9.9 Myths about Logistical Nightmares Arising from Differences in State Laws

Tara Ross, an opponent of the National Popular Vote compact, predicts that the compact would create:

“logistical nightmares [that] could haunt the country.”[257]

Ross also notes:

“There are … inconsistencies among states’ ballots that would skew the election results.… States differ in their requirements for ballot qualification.”[258]

Adding up the popular votes that are cast in each state to obtain the nationwide popular vote total for each presidential candidate is not a difficult task, much less a “logistical nightmare.”

Differences in election laws are inherent in our federalist system, which gives the states control over elections.

The Founders gave the states exclusive control over the manner of electing the President so as to provide a check on a sitting President who might try to manipulate the rules for his own re-election in conjunction with a possibly compliant Congress.

There is nothing incompatible between the concept of a national popular vote for President and the inevitable differences in election laws resulting from state control over elections. This was certainly the mainstream view when the U.S. House of Representatives passed a constitutional amendment in 1969 for a national popular vote by a 338–70 margin. That amendment was endorsed by Richard Nixon at the time. That amendment was also endorsed by Gerald Ford, Jimmy Carter, and members of Congress who later became vice-presidential and presidential candidates such as Congressman George H.W. Bush (R–Texas), and Senator Bob Dole (R–Kansas).

The proposed 1969 constitutional amendment provided that the certified popular-vote tallies from each state would be added together to obtain the nationwide total for each candidate. See section 3.4 for more information.

Similarly, the National Popular Vote compact uses the very same process of adding up the popular-vote count from each state.

It is certainly true that some state election laws vary in many ways, including voter-registration policies, poll-closing time, amount of early voting, requirements for absentee voting, ex-felon voting, and so forth.

However, once a vote is cast in accordance with whatever policies are in effect in each state, there is no practical problem in adding up the votes from the 50 states and the District of Columbia.

There is certainly no “logistical nightmare” created by simply adding up the certified popular-vote totals for each candidate from each state just because one state happens to close its polls at a different time than another.

Indeed, under the current system, the electoral-vote counts from all 50 states are comingled and added together—despite the fact that each of these electoral-vote counts has been significantly impacted by differing state election laws (including laws governing ballot access, poll-closing times, voter registration, ex-felon voting, the extent and nature of early voting, and voter identification requirements).

It is incorrect to argue that the election laws of one state do not matter to citizens of other states.

Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the election practices of every state. Everyone in the United States is affected by how electoral votes are awarded by every state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect—and indeed have affected—the ultimate outcome of national elections.

For example, the 2000 Certificate of Ascertainment (required by federal law) from the state of Florida reported 2,912,790 popular votes for George W. Bush and 2,912,253 popular votes for Al Gore. It also reported 25 electoral votes for George W. Bush and 0 electoral votes for Al Gore. The 25–0 division of the electoral votes from Florida in 2000 was comingled and added together with the count of electoral votes from all the other states. The 25–0 division of the electoral votes from Florida determined the outcome of the national election. In the same manner, a particular division of the popular vote from a particular state might, when added to the popular vote count from other states, decisively affect the national outcome in some future election under the National Popular Vote compact.

Concerning the differences in ballot-access requirements among the states, it is true that it is easier to get on the ballot in some states than others. Nonetheless, serious third-party candidates for President manage to get on the ballot in virtually every state. For example, Ross Perot (who received 19% of the national popular vote in 1992) was on the ballot in all 50 states in 1992 and 1996. John Anderson (who received 7% of the national popular vote in 1980) was on the ballot in all 50 states. The Libertarian Party got its presidential nominee on the ballot in all 50 states in 1980, 1992, and 1996. Lenora Fulani, the nominee of the New Alliance Party, was on the ballot in all 50 states in 1988. Ralph Nader (who received 2.7% of the vote in 2000) got onto the ballot in 48 jurisdictions. In 2012, Gary Johnson (the nominee of the Libertarian Party) was on the ballot in 48 states.[259]

However, even if a particular third-party candidate is not on the ballot in all 50 states, no “logistical nightmare” is created.

The consequence to a candidate of not being on the ballot in a particular state is identical under both the current system and the National Popular Vote plan, namely that the candidate is unlikely to receive any substantial number of popular votes from that particular state (barring the remote possibility of a successful write-in campaign in that state).

In terms of election administration, the absence from the ballot of a particular candidate in a particular state does not create any problem because election officials in each state simply report whatever votes are cast in their state for whichever candidates actually receive votes in their state. Today, each state reports the vote total for each presidential candidate on its Certificate of Ascertainment (required by section 6 of Title 3 of the United States Code).[260]

If a particular candidate does not receive any votes in a particular state, there is no vote total reported for that candidate from the state. If a candidate wins votes in a state where he is on the ballot, his absence from the ballot in another state does not cause him to forfeit his votes from the first state, much less create a “logistical nightmare.” All of the votes that the candidate actually receives are added together to arrive at his nationwide total.

