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

Thu Sep 10 22:29:07 PDT 2020

A single state with a Republican governor and legislature decided the 2000 and 2004 election.  

More importantly, if one major party starts taking another major party off the ballot, the country has a lot bigger problems than the debate between winner-take-all and national popular vote.  

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

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

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

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

From: Dan Meek <dan at meek.net> 
Sent: Thursday, September 10, 2020 10:20 PM
To: John Koza <john at johnkoza.com>; 'David Lublin' <dlublin at american.edu>
Cc: 'Election Law' <law-election at department-lists.uci.edu>
Subject: Re: [EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

Under my scenario for the NPV, the partisan legislature of a single large state (or a couple of smaller states) could reverse the outcome of the Presidential election by excluding from that state's ballot the candidate of the other party.  My example was Texas excluding Hillary Clinton and thus reducing her national popular vote total by 3.88 million--more than enough to make Trump the NPV winner.

Dr. Koza asks that this "scary scenario" be applied to the current system.  He says that action by the Republican-controlled legislatures of 7 large states to exclude Barack Obama from their ballots could together have reversed the outcome of the 2012 Electoral College.

First, my NPV scenario depends upon action by one state legislature that is consistent with its partisan bent:  a Republican legislature excludes a Democratic candidate.  Dr. Koza's "current system" scenario requires that several Republican legislatures (Florida, North Carolina, Virginia, Pennsylvania, Ohio, Michigan and Wisconsin) all exclude Barack Obama from the 2012 ballot.  I believe it is far more likely for a single legislature to exclude the candidate of the other party than for 7 states to do so simultaneously.

Second, my NPV scenario involves one state taking action that does not countermand the voters of that state.  If the Texas legislature had excluded Hillary Clinton from the 2016 ballot, the will of the voters of Texas would not have been countermanded.  But Dr. Koza's "current system" scenario requires that the legislatures of 7 large states each take action that directly countermands the voters of each of those states (because they voted for Obama).  Which scenario seems realistic?

My fear is that, under the NPV, a state legislature can effectively countermand the voters of other states by excluding the less popular candidate from the state ballot.  If Texas had excluded Hillary Clinton from the ballot under NPV, that would have changed (from Clinton to Trump) the electoral votes of  California, Colorado, Connecticut, DC, Delaware, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington (considering only those states that have signed up for the NPV compact so far).  That amounts to 191 electoral votes changed.  But the electoral votes of Texas would not have changed.

Dan Meek

503-293-9021 

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

855-280-0488 fax 

On 9/8/2020 5:26 PM, John Koza wrote:

David Lublin and Dan Meek:

Yes, it would indeed to “nice to know how the courts would rule” if a major-party candidate for President were kept off a state’s ballot by the opposing party’s governor and legislature.  

A possible indication comes from Griffin v. Padilla (408 F. Supp. 3d 1169 - Dist. Court, ED California 2019), in which a federal district court gave 3 independent reasons for issuing a preliminary injunction on October 2, 2019 against California’s AB27 – a law that would have kept Trump off the 2020 California primary ballot if he did not release his income tax returns –  saying that AB27

*	violates the Presidential Qualifications Clause contained in Article II of the United States Constitution
*	deprives Plaintiffs of their rights to associate and/or to access the ballot, as guaranteed by the First Amendment of the Constitution
*	violates the Constitution's Equal Protection Clause as set forth in the Fourteenth Amendment   

As it happened, this federal case was mooted in midstream when the California Supreme Court found AB27 unconstitutional on state constitutional grounds on November 21, 2019. 

Footnote 4 of the U.S. Supreme Court decision in Chiafalo v. Washington possibly provides another hint:

“Checks on a State’s power to appoint electors, or to impose conditions on an appointment, can theoretically come from anywhere in the Constitution.  A State, for example, cannot select its electors in a way that violates the Equal Protection Clause.  And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, §1, cl. 5.”

Dr. John R. Koza, Chair

National Popular Vote

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

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

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

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

From: David Lublin  <mailto:dlublin at american.edu> <dlublin at american.edu> 
Sent: Tuesday, September 8, 2020 10:09 AM
To: John Koza  <mailto:john at johnkoza.com> <john at johnkoza.com>
Cc: Dan Meek  <mailto:dan at meek.net> <dan at meek.net>; Election Law  <mailto:law-election at department-lists.uci.edu> <law-election at department-lists.uci.edu>
Subject: Re: [EL] Derek Mueller on Bush v. Gore and the Electoral Count Act

John,

That's a good point about the problem being legally the same.

I think the crucial difference is one that is psychological. NPV States are more likely to engage in redirecting their electors if the state voted one way and the country another, especially if there is widespread mistrust by them or they can use it to justify their actions. Today, we have tons of mistrust and it is actively fanned. In contrast, legislators are more likely to have somewhat more confidence in their own state's counting. They know the people, they got elected under the system, they may even help arrange the rules under which the system operates. It makes it more difficult to overturn in practice even if not legally because they are questioning the judgement of local and state people who they know and may want support.

There is also the question of the impact on the courts of the legally similar decisions of a legislature (1) directing electors to vote for the candidate who won the state in place of the one who won the NPV as opposed to (2) directing them to vote against their state's decision (either due to NPV Compact or because they don't like the outcome). I imagine it wouldn't be hard for a good lawyer to differentiate between the two cases. Even if that failed, the pressure on the court would seemingly be quite different in each circumstance. Placing the same legal decision in different lights can have a big impact without impugning the integrity of any of the members of the judiciary.

Either way, it sure would be nice to know how the courts would rule in such a circumstance before it happened. But I just don't know how that could occur. I say all this not as a particular defense of the Electoral College but in the spirit of not wanting matters to go really bad if we make a change.

Best regards,

David Lublin
Professor and Chair

Department of Government
School of Public Affairs
American University
4400 Massachusetts Ave.
Washington, D.C. 20016
http://davidlublin.com/

On Tue, Sep 8, 2020 at 12:21 PM John Koza <john at johnkoza.com <mailto:john at johnkoza.com> > wrote:

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-seek-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-seek-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: john at johnkoza.com <mailto:john at johnkoza.com> 

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

URL: www.NationalPopularVote.com <http://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 Dan Meek
Sent: Tuesday, September 8, 2020 1:29 AM
To: law-election at department-lists.uci.edu <mailto: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 Certificates <https://www.archives.gov/electoral-college/2016>  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 Ohio State Law Journal article <https://moritzlaw.osu.edu/oslj/2020/08/05/restraining-judicial-application-of-the-safe-harbor-provision-in-the-electoral-count-act/> , 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: www.NationalPopularVote.com <http://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=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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