John Koza has posted this draft on SSRN. Here is the abstract:

This paper is in response to a paper entitled “The National Popular Vote (NPV) Proposal for U.S. Presidential Elections Undermines Election Integrity” by Ronald Rivest and Philip B. Stark (the “RS” paper). 

The RS paper’s claim to have discovered an “unchallengeable” way to thwart the operation of the National Popular Vote Compact is demonstrably false. 

The RS paper claims that there would be “no way for any party to push back on any state’s reported tallies” under NPV—even if “state-level results are untrustworthy or absurd” or a state reported “a billion votes for one candidate.” In fact, NPV would operate inside the same legal framework and judicial system as the current system of electing the President (which provides five avenues for challenging vote tallies).

The RS paper’s claim that “NPV eliminates critical bulkheads that help assure the integrity of U.S. Presidential elections” is based on an inaccurate and exaggerated picture of the current state of affairs concerning post-election audits. In fact, the type of post-election audit championed by the RS authors was used to audit the presidential race in only two of the battleground states and none of the outcome-determinative states in 2024. Because of three additional flaws in the apples-to-oranges comparison conducted by the RS paper, the RS paper fails to show that NPV “undermines” “critical bulkheads” of election security. 

None of the arguments against the NPV Compact in the RS paper withstand scrutiny. None demonstrate that the Compact would undermine election integrity in any way. To the extent our elections are legitimate, accurate, and trustworthy today (and they are), they would remain equally legitimate, accurate, and trustworthy under the NPV Compact. 

AP:

For decades Republicans in GOP-dominated Nebraska have tried and failed to upend the state’s unusual method of splitting its presidential electoral votes by congressional district. Now, with yet another winner-take-all bill likely to fail, they are proposing to put it to a vote of the people.

The proposed referendum is billed as a backup plan to the winner-take-all measure, introduced at the request of Republican Gov. Jim Pillen, which appears to have little chance of surviving a promised filibuster. If it fails, Sen. Myron Dorn says he’ll seek to pull the referendum measure from committee in the hopes that voters will approve the change in the 2026 general election.

Republicans have tried to reverse the split vote system since the Legislature adopted it nearly 35 years ago, with most saying Nebraska should mirror the 48 states that use a winner-take-all system under which all electoral votes go to a single candidate. Maine is the only other state that splits its electoral votes.

Mark Haidar and Aiden Calvelli in The Hill.

This memo from the Office of Legal Counsel was released January 17, 2024, but was written February 27, 2020 (i.e., late in the first Trump administration and well before Election Day). There is an editor’s note that the Electoral Count Reform Act eliminated references to “registered mail.” But despite the fact that much of the memo has been superseded by statute, the framing of the memo presents interesting observations about the role of the Archivist in relation to certificates of electors’ votes:

We conclude that federal law does require state officials to send their electoral certificates by USPS’s registered-mail service. The plain language of the statute requires the use of registered mail, and this interpretation is supported by the history of the statute, Congress’s decision to amend other statutory provisions, and the relevant judicial precedent. But the statute places no restrictions on the Archivist’s acceptance of the States’ certificates. Instead, it calls for him to request duplicate copies only if he does not “receive[]” a State’s vote certificates. 3 U.S.C. §§ 12, 13. The statute therefore does not require the Archivist to reject certificates sent by an unauthorized means. By refusing receipt, the Archivist would thwart the statutory scheme, which seeks to ensure that the States reliably transmit the certificates to the Archivist for the purpose of keeping the official records and, in the case of the certificates of the electors’ votes, as duplicates of the vote certificates sent to the President of the Senate.

Dan Greenberg: “Point: The Electoral College Protects Minority Views and Discourages Fraud.”

Rob Richie:  “Counterpoint: The Electoral College Must Be Reformed.”