In 1860, Abraham Lincoln was the nominee of the newly created Republican Party (which first nominated a candidate for President in 1856). The Republican Party was not on the ballot in 1860 in nine states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Tennessee, and Texas). Consequently, Lincoln received no popular votes from those states (and, of course, no electoral votes). No problem of election administration was created by Lincoln’s absence from the ballot in nine states. His absence from the ballot in nine states did not cause him to forfeit the votes that he received from other states; it did not prevent him from winning the largest number of popular votes nationwide (39%); it did not prevent him from winning a majority in the Electoral College; it did not prevent him from becoming President; and it did not create a “logistical nightmare” in terms of election administration.

Similarly, Strom Thurmond (1948), George Wallace (1968), and Theodore Roosevelt (1912) were not on the ballot in every state; however, their absence from the ballot in numerous states did not prevent them from receiving the electoral votes from the states that they carried. No “logistical nightmare” was created because of their absence from the ballot in other states.

The National Popular Vote compact provides that the results from each state (and D.C.) would be added together—the very same process of adding up 51 sets of numbers that would have occurred under the constitutional amendment that was approved by the U.S. House of Representatives in 1969.

Tara Ross never specifically says how the adding up of 51 sets of numbers would create a “logistical nightmare”—much less how it “would skew the election results.”

It is true that some state election laws vary in many ways.

For example, some states have early poll-closing times (e.g., 6:00 P.M. in Kentucky and Indiana), whereas the polls stay open until 9:00 P.M. in other states. In addition, polls close at different times due to the nation’s numerous time zones. Differences in poll-closing times would be handled under the National Popular Vote in the same way they are handled now—that is, the polls would open and close in each state in accordance with prevailing law.[261]

Tara Ross cites the differences among the states concerning the eligibility of ex-felons to vote. Under the National Popular Vote plan, each state would conduct the election under its own laws—the same thing that would have occurred under the constitutional amendment that was approved by the U.S. House of Representatives in 1969. The certified popular vote totals from each state for each candidate would be added up to produce nationwide totals—the same thing that would have occurred under the constitutional amendment that was approved by the U.S. House of Representatives in 1969.

Tara Ross further observes:

“Inevitably, [a state] would have to abide by national election results derived from policies with which it disagrees.”[262]

This is precisely what happens now under the current U.S. Constitution because the Constitution empowers the states to control elections. All of the people of the United States are impacted by the election policies of every other state. No one can dispute that the procedures governing presidential elections in battleground states (e.g., Florida and Ohio) have affected the outcome of national elections and significantly impacted the entire country.

The fact that Oregon conducts its elections 100% by mail and that Minnesota permits voter registration on Election Day arguably contributed to the defeat of two sitting Republican U.S. Senators in November 2008, thereby affecting the course of national legislation because it gave the Democrats 60 votes in the U.S. Senate in 2009. A change in the Massachusetts vacancy-filling law enabled Republican Scott Brown to win the U.S. Senate seat previously occupied by the late Ted Kennedy in 2010 and significantly impacted the course of national legislation (e.g., the Affordable Care Act).

The genius of the federalist approach set forth in the U.S. Constitution is that no single political party is ever in a position to impose politically advantageous voting procedures on the entire country and thereby lock in a self-perpetuating advantage on the national level.

The real question for opponents of state control over elections is whether they would have been comfortable under all of the following scenarios:

• Suppose that in 2003 (just prior to the 2004 presidential election), the then-Republican-controlled Congress and a then-sitting Republican President enacted uniform national voting procedures, including photo identification; vigorous purging of the voter rolls of those who did not vote in the immediately preceding election; and closing the polls at 6:00 P.M. in every state.
• Suppose that in 2009, the then-Democratic-controlled Congress and the then-sitting Democratic President enacted uniform national voting procedures, including automatic permanent voter registration based on the census; advance voting several weeks before Election Day in every state; and no-excuse absentee voting in every state.
• Suppose that at some future time, one political party controls both houses of Congress and the White House.

There are advantages to uniformity in election laws, and there are advantages to preventing a single political party from adopting uniform national laws that allow it to perpetuate itself in office.

The Founders resolved this dilemma by choosing a federalist approach that gives the states control over elections. Differences in state election laws resulting from our federalist system are not “logistical nightmares [that] could haunt the country” but a strength of our nation’s Constitution.

