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

Fri Jul 24 08:11:19 PDT 2020

This is a very interesting issue.  And I heartily echo the praise of Derek's work.  Here's the relevant language from the National Popular Vote Compact:

"At least six days before the day fixed by law for the meeting and voting by the presidential electors [i.e., the federal safe harbor deadline], each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.

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."

These provisions raise at least two problems along the lines Sean mentioned.  First, federal (or potentially even state) litigation might be pending in a member state that requires that state to change its election tally after the safe harbor deadline.  In that case, a court might require that member state to accept a later, court-ordered official tally for its popular vote, while the Compact requires other member states to accept that state's tally as it stood on the safe harbor deadline.  In a close election, this could lead different member states to come to different conclusions as to which candidate won the national popular vote.

Second, non-member states aren't required to issue official statements of their popular vote tallies by the safe harbor deadline.  The Compact itself imposes a new legal obligation, as a matter of state law, on member states to issue such a statement by the deadline, even though neither federal law nor Bush v. Gore requires them to do so.  Non-member states, in contrast, remain free to issue official determinations after that deadline.

Having said that, federal law requires presidential electors to cast their votes six days after the safe harbor deadline.  And the Constitution requires all states' electors to cast their votes on the same day.  So any post-election administrative proceedings or litigation for the purpose of deciding which slate of electors should be appointed can realistically only extend for an extra six days past the safe harbor.  Some official determination would have to be made about a contested presidential election within a state before the electors cast their votes.  I don't think any of the potential alternatives are at all realistic:  the state with the dispute fails to cast any electoral votes, a court enjoins all electors across the nation from voting until issues within that state are resolved, or a court allows that state's electors to cast their votes late in violation of the Constitution's plain text.

States are free, of course, to continue post-election litigation and other proceedings even after electors have been appointed and voted.  By that point, the only purpose would be to attempt to influence Congress to either reject particular electoral votes, or to accept an alternate slate of electoral votes instead, when it convenes in early January.  The Electoral Count Act imposes constraints on this process (though there seem to be separate questions about whether the Act actually may constitutionally limit Congress' authority, and whether it's judicially enforceable in any way).

In short, yes, the Compact's assumption that official results will be available on the safe harbor date is problematic, for different reasons, as it concerns results from both member and non-member states.  Realistically, though, it seems such disputes could extend only for an extra six days (at least insofar as they affect which slate of electors will be appointed).  Conceivably the Compact could've been drafted a bit differently to avoid this issue.  Incidentally, I have a draft about the numerous serious and largely overlooked constitutional problems with the Compact (having nothing to do with whether it requires congressional approval), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3546546

Thanks,

Michael

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of sean at impactpolicymanagement.com <sean at impactpolicymanagement.com>
Sent: Friday, July 24, 2020 10:39 AM
To: 'Rick Hasen' <rhasen at law.uci.edu>; 'Election Law Listserv' <law-election at uci.edu>
Subject: [EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

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<https://urldefense.com/v3/__https://www.archives.gov/electoral-college/2016__;!!PhOWcWs!kqrFvWn7R8oysk_BHDT5RhJwr-BWh5O2ed6545vA04Dbo19M5a3vf_kjENvhy_TQ9UE$> 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

Derek Mueller on Bush v. Gore and the Electoral Count Act<https://urldefense.com/v3/__https://electionlawblog.org/?p=113369__;!!PhOWcWs!kqrFvWn7R8oysk_BHDT5RhJwr-BWh5O2ed6545vA04Dbo19M5a3vf_kjENvhWrCh73Y$>

Posted on July 23, 2020 11:53 am<https://urldefense.com/v3/__https://electionlawblog.org/?p=113369__;!!PhOWcWs!kqrFvWn7R8oysk_BHDT5RhJwr-BWh5O2ed6545vA04Dbo19M5a3vf_kjENvhWrCh73Y$> by Richard Pildes<https://urldefense.com/v3/__https://electionlawblog.org/?author=7__;!!PhOWcWs!kqrFvWn7R8oysk_BHDT5RhJwr-BWh5O2ed6545vA04Dbo19M5a3vf_kjENvh7NSK-Ic$>

In this short piece<https://urldefense.com/v3/__https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3620140&dgcid=ejournal_htmlemail_law:society:public:law:constitutional:law:ejournal_abstractlink__;!!PhOWcWs!kqrFvWn7R8oysk_BHDT5RhJwr-BWh5O2ed6545vA04Dbo19M5a3vf_kjENvhlGQUr5g$>, 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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