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

Tue Sep 8 10:53:36 PDT 2020

With most people/groups I’d need to apologize for getting too deep into the weeds in an explanation of Certificates of Ascertainment as it relates to NPV, but I can probably dispense with that here. For those of you who don’t follow this particular topic, it’s probably worth noting that I and the folks at NPV have been having this dispute for about six years now.

The basic issue here is: If NPV goes into effect, where do you get the vote totals to determine the winner? I assume we can all agree that relying on the AP feed or Realprezidentalvotcount.ru aren’t really acceptable – you need official, accurate, and timely vote counts. Where do those vote counts come from?

Contrary to Dr. Koza’s assertions below, the Certificate of Ascertainment has generally been cited by NPV as the source of the needed vote counts. To keep things brief, I’ll simply note that the book Every Vote Equal, which likely graces the bookshelves of a good number of the people on the list, includes the following “myth” about NPV and the response:

9.14.1 Myth: There is no official count of the national popular vote.

Quick Answer: Current federal law provides for an official count of the popular vote for President from each state in the form of a public “Certificate of Ascertainment.”

This is on page 580 of the fourth edition. 

Elsewhere in the book it does mention the certified vote totals that each state produces for its own purposes (which also includes Congressional elections and statewide/local elections in most states as well), but it’s pretty obvious from the book that the Certificates of Ascertainment are intended to be the source of vote totals, with state certified results being a backup.  The statements of numerous NPV lobbyists/consultants in committee hearings over the years have also made plain that the Certificate of Ascertainment is the intended source of vote totals. If anyone is really interested in this they can check out the transcript of the February 20, 2014 hearing in Connecticut, https://www.cga.ct.gov/2014/gaedata/chr/2014GAE00224-R001300-CHR.htm, and find this statement from Laura Brod of NPV:

SENATOR MCLACHLAN: … What is the last date for the vote totals to be available for the compact to work?

LAURA BROD: Well, the last date for the vote totals to be available under current federal law, which our compact doesn't change, would be the certificate of ascertainment and the final determination being completed before the Safe Harbor Date six days before the Electoral College meets. Our bill doesn't change that.

SENATOR MCLACHLAN: Another point about vote totals and deadlines. You mentioned that, you know, we're covered, that the statutes guarantee the vote totals will be available.

Representative, are you aware that five of the seven most popular states in the country don't have deadlines in their state statute? Texas, Florida, Ohio, Pennsylvania and New York don't have deadlines in their state statutes.

LAURA BROD: Mr. Chairman and Senator McLachlan, the deadline, the final fail safe deadline is the deadline required by federal code, which requires the final determination from a state, whether they have a deadline or not to be completed on the, before the Safe Harbor Date.

So whether a state has a specific deadline of 21 days, 10 days, 30 days, it doesn't much matter in the full total because the final determination has to occur before the Safe Harbor Date meets. So you have the state deadlines, the state laws and then the federal fail safe, which has been supported by case law.

Barry Fadem, whom if memory serves correct is the president of National Popular Vote, Inc., testified there as well, and while the transcript is a little disjointed – it was at the end of a long day and the questions being posed to us at this point (I spoke right before Barry) were a little sloppy – but it seems clear to me at least that it was the position of NPV that the Certificates of Ascertainment would be publicly available well before either the Safe Harbor deadline or the meeting of the Electoral College:

SENATOR MUSTO: Okay. Right. So I just wanted to clarify that. The certificate of assessment, state law --

BARRY FADEM: The certificate of ascertainment?

SENATOR MUSTO: Ascertainment, excuse me. The prior speaker mentioned there was no law that made them public. Is that true?

BARRY FADEM: No, that's not true.

SENATOR MUSTO: Okay.

BARRY FADEM: Under state law, as soon as the secretary of state certifies, that's an official state document, so that is immediately under any state law, a public record and once the certificates of ascertainment, and by the way, previous speaker made reference to no one here would go look at them.

Well, when I was in Washington, D. C, yes, I took my wife and I took her down and we looked at the certificates of ascertainment. They're very colorful because they have the state seal on them. It's quite an impressive document. 

But once the governor, (inaudible)the governor, affixes his or her signature to that document, it's a public document, and certainly under the laws of the state, I don't even know what the question was. Would it be under federal law?

But to make a statement that somehow these are not public documents immediately upon execution, I think that would be true under any state law in the country. 

So the thought that somehow the official documents would not be made public…

SENATOR MUSTO: And the other problem is that, whatever it was, I forgot. That was his concern was that they wouldn't be available, and the certificates of ascertainment, assuming they're accurate, and again, I mean, if they're not accurate, then I'm not sure how the Electoral College even plays out in itself.

BARRY FADEM: Correct. And that's why the certificates of ascertainment under the federal law, in addition to state, every state having a law that requires certification far in advance of the Safe Harbor Date leads us to the vote count issue. It's really not, it doubtfully is an issue.

(Personal note: the Connecticut hearings were IMO by far the best of any state, the committee took time to really learn the details and ask sharp questions of all of us. If anyone here knows former Sen. Anthony Musto, please give him my regards).

