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

Mon Sep 7 20:02:20 PDT 2020

There are five misstatements in Sean Parnell’s July 24 Election Blog posting concerning the National Popular Vote Compact, when he said: 

“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.”

First, there is nothing in the National Popular Vote Compact about computing the national popular vote total before, or by, the safe-harbor day.  In fact, Section 1 of Article III of the National Popular Vote Compact directly contradicts Parnell’s statement.  The deadline for this computation is “prior to” the meeting of the Electoral College -- that is, 6 days after the safe-harbor date. 

Second, there is nothing in the Compact about the Certificates of Ascertainment being “the official source for obtaining vote totals in the NPV compact.”  In fact, the compact was specifically crafted to avoid reliance on this particular source.  As stated in section 4 and 5 of Article III, the actual source of the Compact’s presidential vote counts is any “official statement” documenting a state’s “final determination” of its vote count.  Documentation of a state’s “final determination” is available from the public records and minutes of the actions of the state’s election board or chief election official.  The Certificates are certainly an allowable way to document a state’s “final determination,” but they are not the only way, and the Compact certainly does not rely on them.  

Third, Parnell claimed in his July 24 posting that “numerous states … missed the safe harbor” deadline because the Certificates of Ascertainment “bear dates after the safe harbor deadline.” He added on August 7:

“Anywhere from 8-12 states on average have missed the safe harbor deadline in each of the past 5 elections.”  

As anyone who examines these  <https://www.archives.gov/electoral-college/2016> Certificates will immediately see, the dates that these Certificates “bear” is the date when the governor signed the Certificate -- not the date when the state elections board (or appropriate official or body) reached the state’s “final determination.” The safe-harbor benefits under federal law (3 U.S.C. §5) accrue to a state because it reached its “final determination” before the safe-harbor date – not because of when the governor signed a certificate.   The fact that these certificates were signed after the safe-harbor date is not evidence that any state official was negligent, that any state is cavalier about compliance, or that any state lost its safe harbor benefits.  However, it is evidence of Parnell trying to create an inaccurate impression.  

Fourth, Parnell’s claim that the compact assumes that states will submit “their Certificate of Ascertainment to the National Archives on or before the safe harbor deadline” is both false and a distraction.  Parnell’s reason for trying to focus on the shiny object of the National Archive’s Certificate becomes clear from his February 24, 2014 testimony before the Connecticut Government Administration and Elections Committee: 

“Federal law is very clear – the governor of each state is required to submit the Certificate of Ascertainment via registered mail to the Archivist of the United States ‘…as soon as practicable after the conclusion of the appointment of the electors…’  “There is nothing in federal law that requires the governor to submit it prior to the meeting of the Electoral College.”  

In fact, the actual wording of the federal law (3 U.S.C. §6) directly contradicts Parnell’s selective and inaccurate testimony to the Connecticut legislature.  Parnell neglected to mention that six other additional copies of the Certificate are required by the very same section of the very same federal law that mentions the National Archive’s copy.  

“It shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate.”   

Fifth, Parnell said in his August 7 posting:  

“I’m not sure too many people outside of the folks at National Popular Vote believe the safe harbor deadline is truly a ‘drop dead’ date.”

Although Parnell approvingly cited Prof. Derek Muller’s recent  <https://moritzlaw.osu.edu/oslj/2020/08/05/restraining-judicial-application-of-the-safe-harbor-provision-in-the-electoral-count-act/> Ohio State Law Journal article, Parnell failed to mention some rather prominent people that Prof. Muller himself identified as harboring this allegedly erroneous belief, namely the two district courts and Federal Appeals Court that foreclosed presidential recounts in 2016 in Pennsylvania and Michigan on the basis of the rulings in 2000 by the Florida Supreme Court and the U.S. Supreme Court.  Meanwhile, Parnell tries to dismiss the U.S. Supreme Court’s reasoning as “applicable to no other state.” However, last we looked Michigan and Pennsylvania are states.  In fact, the Florida brief that Muller’s research cited as the origin of the Florida Supreme Court’s and U.S. Supreme Court’s reasoning in 2000 did not cite features that were in any way unusual or unique to Florida’s recount law.  Indeed, those features were so generic that they probably apply to every state’s recount law.  

In any case, no one at National Popular Vote has, to my knowledge, ever opined about these 2016 federal court decisions from Michigan and Pennsylvania.  Parnell’s statement about what the “folks at National Popular Vote believe” is just made-up nonsense.

The take-home conclusion from Parnell’s five misstatements is that anyone considering his arguments should independently verify his statements about what’s really in the NPV compact, what’s really in the Certificates of Ascertainment, what’s really in federal law, and what the “folks at National Popular vote” ever actually said.  

Dr. John R. Koza, Chair

National Popular Vote

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Email: koza at NationalPopularVote.com <mailto:koza at NationalPopularVote.com>   

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of sean at impactpolicymanagement.com
Sent: Friday, July 24, 2020 7:39 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 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.

 <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D113369&title=Derek%20Mueller%20on%20Bush%20v.%20Gore%20and%20the%20Electoral%20Count%20Act> 

Posted in  <https://electionlawblog.org/?cat=1> Uncategorized

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