[EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

[sean at impactpolicymanagement.com]

Professor Mueller’s piece on the “safe harbor” deadline for certification of electors is relevant to more than simply this fall’s election and potential problems related to delayed vote counts. The people who wrote the National Popular Vote interstate compact (NPV) erroneously assumed as well that the Supreme Court’s ruling in Bush v. Gore required states to submit their Certificate of Ascertainment to the National Archives on or before the safe harbor deadline, which led them to believe the vote totals contained on those certificates would be publicly available by that same day. The importance of the certificates in the NPV scheme is that they are supposed to be the “official” source for obtaining vote totals from each state and determining the winner under NPV. 

 

The piece is excellent, but there’s one thing missing, which is the record of numerous states who have in fact missed the safe harbor deadline in recent presidential elections. I don’t have the exact numbers in front of me at the moment but as best I can recall in 2016 there were about a dozen states whose certificates bear dates after the safe harbor deadline, and in 2012 it was a bit fewer, 8-10 I think. The 2016 certificates are here, https://www.archives.gov/electoral-college/2016 if anyone feels the need to check my work. As I recall, states beginning with the letter “M” were wildly overrepresented among the states missing the deadline. The Archives used to have the certificates for other elections on its web site, but it has been undergoing a site redesign for some time now and those aren’t readily available. The people at the archives were kind enough to send me files of the 2012 certificates however, and again I’m happy to send that to anyone who would like to confirm (or refute) my statement. In addition, the book Every Vote Equal has, in appendix J, Table J (page 820, fourth edition), a listing of the dates on these certificates for the 2000, 2004, and 2008  (table on the preceding page has the safe harbor dates for each), and it shows that 5, 18, and 10 states, respectively, missed the safe harbor deadline in those elections (and Oregon’s apparently had no date?).

 

I could prattle on about Certificates of Ascertainment for a while more, but I’ve been told that’s annoying, so I’ll stop. But thanks to Professor Mueller for his concise paper on the topic.

 

Best,

 

Sean Parnell

 


 <https://electionlawblog.org/?p=113369> Derek Mueller on Bush v. Gore and the Electoral Count Act


Posted on  <https://electionlawblog.org/?p=113369> July 23, 2020 11:53 am by  <https://electionlawblog.org/?author=7> Richard Pildes

In this short  <https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3620140&dgcid=ejournal_htmlemail_law:society:public:law:constitutional:law:ejournal_abstractlink> piece, Derek Mueller makes an important point: the Supreme Court did not hold, in Bush v. Gore, that the Electoral Count Act mandates that all state counting or recounting processes in the presidential election must end by the so-called “safe harbor” date in the Act. Instead, the Court (rightly or wrongly) interpreted Florida law, as construed by the Florida Supreme Court, as reflecting a state policy that such processes end in Florida by that date.

Derek points out that lower federal courts are mistakenly taking Bush v. Gore as holding that the federal Act mandates the state voting process to be complete by the “safe harbor” date (this year, Dec. 14th). Given the likely volume of absentee ballots this fall and the delay in counting them, it’s possible that in some states the process will bump up against this date. I’ve urged, along with others, that Congress move back this date in light of that. But especially if Congress does not do that, it’s important that Derek has clarified this point well in advance of any context in which it might become significant.

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