Mark Haidar and Aidan Calvelli have posted this draft on SSRN (forthcoming, Election Law Journal). Here is the abstract:

Presidential elections are often close; that much is clear. But the standard ways of measuring the margins in these elections-the national popular vote and the Electoral College vote-paint incomplete, even misleading pictures of exactly how close they are. Due to the structure of the Electoral College, national votes don’t decide the presidency. And because of state winner-take-all rules for allocating electors, Electoral College counts often inflate the gap between candidates. Both measures fail to capture how election outcomes can turn on a small number of individual votes in a few key states. This Article presents a new metric that better assesses the closeness of presidential elections: the “Determinative Popular Vote” (DPV)-the minimum number of additional votes that could have altered the Electoral College outcome. We present the first comprehensively defined and historically complete analysis of this approach, calculating DPV for every election from 1836 to 2020. Our measure of closeness reveals that presidential elections are far closer than other metrics suggest. Our findings also provide new data to evaluate longstanding critiques of the Electoral College’s democratic legitimacy, including how it creates unequal voting power, allows for electoral inversions or contingent elections, and presents risks of election subversion. DPV is thus a tool for scholars, political analysts, and citizens alike to accurately measure the margin in our most consequential elections.

Roll Call:

Lingering ill will among House Republicans after another messy spending fight could complicate Speaker Mike Johnson’s bid to retain the House gavel — and potentially the Jan. 6 formalizing of Donald Trump’s election victory.

As president of the Senate, Vice President Kamala Harris would be the presiding officer during a joint session of Congress that day to complete the American presidential election process. It is a constitutional duty that essentially requires her to oversee the certification of her 2024 rival’s decisive victory.

To get to a swift and professional counting session, the House on Jan. 3 — or perhaps in the following two days — would need to elect a speaker, who would then administer the oath of office to the newly elected and reelected members. 

If a protracted speaker fight lasts beyond 1 p.m. on Jan. 6, congressional scholars agree there are procedural options that could help ensure the counting and certifying of Electoral College votes that day. But that could prove difficult following yet another span of GOP infighting over government funding and the debt ceiling that saw Speaker Mike Johnson battling rebellious conservatives. …

But even if a speaker is not elected in time for Jan. 6, multiple congressional and legal scholars told CQ Roll Call that the clerk – if both parties agree — could potentially swear in all House members because the Constitution grants the chamber exclusive authority to organize itself. 

While there is no precedent in U.S. history to guide House members through such a scenario, they likely have the authority to, as Smith put it, “make up a precedent.”

And, should that be necessary, he said one option would be to reach an agreement under which “the clerk could organize the House and even allow for the Jan. 6 count to proceed — speaker or no speaker.”

Derek Muller, a professor at the University of Notre Dame Law School, said the Constitution gives the House the authority to organize itself, which would give members enough legal wiggle room to find a way out of what would be an unprecedented situation.

“They could elect an acting or temporary speaker, with a provision that the entire House would revisit the matter of a permanent speaker in X-number of days,” Muller said….

Justin Levitt, a law professor at Loyola Marymount University who served as senior policy adviser for democracy and voting rights in the Biden White House, said he thinks the joint session to count the electoral votes likely could proceed without a speaker.

The speaker has two formal roles on Jan. 6, Levitt said: selecting the two tellers who read out the votes and overseeing the House during any debates over objections to the Electoral College votes. 

Levitt said the teller portion could likely be handled by majority vote or unanimous consent and objections would be unlikely under the new, higher threshold to sustain them established by the 2022 overhaul to the law governing the counting of presidential electoral votes. Dubbed the Electoral Count Reform Act, the law was enacted as part of a bipartisan reaction to the Jan. 6, 2021, attack on the Capitol and laid out specific procedures for presidential election certification, challenges and more. 

Levitt also said that although the regular House cannot do business without a speaker, it is a different body — constitutionally — when it is part of a joint session to count the votes.

“I don’t think, as a constitutional matter, there is an impediment to members of the body proceeding with the electoral count if the body can’t do any work on its own without electing a speaker,” Levitt said….

Jerry Goldfeder NY Daily News oped:

It hasn’t been reported how Donald Trump celebrated his official election this week, but I have an idea how he should mark the occasion. He should take a leaf out of President Richard Nixon’s playbook and do the unexpected. Let me explain.

In 1971, way before he was mired in the Watergate corruption that brought him down, Nixon, a life-long anti-Communist, declared that he would visit the People’s Republic of China. No announcement could have been more dramatic and counter-intuitive. After all, he built his career — as a member of Congress, United States senator, vice president and president — denouncing the “Communist menace.” For him to decide to break bread with Chinese Communists was, to say the least, a turnabout that startled Americans. 

