OP-ED | Voting Requires Vigilance. Popular Isn’t Always Prudent
by Luther Weeks | Jan 21, 2013 8:16pm
(4) Comments | Commenting has expired
Posted to: Opinion
One third of Americans vote on machines, without the paper ballots we use in Connecticut. Our president is chosen based on faith in those unverifiable machines, vote accounting, and unequal enfranchisement in 50 independent states and the District of Columbia.
In 2000, we witnessed the precarious underpinnings of this state-by-state voting system combined with the flawed mechanism of the 12th Amendment and the Electoral Accounting Act. The Supreme Court ruled votes could not be recounted in Florida, because even that single state did not have uniform recount procedures. What could possibly make this system riskier?
The National Popular Vote Compact now being considered in states, including Connecticut, would have such states award their electoral votes to a purported national popular vote winner. The Compact would take effect once enough states signed on, equaling more than one-half the Electoral College. Then the President elected would be the one with the most purported popular votes. Sounds good and fair at first glance. Looking at the touted benefits and none of the risks many legislators, advocates, and media influence the public to make the Compact popular in some polls. Popular is not always prudent. Voting requires vigilance.
The Compact, cobbled on an already precarious system, would exacerbate its flaws, adding additional risks. Currently errors, voter suppression, and fraud can only sway the result in the few swing states. With the Compact errors, suppression, and fraud in every state would count toward the popular vote total.
Compact supporters overlook and proponents befog the reality that there would be no official national popular vote total available in time for states to choose their electors. The only official popular vote total is the sum of the Certificates of Attainment sent by each state to the national Archivist. They cannot be used for choosing electors, since certificates are not required to be sent until seven days after electors are chosen and are not required to arrive in Washington until fifteen days after the electors must be chosen. Supreme Court decisions in 2000 and 1876 stress that these dates must be strictly followed.
Even if the totals could be obtained in time from each state, they would not be audited and could not be recounted. Compact proponents obfuscate this by describing how some states routinely perform audits or recounts. They conveniently ignore that about one-third of the states do not have audits and recounts; many voting machines cannot be audited; state recounts are based on close-vote margins within a state, so even in those states, recounts would not be triggered by a close national vote. Just as critical, there would be insufficient time for recounts or audits given the strict Constitutional deadlines. The Supreme Court would likely reject any recount going beyond state borders, using the same reasoning used to reject the 2000 Florida recount, as insufficiently uniform.
Additional legal challenges and maneuvers under the Compact would also be available for partisans bent on sending any reasonably close election to the Supreme Court or Congress. States not signing the Compact could delay certifying and transmitting results until the latest deadline. Partisans could dispute results in their states or sue their Secretary of State for using uncertified results from other states, delaying reporting or negating the state’s Electoral College vote.
Nothing is available, but legal challenges, even in Compact states, to deter a future partisan Secretary of State from failing to follow the Compact.
Supporters and opponents debate other contentions for and against the Compact, most of which are subjective and speculative. e.g. Which is more ideal, the current Federal system or the popular vote? Would small states or large states benefit more from the Compact? Where would candidates campaign and join with PACs in media buys? How equal would every voter actually be, given the state-by-state system of voter enfranchisement, disenfranchisement, suppression, and registration?
An accurate, fair, and credible popular vote requires a uniform, workable national voting system we can trust. That is, a system with uniform enfranchisement, paper ballots, effective audits, and national recounts, enforceable and provably enforced as a prerequisite to a considering a national popular vote.
Luther Weeks is executive director of CTVotersCount.
Tags: Luther Weeks, National Popular Vote, compact, voting
(4) Comments
posted by: mvymvy | January 22, 2013 1:57pm
The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, coercion, intimidation, confusion, and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.
National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.
The closest popular-vote election in American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.
For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election—and, in popular-vote terms, forty times closer than 2000 itself.
Which system offers vote suppressors or fraudulent voters a better shot at success for a smaller effort?
posted by: mvymvy | January 22, 2013 2:39pm
Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment (with their dates of submission) for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at
http://www.archives.gov/federal-register/electoral-college/2008/certificates-of-ascertainment.html
The U.S. Constitution (Article II, section 1, clause 4) provides:
“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[Spelling as per original]
The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December.
With both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.
posted by: mvymvy | January 22, 2013 9:37pm
The current presidential election system makes a repeat of 2000 more likely, not less likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It’s much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we’d had National Popular Vote in 2000, a recount in Florida would not have been an issue.
Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.
The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.
No recount would have been warranted in any of the nation’s 57 previous presidential elections if the outcome had been based on the nationwide count.
A federal recount law would be highly beneficial to the operation of the current state-by-state winner-take-all method for awarding electoral votes because of the high frequency of disputes in presidential elections under the current system (five litigated state counts in a mere 57 presidential elections). Such a law would also be potentially beneficial under the national popular vote approach, even though the probability of recounts would be much lower under a national popular vote because there would be a single large national pool of votes (instead of 51 separate pools).
Congress has authority over the count in presidential elections as well as authority over the schedule of presidential elections.
Congress should use this authority to enact a federal recount law that would give presidential candidates a right to obtain a recount that would be completed prior to the uniform national date for the meeting of the Electoral College.
The federal recount law proposed by National Popular Vote would require states to accelerate their initial count and conduct a full recount upon the request of any presidential candidate willing to pay the state, in advance, for the cost of such requests.
posted by: CitizenCT | January 23, 2013 8:20am
Mr. Weeks, your analysis is spot on. Additionally, a popular vote system would make small states like CT completely irrelevant forever. The “battleground states” each presidential election would be California and Texas where democrats and republican would work to get out the votes from their bases. CT population isn’t enough to move the needle. CT’s best chance of being heard on the national stage is through the electoral college and would be further enhanced if someone other than a Democrat candidate was given careful consideration.