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

Tue Sep 8 09:14:32 PDT 2020

When raising scary scenarios about National Popular Vote (NPV), it’s a good
idea to always also ask how the hypothetical problem would be handled by the
current state-by-state winner-take-all method of awarding electoral votes.

So, to paraphrase Dan's scary scenario about National Popular Vote:  

“Under the current system, what would have prevented in 2012, the Republican
governors and legislatures in Florida (29 electoral votes), North Carolina
(15), Virginia (13), Pennsylvania (20), Ohio (18), Michigan (16), Wisconsin
(10) from excluding Obama from the ballot and thereby deciding the
Presidency long before Election Day?”

The remedy for this scary scenario is the same under both the current system
and National Popular Vote.

Since neither Dan nor I are aware of any existing federal or state law
covering this particular kind of power play, the answer would be the courts
(if necessary) or public opinion.  

As an example of the role of public opinion, former Kansas Secretary of
State Kris Kobach tried to orchestrate the removal of Obama from the ballot
in on September 10, 2012 (NYT story
<https://www.nytimes.com/2012/09/15/us/politics/kansas-election-officials-se
ek-copy-of-obamas-birth-certificate.html> ), but “a wave of angry backlash”
ended that on September 14 (NYT story
<https://www.nytimes.com/2012/09/15/us/politics/kansas-election-officials-se
ek-copy-of-obamas-birth-certificate.html> ).  

Had public opinion not worked in 2012 in Kansas, the answer, under the
current system, would have been the courts.   

By the way, Truman’s problem in Alabama in 1948 was not that Truman had been
excluded from the ballot by legislation that targeted him.  At the time,
Alabama had not yet adopted the short presidential ballot.  Every
presidential candidate in every presidential election was excluded from the
ballot.  What was on the ballot in Alabama in 1948 were the 11 separate
races for the position of presidential elector, and Thurmond electors won
all 11 races.    As can be seen from the 1960 Alabama ballot below, neither
Kennedy nor Nixon or any other presidential candidate’s name appeared on the
ballot.  Interestingly, the words “White Supremacy” appear in the Democratic
Party logo.   Today, all states use the short presidential ballot.

The 1960 Alabama ballot is from Neil Peirce’s book.

Peirce, Neal R. 1968. The People’s President: The Electoral College in
American History and Direct-Vote Alternative. New York, NY: Simon and
Schuster.

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.johnkoza.com/> www.johnkoza.com

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

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Dan Meek
Sent: Tuesday, September 8, 2020 1:29 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

Dear Dr. Koza,

Alabama excluded Harry Truman from its ballot in 1948 and Lyndon Johnson
from its ballot in 1964.  I am not aware of a federal law requiring a state
to place all major party candidates on its ballot.

The NPV Compact states:

Prior to the time set by law for the meeting and voting by the presidential
electors, the chief election official of each member state shall determine
the number of votes for each presidential slate in each State of the United
States and in the District of Columbia in which votes have been cast in a
statewide popular election and shall add such votes together to produce a
“national popular vote total” for each presidential slate.

* * *
At least six days before the day fixed by law for the meeting and voting by
the presidential electors, 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.

If a state were to keep a major candidate off the ballot, would there be a
basis in the NPV for the elections officials in other states from putting
more than zero in that candidate's "votes" column for that exclusionary
state?  If Texas had kept Hillary Clinton off the 2016 ballot, she would not
have received all or most of her 3.88 million votes there (depending on
whether write-in votes would have been tallied).  That could have eliminated
her national popular vote margin of 2.86 million votes.  If Florida had kept
her off the ballot, she would have lost all or most of her 4.50 million
votes there.

At present, Republicans control both houses in 31 state legislatures, and
Democrats control 18.  There are 34 states in which one party controls both
houses and the Governorship.  What would prevent any of those states from
excluding one of the major party candidates from the ballot and thereby
strongly influencing the outcome under the NPV?

Thank you.

Dan Meek

503-293-9021 

dan at meek.net <mailto:dan at meek.net>  

855-280-0488 fax 

On 9/7/2020 8:02 PM, John Koza wrote:

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  <mailto:law-election-bounces at department-lists.uci.edu>
<law-election-bounces at department-lists.uci.edu> On Behalf Of
sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com> 
Sent: Friday, July 24, 2020 7:39 AM
To: 'Rick Hasen'  <mailto:rhasen at law.uci.edu> <rhasen at law.uci.edu>;
'Election Law Listserv'  <mailto:law-election at uci.edu>
<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=ejour
nal_htmlemail_law:society:public:law:constitutional:law:ejournal_abstractlin
k> 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%20Electo
ral%20Count%20Act> 

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

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