So, now, after years of deriding the United States Constitution, the judicial process, and the rule of law in general, Trump could offer up his own 180-turnabout moment by embracing one of the most important democratic reforms in American history — a constitutional amendment to abolish the Electoral College.

One would expect a liberal member of Congress to urge this change — and, in fact, three U.S. Democratic senators last week introduced such an amendment — but it would be real news if Trump came out for the direct election of the president and vice president as part of his program to make America great. …

PBS News Hour reports.

Simon Lazarus for TNR:

If the current constitutional structure frequently yielded electoral count victors who lost the national majority vote, then indeed, the Constitution should be amended, and liberals should support such an amendment. But that’s not what’s happened. In the 235 years since the Constitution was first ratified, popular-majority winners have lost the electoral count a mere five times—in 1824, 1876, 1888, 2000, and 2016.

In the same vein, if the current constitutional procedure systematically disadvantages liberals or Democrats, they should absolutely favor junking it. But that widely believed fact is also incorrect. While it’s true that the electoral count provisions of the Constitution give individual voters in thinly populated states more sway over their states’ electoral vote winners than individual voters in densely populated states, the real-world partisan impact of that abstract defect is negligible or nonexistent. Historically, the left-right tilt of virtually all states, big and small, has shifted often and will surely shift again. Even the “solid South” included exceptions not too long ago, e.g., in Florida, Texas, Arkansas, Tennessee. And now Georgia and North Carolina are competitive. At present, as Timothy Noah points out, of the 10 smallest states, those with three or four electoral votes, only half tilt red.

In actuality, the Electoral College is a phantom target. What its critics actually have in mind is the “winner-take-all” arrangement that governs the choice of electors in all but two small states—Maine and Nebraska. But that arrangement, despite its near-universality, is not mandated by the Constitution at all. The Constitution merely requires that, every 10 years, the federal government must conduct a national census, on the basis of which each state is allotted a percentage of the total number of electors proportionate to its share of the national population. But how states choose to select their electors is entirely up to each state. For at least a century, states’ electors have been slates picked by majorities of eligible voters. Hence, the Electoral College set up by the Constitution has long functioned as a mere pass-through for state-wide popular majorities. (Eligibility, of course, has not always encompassed all appropriate residents or even citizens.)

The Independent:

President-elect Donald Trump took to his Truth Social platform on Sunday night and declared that Democrats were “fighting hard” to make all future presidential elections based “exclusively” on the Electoral College.

The curious late-night post prompted many to wonder if the incoming president was trolling liberals after finally winning the popular vote on his third try. At the same time, some progressives hoped that Trump’s assertion could lead conservatives to be “radicalized” against the notion of relying on states’ electoral votes to determine presidential elections.

Despite opinion polls showing that eight in 10 Democratic voters prefer to see the winner of the presidential election decided by whoever receives the most votes nationally while the majority of Republicans prefer the state elector system, Trump insisted that Democrats were working to keep the Electoral College.

That’s the headline from the Associated Press.

The Electoral Count Reform Act pushed back the date the electors meet by one day to allow an extra day for resolving disputes in the states, without moving too close to the holidays or reducing the window of time for other transition-related matters (e.g., organizing the House of Representatives). As I wrote back in 2022, state legislatures should have taken the opportunity to re-examine their election codes and update them ahead of the 2024 election. Some states did so. And in Wisconsin, a Republican-led effort passed the Senate nearly unanimously. But it languished in the Republican-controlled state Assembly.

Now Republicans are suing because of vestigial language in state law that they failed to repeal and ought to have done–language saying the electors meet on the first Monday after the second Wednesday in December, rather than the ECRA’s first Tuesday after the second Wednesday. The state law clearly cannot have any force, as the Constitution provides, “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” And Congress has done so.

But Wisconsin, like many other states, still have this vestigial language in their laws. In many places, it will be rightly ignored, because it is “Congress” that gives the “day,” not the states. (States here are only parroting federal law.) But now lawsuits like this one in Wisconsin offer a belt-and-suspenders approach to ensure that the electors do not meet on Monday. Of course, they must meet on Tuesday, December 17, because federal law demands it. And if they do, there is no possible objection in Congress that they met on the wrong day.

Unfortunately, the lawsuit highlights how state legislative recalcitrance to update even basic election law matters can create a potential (albeit legally quite weak) problem. Here’s to hoping state legislatures update their laws by 2028.