As then-Congressman George H.W. Bush (R-Texas) said on September 18, 1969, in support of direct popular election of the President:

“This legislation has a great deal to commend it. It will correct the wrongs of the present mechanism … by calling for direct election of the President and Vice President.… Yet, in spite of these drastic reforms, the bill is not … detrimental to our federal system or one that will change the departmentalized and local nature of voting in this country.

“In electing the President and Vice President, the Constitution establishes the principle that votes are cast by States. This legislation does not tamper with that principle. It only changes the manner in which the States vote. Instead of voting by intermediaries, the States will certify their popular vote count to the Congress. The states will maintain primary responsibility for the ballot and for the qualifications of voters. In other words, they will still designate the time, place, and manner in which elections will be held. Thus, there is a very good argument to be made that the basic nature of our federal system has not been disturbed.”[263] [Emphasis added]

Of course, if a national consensus emerges in favor of uniform federal control of elections at some time in the future, the U.S. Constitution can be so amended to eliminate state control over elections at that time.

Meanwhile, the National Popular Vote plan is based on the constitutional system that actually exists in the United States and on the reality that there is widespread public and legislative support for state control of elections.

Footnotes

Tara Ross, an opponent of the National Popular Vote compact, has raised the possibility in written testimony to the Delaware Senate that a presidential candidate from Texas (say, Congressman Ron Paul) might not be on the ballot in Delaware but nonetheless could win the national popular vote. She then raises the possibility that:

“Delaware could be required to cast its electoral votes for a candidate who did not qualify for the ballot in Delaware.”[264]

It is most unlikely that a serious candidate for President would run without qualifying for the ballot in all 50 states. Serious candidates for President generally qualify for the ballot in all 50 states.

• Ross Perot was on the ballot in all 50 states in both 1992 and 1996.
• John Anderson was on the ballot in all 50 states in 1980.
• Lenora Fulani, the nominee of the New Alliance Party, was on ballot in all 50 states in 1988.
• The Libertarian Party got its presidential nominee on the ballot in all 50 states in 1980, 1992, and 1996.
• Ralph Nader (who received only 2.7% of the national popular vote in 2000) was on the ballot in 48 jurisdictions.

It would be especially unlikely that Tara Ross’ hypothetical Texas regional candidate would have been unable to qualify in Delaware, because a new political party can qualify for the ballot in Delaware with only 650 signatures.

In any event, it would be very unlikely that Ross’ hypothesized candidate from Texas would have received the most popular votes in all 50 states and the District of Columbia without being on the ballot in every state (or virtually every state).

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 in all 50 states and the District of Columbia.

Tara Ross further hypothesized that the presidential candidate from Texas might win the national popular vote and then appoint Texans to represent Delaware in the Electoral College.

“Delaware probably did not nominate a slate of electors for Paul because he was not on its ballot. NPV’s compact offers a solution, but it is doubtful that voters in Delaware will like it. Paul would be entitled to personally appoint the three electors who will represent Delaware in the Electoral College vote. In all likelihood, he would select Texans to represent Delaware in the presidential election….”[265]

First, under the National Popular Vote compact, nominees for the position of presidential elector would be chosen in exactly the same way as they currently are (that is, by local political parties in accordance with existing state law). The provision of the National Popular Vote compact cited in Ross’ hypothetical scenario applies only if a local political party in a state fails to nominate the exact number of candidates for the position of presidential elector to which the state is entitled. In this unlikely contingency, the compact permits the winning presidential candidate to decisively and quickly untangle any problem that might prevent him or her from receiving the full number of electoral votes to which he or she is entitled. This back-up procedure is designed to ensure that the compact guarantees the election of the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. Clause 7 of Article III of the compact states:

“If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.” [Emphasis added]

Second, there is historical evidence about how real-world politicians would behave in this situation. Under existing law in Pennsylvania, every presidential candidate, in every election, directly chooses every presidential elector in Pennsylvania. Needless to say, no presidential candidate has ever chosen a Texan or any other out-of-state person for the position of presidential elector in Pennsylvania. Indeed, it would be politically preposterous for a presidential candidate to insult Pennsylvania gratuitously by selecting out-of-staters to the ceremonial position of presidential elector. It would be even more preposterous for someone who had just won the national popular vote (and was about to become President and face the task of unifying the country) to insult a state gratuitously.

Third, it would be extraordinary that Ron Paul (whom Ross hypothesizes just won the most popular votes across the entire United States) would not have three supporters in Delaware.

Fourth, in case any state believes that Ross’ hypothetical scenario is politically plausible and potentially harmful, every state has the power, under the U.S. Constitution, to adopt residency qualifications for the position of presidential elector. Indeed, Delaware is an example of a state that has already enacted additional qualifications for the position of presidential elector (albeit not to disqualify non-resident presidential electors).

Footnotes