I’m sure I’ve bored most of you to tears with this, but a few quick responses to my five alleged “misstatements”:

1.	Dr. Koza is correct that the compact does not specify the safe harbor deadline for calculating the vote. I don’t believe I stated that it does. 
2.	 While the compact itself does not specify the Certificate of Ascertainment as the “official” source, it’s clear from the book and NPV’s various statements over the years that the assumption has been that the Certificate of Ascertainment would be the official source. Occasionally backup sources are suggested as well, such as certified results that in most states are provided by the Secretary of State. There are serious problems with this as well, however – New York certified its presidential election results on December 29 in 2012, and I have a vague recollection that California in 2004 or 2008 also finalized their state totals after the Electoral College met, but I have not been able to track down and confirm that. The point is, there’s nothing requiring states to finalize their vote counts prior to the meeting of the Electoral College. Apparently the next fallback is to gather the data directly from county election sites, but this misses the fact that if the state hasn’t yet certified its final election results, it’s probably because there’s a problem somewhere – a recount, litigation, or its just taking a long, long time to finalize the counting. And of course that seems fraught with the possibility of error. After that you’re basically at Realprezidentalvotcount.ru…
3.	It’s certainly true that states may have reached their final determination before the Governor signed the document, which could be met by the Secretary of State having certified final election results. Of course, they also may not have (see: New York, 2012). Because NPV has placed so much stock in the Certificates of Ascertainment being available by either the Safe Harbor deadline or the date of the meeting of the Electoral College, my statement was in regard to whether or not states had submitted their certificate by the deadline. 
4.	This is indeed an error on my part, though a bigger one on NPV’s I think. I have been assuming for quite some time that it was the original (as opposed to the six “duplicate-original” copies) Certificate of Ascertainment that NPV intended to obtain the vote totals from. I assumed this because the original sent to the National Archives has at least has a reasonable chance of being publicly available from most states prior to both the safe harbor deadline and the meeting of the Electoral College – after reviewing them for accuracy it is posted online for all to see. If I recall correctly they started appearing on the National Archives’ web site in late November in 2016, and continued to be added through the month of December. For most but not all states, they were indeed posted in plenty of time to be used for NPV’s purposes.

I did not comprehend that the one copy of the Certificate of Ascertainment that is most likely to be publicly available before  is “irrelevant” according to NPV (that’s from a Koza memo in 2014 to Connecticut legislators). I am learning now that the six duplicate-originals are supposed to be used to get the vote totals. Unfortunately, NPV has erred grievously here – those six copies are generally not available to the public and they are not sent to the electors ahead of time. They sit around in a file cabinet or some other appropriate place in the governor’s office (or perhaps the Secretary of State or some other official’s office) and are delivered to the electors when they gather to cast their votes. I actually have been in contact with several states in the last week on this very point, and none of them send them out ahead of time. Most told me that they are not available for public inspection, a few told me that someone could probably FOIA them if they wanted, and one state said it was available to the public ahead of the meeting of the Electoral College. So far I’ve heard from 13 states. Those six aren’t really available right after the Electoral College meets either – they’re attached to the Certificate of Vote and sent to various officials, including the President of the Senate. Basically, in most states there’s not much opportunity for the public to get a look at those six copies at any time that would be helpful to the operation of NPV 

So yes, I have been in error on this particular point, because access to the six duplicate-originals is far, far less likely than the original sent to the National Archives, and I just assumed NPV would have chosen the copy sent to the National Archives. My bad. 

5.	Hence my use of the term “not too many people” to describe the number of people who accept the Safe Harbor deadline as a hard “drop dead” date . Also I’d have thought it was implied that in my statement that a couple of federal judges bought the argument, given that I was citing Derek’s paper which documents those decisions. As for nobody at NPV opining on the 2016 decisions, fair enough, though I didn’t say anybody from there had – I said the people at NPV seemed to generally share the view that those rulings were premised on. For example, here’s the statement of an NPV lobbyist and/or consultant earlier this year when asked about the availability of vote counts from other states that are not members of the compact:

“…states are required by a certain period of time to report… their certificates of ascertainment to the federal government and those certificates are opened on the counting day in front of congress. That procedure is set up… you get into the Bush v. Gore decision… it came out of the Florida election and they said the certificates of ascertainment are required to be filed six days before the meeting of the electoral college and it reports the state’s vote and it also reports the awarding of the electors…”

I’ll stop now, but suffice it to say I feel pretty comfortable with the following positions:

1.	NPV needs official, accurate, and timely vote counts from all 50 states and DC to operate.
2.	For years, NPV has almost exclusively answered  “Certificate of Ascertainment” to the question “Where do you get vote totals from?”
3.	This answer is based on NPV’s faulty understanding of the relevant Federal law, Bush v. Gore, and how states actually handle their seven Certificates of Ascertainment.
4.	For the reasons I’ve discussed at length, reliance on Certificates of Ascertainment for vote totals is likely to be problematic.
5.	There are alternatives to Certificates of Ascertainment, but they have similar problems (state certified vote totals may not be available if a state is still conducting its count, and county results have the same problem) or can be filed under “This way lies madness” (realprezidentalvotcount.ru).

Sean

From: John Koza <john at johnkoza.com> 
Sent: Monday, September 7, 2020 11:02 PM
To: law-election at uci.edu
Cc: sean at impactpolicymanagement.com; rhasen at law.uci.edu
Subject: RE: [EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

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 <mailto: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' <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >; 'Election Law Listserv' <law-election at uci.edu <mailto: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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