9.14 Myths about Lack of an Official National Count for Presidential Elections and Secret Elections

It is sometimes asserted that there is no official national count of the national popular vote for President and, therefore, the National Popular Vote compact would be impossible to implement.

In his testimony on February 19, 2010, to the Alaska Senate Judiciary Committee, Professor Robert Hardaway of the University of Denver Sturm College of Law said:

“Under the Koza scheme, who would be the national official who would decide what the popular vote is?” [Emphasis added]

The answer is the same under both the current system and under the National Popular Vote compact.

Existing federal law (section 6 of Title 3 of the United States Code) requires that an official count of the popular vote for President from each state be certified and sent to various federal officials in the form of a “Certificate of Ascertainment.”

“It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast….” [Emphasis added]

Figure 9.5 shows the Certificate of Ascertainment from Oregon for the 2012 presidential election.

Figure 9.5 Oregon’s 2012 Certificate of Ascertainment

Appendices E, F, G, H, and I show the 2004 Certificate of Ascertainments for Minnesota, Maine, Nebraska, New York, and Mississippi, respectively.

The certificates of ascertainment from all 50 states and the District of Columbia are available on-line for the 2000, 2004, 2008, and 2012 presidential elections.[368]

The national popular vote total for each presidential candidate can be obtained by adding together the popular vote counts from the Certificates of Ascertainment from all 50 states and the District of Columbia.

In fact, the results of this arithmetic process of adding up 51 numbers for each candidate may be viewed on the National Archives and Records Administration’s web page entitled “2012 Presidential Election—Popular Vote Totals.”[369]

Tara Ross says that supporters of the National Popular Vote

“pretend it is possible to come up with one national vote total.” [Emphasis added]

Why does Ross think that the National Archives and Records Administration is “pretending” when it presents a spreadsheet showing the number of popular votes cast for each presidential candidate as certified by each state’s Certificate of Ascertainment?

In an article entitled “Lawmakers Seek to Change Presidential Elections to Make Them More Risky, Reduce Confidence,” Luther Weeks of Connecticut says:

“There is no official national popular vote number complied and certified nationally that can be used to officially and accurately determine the winner in any reasonably close election.”[370] [Emphasis added]

Of course, the vote counts recorded on the states’ Certificates of Ascertainment are used under the current system to award electoral votes. Moreover, these vote counts are considered “official” enough and “accurate” enough to elect the President of the United States under the current system.

In particular, the 537-vote lead (out of 5,963,110 votes) recorded on Florida’s Certificate of Ascertainment in 2000 was considered “official” enough and “accurate” enough to elect a President. One wonders why Weeks thinks that these state-produced Certificates of Ascertainment (and the legal process behind the “final determinations” reported in these certificates) would suddenly become “more risky” if used to elect a President under the National Popular Vote compact. Why would they suddenly “reduce confidence?”

Footnotes

It has been suggested on an elections blog that a state might pass a law making its election returns secret at the precinct, local, county, and state levels:

“Couldn’t [a state] decide to turn its popular vote totals into a state secret, thereby ruining the pact? What’s to stop a state from choosing to count votes behind closed doors?”[371]

Existing federal law (section 6 of Title 3 of the United States Code) requires each state to certify the number of popular votes cast for each presidential elector in a public document, called a “Certificate of Ascertainment,” prior to the mid-December meeting of the Electoral College.

“It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and 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 under the seal of the State; and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made; and the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration.” [Emphasis added]

Figure 9.5 shows Oregon’s 2012 Certificate of Ascertainment. Appendices E, F, G, H, and I show the Certificates of Ascertainment from Minnesota, Maine, Nebraska, New York, and Mississippi. Figure 6.1 shows Vermont’s 2008 Certificate of Ascertainment. The certificates of ascertainment from all 50 states and the District of Columbia are available on-line for the 2000, 2004, and 2008 elections.[372]

Professor Norman R. Williams of Willamette University dismisses the federal law by suggesting that presidential elections could nonetheless be conducted in secret.

“States could comply with that requirement without making their actual vote totals public, such as by releasing the vote totals only to the candidates on the condition that the totals are kept confidential until after the Electoral College meets. Such selective release would allow the losing candidate to pursue a judicial election contest, which itself could be kept closed to the public to ensure the vote total’s confidentiality, but it would frustrate the NPVC by keeping other states from knowing the official vote tally.”[373] [Emphasis added]

Professor Williams’ proposal for secret elections, secret judicial hearings, and non-disclosure agreements assumes that there is a state in which the voters have such a strong attachment to the current winner-take-all rule that they would be willing to abandon the long-standing tradition of having elections closely monitored by the media, civic groups, and challengers and observers representing the parties, candidates, and ballot propositions that happen to be on the ballot at the same time as the presidential election.[374]

Professor Williams’ proposal for conducting secret elections is a parlor game devoid of any connection to real-world political reality.

Footnotes

A posting on Real Clear Politics stated:

“One thing worth noting is that the true popular vote is rarely even tallied. For example, I remember hearing several times that California did not count absentee ballots because the number of absentee ballots was significantly less than the amount by which the Democratic candidate was leading. Since absentee ballots typically include military votes, the gap might have narrowed, even if wasn't even mathematically possible for the ballots to flip the state. In that case, it's possible that, as an example, Al Gore may not have won the actual popular vote. I believe there were roughly million absentee ballots not counted in California, and Gore was leading by about 500,000 votes. While that was nowhere near enough to flip the state, it might have changed the popular vote total.”[375] [Emphasis added]

Depending on a voter’s location, a typical ballot in California contains votes for between 50 and 100 individual candidates and ballot propositions, including:

• members of Congress,
• members of the state legislature,
• county offices,
• judges,
• statewide ballot propositions,
• city offices,
• school boards,
• community college boards,
• public hospital boards, and
• local ballot propositions.

There were 10,965,856 votes cast in California in the November 2000 election.

Although no group of 1,000,000 absentee ballots could have eliminated Al Gore’s 1,293,774-vote lead over George W. Bush in the presidential race in California, these same 1,000,000 ballots determined the outcome of numerous other races on the ballot in November 2000.

Regardless of whether there is any doubt as to which presidential candidate received the most popular votes in California, 100% of the ballots must be counted in order to determine the outcome of the numerous other offices and propositions on the ballot.

This urban legend is absurd on its face.

Footnotes