OP-ED | Voting Requires Vigilance. Popular Isn’t Always Prudent
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.