulings already made in the state-of-origin.

Second, anything a non-judicial commission might try to decide would be immediately appealed to a court, which would then make the final decision.

Footnotes

A group called “Democrats for the Electoral College” works closely with Save Our States.

This group is headed by Jasper Hendricks, who is also Executive Director of the Black Legislative Leadership Network—a group funded by Save Our States.[887]

Hendricks claims that “States could sue other states” as a result of the National Popular Vote Compact:

“Today, one state cannot sue another state to challenge its election process or results. NPV would change this by requiring states to use results from other states. For the first time, states would have justiciable interests in other states’ elections, leading to endless lawsuits across state lines.”[888] [Emphasis added]

The first sentence above is correct concerning the situation today.

Indeed, this aspect of our federal system of government was illustrated on December 7, 2020—a week before the Electoral College meeting.

At that time, Texas Attorney General Ken Paxton asked the U.S. Supreme Court to allow the state of Texas to file a complaint challenging Pennsylvania’s election processes and popular vote count.[889]

Paxton’s complaint was an attempt to challenge the election returns from Pennsylvania that showed that Joe Biden had carried the state in November.

The U.S. Constitution gives the Supreme Court original jurisdiction over cases between states.

The Supreme Court ordinarily gives states the chance to present their case.

However, on December 11, 2020, the Court refused Texas’ request to file 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.”[890] [Emphasis added]

The remainder of Hendricks’ statement is incorrect.

Nothing on Jasper Hendricks’ web site provides any support for his assertion that the National Popular Vote Compact gives any state government a “justiciable interest” in another state’s election.

Each state reaches its final determination of its popular vote count (through its Board of Canvassers or other designated board or official).

The Compact certainly does not empower any member state to judge the election returns of any other state—much less initiate litigation disputing another state’s returns. Instead, the Compact explicitly forecloses any such effort:

“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….”[891] [Emphasis added]

There is no shortage of ways today to challenge a state’s election returns. Indeed, popular-vote counts may be challenged today in the state-of-origin in five ways:

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

All five ways were used in both 2000 and 2020.[892]

All five of these existing avenues for litigation will continue to exist under the National Popular Vote Compact.

Once the validity of a state’s vote count has been litigated in the state-of-origin, that state cannot possibly complain if its own certified vote count is accepted at face value by states belonging to the Compact.

So, if a vote count has already been litigated in the state-of-origin, and if the states belonging to the Compact are obligated to treat the officially certified vote count of each state as “conclusive,” what state does Hendricks think has a “justiciable interest” in the matter?

In any case, there is certainly no shortage of non-state litigants today who can challenge election processes or results. In addition, the Electoral Count Reform Act of 2022 explicitly guarantees the presidential candidates themselves direct access to a special three-judge court.

Even if state governments were to acquire the power to challenge the election processes or vote counts of other states, the only practical effect would be to change the identity of the litigants—not the issues to be litigated.

In short, the National Popular Vote Compact does not create any basis for litigation between states. However, even if it did, it is not clear that such a change would have any practical effect.

Footnotes

Trent England, Executive Director of Save Our States (the leading group employing lobbyists to oppose the adoption of the National Popular Vote Compact), testified against the Compact at a Connecticut legislative hearing on a related question:

“While the compact creates potential conflicts between states, it is silent as to how to adjudicate these disputes.”[893] [Emphasis added]

The National Popular Vote Compact is indeed silent about this matter.

The reason is that there is no need for the Compact to say anything, because the U.S. Constitution already provides the answer:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.”[894][Emphasis added]

Federal law additionally states:

“The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.”[895]

Footnotes

Sean Parnell, Senior Legislative Director of Save Our States, has said that, because of the Compact:

“Lawyers would rush into state and federal courts seeking partisan advantage.”[896]

These words most accurately describe the current state-by-state winner-take-all method of awarding electoral votes.

As UCLA Law Professor Richard L. Hasen and editor of the Election Law Blog wrote in 2022:

“Election litigation rates in the United States have been soaring, with rates nearly tripling from the period before the 2000 election compared to the post-2000 period. In 2020, election litigation rates increased almost 26 percent over rates in 2016.”[897]

In 2020, there were 64 lawsuits and numerous additional administrative proceedings involving the presidential election. They were filed in eight closely divided battleground states—Arizona, Georgia, Michigan, Minnesota, Nevada, New Mexico, Pennsylvania, and Wisconsin.[898], [899]

In 2016, the courts considered ordering recounts in three states (Pennsylvania, Michigan, and Wisconsin), and allowed a recount in one state (Wisconsin).

In 2000, the dispute over Florida’s 25 electoral votes was considered by:

• administrative proceedings by the Florida election officials,
• state court proceedings in lower courts,
• state court proceedings in the Florida Supreme Court,
• federal court proceedings in lower federal courts, and
• proceedings in the U.S. Supreme Court.

The reason there are so many lawsuits under the current system is that America’s 158,000,000 voters are divided into 51 separate state-level elections.

In any given election year, a dozen-or-so states are close enough (say, 8 percentage points or less) to give candidates a reason to campaign in those states. Several of these battleground states frequently end up being very close on Election Day. For example:

• Biden’s win in the Electoral College in 2020 was decided by margins of 11,779 votes in Georgia, 10,457 in Arizona, and 20,682 in Wisconsin.[900]
• Trump’s win in the Electoral College in 2016 was decided by margins of 10,704 votes in Michigan, 22,748 in Wisconsin, and 44,292 in Pennsylvania.
• Bush’s win in the Electoral College in 2004 was decided by a margin of 118,601 votes in Ohio.
• Bush’s win in the Electoral College in 2000 was decided by a margin of 537 votes in Florida.

Recounts and hair-splitting legal disputes would have been far less likely if the lawyers for the disgruntled loser had to surmount a nationwide margin such as:

• 7,052,711 votes in 2020
• 2,868,518 in 2016
• 4,983,775 in 2012
• 9,549,976 in 2008
• 3,012,179 in 2004
• 543,816 in 2000.

Note that Save Our States simultaneously argues that the National Popular Vote Compact will overwhelm the courts and that there is no means of adjudicating disputes under the Compact.

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

“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.”[901] [Emphasis added]

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

“Even if state officials knew or suspected that a state’s reported vote total was incorrect, the compact offers no recourse.”[902] [Emphasis added]

Footnotes