[EL] Can North Dakota really do that?

Mon Mar 1 08:19:11 PST 2021

IMO the best way to answer whether or not a “national popular vote” actually exists is to think about it the same way as college football’s national champion in the pre-playoff era (sorry if I’m about to lose any non-college football fans). Yeah, there kind of was a national champion, in most cases there was a clear consensus but not always and there were some serious disputes and split champions (there were 4 teams named national champion in 1919 and 3 in 1964, according to the NCAA <https://www.ncaa.com/history/football/fbs> ) but really didn’t matter because it’s just college football (I am now gritting my teeth over the Nebraska/Oregon injustice <https://bleacherreport.com/articles/1895175-bcs-years-in-review-2001-nebraska-fiasco-rocks-college-football>  of ’01) and ultimately not that important – if two or even more schools want to claim the national title and have rings made and t-shirts printed up, it doesn’t really make much difference except for a handful of die-hard fanatics. Similarly the “national popular vote” is a thing – it’s reported by the news, even – but it’s not a legally/formally important thing of any weight – it really doesn’t matter whether Kennedy or Nixon won the popular vote in 1960, for example, because Kennedy clearly won the Electoral College, which is what matters. 

The NPV compact seeks and purports to alter this, of course, but as North Dakota is demonstrating, because the compact relies on both full and uniform cooperation of non-member states without the ability to compel that cooperation and uniformity, there may be problems that arise of significantly more importance than whether Miami or Washington won the national title following the ’91 season.

Sean Parnell

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of John Tanner
Sent: Friday, February 26, 2021 7:10 PM
To: Richard Winger <richardwinger at yahoo.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Can North Dakota really do that?

Of course there’s a sta

Rustic kept total popular vote for the entire nation.   A formal total popular vote total to trigger such an important action is a different thing altogether, especially, arguably, when it does not reflect the actual vote of the entire country. 

Sent from my iPhone

On Feb 26, 2021, at 5:52 PM, Richard Winger <richardwinger at yahoo.com <mailto:richardwinger at yahoo.com> > wrote:

The Federal Election Commission calculates the national popular vote after every presidential election.  It must do so, to determine which parties have polled at least 5% for president and therefore become eligible for general election presidential campaign funding.  The FEC publishes the results in a book, which always has the title "Federal Elections (year)."  So federal law recognizes that there is such a thing as the national popular vote.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

On Friday, February 26, 2021, 12:07:14 PM PST, John Tanner <john.k.tanner at gmail.com <mailto:john.k.tanner at gmail.com> > wrote: 

An alternative interpretation would be that there simply is no national popular vote, and that states are absolved from casting their electoral votes in accord with it.   This is the sort of issue that really should be spelled out clearly  in advance

Sent from my iPhone

On Feb 26, 2021, at 2:49 PM, Charles H Stewart <cstewart at mit.edu <mailto:cstewart at mit.edu> > wrote:

Here’s the full bill:  https://www.legis.nd.gov/assembly/67-2021/documents/21-0828-02000.pdf

From: Law-election <law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> > On Behalf Of Adav Noti
Sent: Friday, February 26, 2021 2:36 PM
To: Stephanie Singer <sfsinger at campaignscientific.com <mailto:sfsinger at campaignscientific.com> >; Election Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu> >
Subject: Re: [EL] Can North Dakota really do that?

Section 4 of the bill provides that the ban on disclosing presidential vote totals takes effect only upon adoption of the popular vote interstate compact, so it seems unlikely to be tested anytime soon.

Adav Noti
Senior Director, Trial Litigation & Chief of Staff

Campaign Legal Center
1101 14th Street NW, Washington, DC 20005

202.736.2203 | @AdavNoti <https://twitter.com/AdavNoti> 

 <mailto:anoti at campaignlegalcenter.org> anoti at campaignlegalcenter.org

From: Law-election <law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> > On Behalf Of Stephanie Singer
Sent: Friday, February 26, 2021 2:16 PM
To: Election Law Listserv <law-election at uci.edu <mailto:law-election at uci.edu> >
Subject: [EL] Can North Dakota really do that?

A bill <http://www.legis.nd.gov/assembly/67-2021/documents/21-0828-02000.pdf>  just passed the ND Senate requiring

1.	a public officer, employee, or contractor of this state or of a political subdivision of 
2.	this state may not release to the public the number of votes cast in the general election for the 
3.	office of the president of the United States until after the times set by law for the meetings and 
4.	votes of the presidential electors in all states. 

Can ND really do that? My opinion is that election results should be easily and timely available to the public, but what does the law have to say?

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