Posted on 05/03/2014 6:53:48 AM PDT by Kaslin
Just another group of New York lawyers:
“Let’s see if we can find a loophole in the Constitution of the United States and amend the Constitution without a Constitutional Amendment.”
“Let’s skip any vote required by Congress, let’s skip the required vote of the states and let’s skip a Constitutional Convention --- oh, and let’s not even ask the people of New York.”
Looking for a loophole. That is what we just love about lawyers, isn’t it?
Governor Cuomo has signed, on behalf of the people of New York, the National Popular Vote Interstate Compact. This Compact would result in the State of New York voting each of its electoral votes for the winner of the national popular vote regardless of the actual vote of the citizens of New York.
The Compact would become effective when and if states controlling 270 electoral votes, a number sufficient to elect the President, pass identical contractually binding legislation. State delegates in each of these states would thereafter be required to ignore their constituents and vote their state’s electoral votes for the winner of the national popular vote.
Without a vote of the people of New York, the New York legislature and the Governor agreed to essentially change the Constitution of the United States, risk the possibility that the State of New York will vote its electoral votes for a person other than the candidate selected by the people of New York and ultimately cause yet another presidential election to be decided by the Supreme Court of the United States.
There could be no greater irony than Governor Cuomo signing a bill to disenfranchise the roughly 13,000,000 million registered voters of New York. Ignoring all intellectual positions, the Governor must know that if in 2004, 59,300 Ohioans had voted for John Kerry instead of George W. Bush, Senator Kerry would have become President despite having lost the national popular vote by over 3 million votes. New York voted overwhelmingly (58%) for Mr. Kerry. If the National Popular Vote Compact had been in place, every New York electoral vote would have gone to President Bush and made him the President of the United States instead of Mr. Kerry.
This notion that a number of states controlling 270 electoral votes (theoretically possible with the approval of only 11 states) should be able, by a contract among themselves, affect a "poor man's constitutional amendment" to the Constitution of the United States is fascinating. This should be abhorrent to anyone with the slightest interest in the vitality and history of the Constitution. Such a plan would reduce the combined voting impact of the voters of Vermont, Wyoming, North Dakota and South Dakota in the presidential race to that of Brooklyn.
The Founders' conceptual framework for electing a President insured that urban voters of a few states could not totally control the selection of the President. Electing a President through a national popular vote would obliterate this concept.
Oh yes, the Compact is likely unconstitutional. Article 2 of the Constitution of the United States does allow each state legislature almost unlimited power to direct their electors in casting their electoral votes for President. However, two other articles of the Constitution individually and collectively trump Article 2.
First, Article 1 of the Constitution specifically prohibits agreements between States without the consent of Congress. While this clause has been judicially narrowed over time, it is unlikely that it has been narrowed sufficiently to allow the National Popular Vote compact without Congressional consent.
Second, this "poor man's constitutional amendment" is specifically designed to circumvent the Constitution. Without reservation, its sole purpose is to avoid the constitutionally necessary and likely unattainable requirement of ratification of this notion by three quarters of the states under Article 5. Would the Supreme Court allow such a result? I think not.
Under either Articles 1 & 5, separately and certainly collectively, the Supreme Court should hold the Compact unconstitutional. But here is the rub. First there would have to be an election, then there would have to be a lawsuit, then the Supreme Court would have to decide if the winner of a presidential election would be the winner according to the Constitution or via a loophole developed by approved by a bunch of New York lawyers. Then, instead of an election determined by the popular vote or the electoral system, the president would be determined by a majority of the then nine Supreme Court judges. Disaster!
The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.
That any state legislature could be taking actions to approve a "poor man's constitutional amendment" rather than moving forward with a proper constitutional amendment as envisioned by the Founders is unacceptable. That any state legislature would consider ignoring their constituents' votes through their own affirmative action should be reserved for the fiction section of our local libraries.
I guess he's trying to say that Cuomo would have wanted Kerry to win even if he got fewer votes and Cuomo's own plan would have prevented this.
I agree with you. It's confusing and a weak argument. Presumably, by proposing the plan, Cuomo would have been okay with Kerry losing the presidency if he got fewer popular votes nationwide.
While the governor may really want Democrats to win, one can't simply assume that this plan is designed purely to ensure Democrat victories.
It may be a very lousy plan but the author's logic looks faulty here (the conditional "would have" grammar may also be confusing).
Another problem with this scheme will occur when each State in the compact “decides” who won. For example - 2016 Cruz beats HRC by 50 000 votes. California and NY announce they won’t recognize Texas returns because of voter suppression, and appoint electors to vote for HRC.
Another reason the “popular vote” tally is a fallacy.
In many states,
if the number of absentee, military, overseas, or whatever other provisional ballots
that are on hand at the end of the election are not enough in number to make a difference
in the outcome of the race, then they are never even counted in the first place.
I still find it amazing that a state legislature would basically say:
“no matter how the people of this state vote,
we are going to ignore that, and we will direct our electors
to vote according to how someone else voted.”
At least, that's how I read it.
mmm...
The electors don’t meet until the middle of December. Disputes within states about which electors go are to be decided six days before that meeting. Plenty of time to ferret out state-by-state vote totals, as such totals are (theoretically) witnessed by multiple representatives and are not in any way secret.
I'm not sure that I agree with this sentiment. On its surface, the National Popular Vote Compact does seem to be constitutional, but only if Congress consents.
The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.
I think I just thought of a new flaw in this argument that I had not considered before.
The idea of 3rd party candidates (like Ross Perot) for instance, gave us President Clinton who did not win a majority of the national popular vote (he won a plurality), but he still got the needed 270 electoral college votes.
But what happens if a candidate wins the national popular vote but fails to gain 270 electoral votes?
The National Popular Vote Compact violates the 12th amendment by usurping the power of the House of Representatives to choose the President in the event that a candidate fails to reach 270 votes.
Imagine a scenario where the compacting states award their 270 votes to the plurality winning candidate, but that candidate, without the NPV Compact, would not have attained both a majority national vote and the required 270 electoral college votes.
With the NPV Compact, the compacting state will still award 270 votes to the plurality winner, which bypasses the 12th amendment power of the House to decide.
Would the House of Representatives, as a part of consenting to the Compact, agree to give away this power?
-PJ
Article II Section. 1 (As amended by the 12th Amendment)
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons President and Vice-President, of whom one at least shall not be an Inhabitant of the same State with themselves.
And they shall make a List of all the Persons voted for name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the Number of Votes for each; which Lists they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
The Person having the greatest Number of Votes shall be the President for President, shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President, the President.
But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.
In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
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.
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
See the bolded, underlined, black text.
According to the 12th amendment, if a candidate fails to reach the majority of electoral college votes (270), the House of Representatives decides amongst the top 3 vote-getters.
Since the NPV Interstate Compact is not an amendment, the Article VI supremacy clause rules that the 12th amendment supercedes as Constitutional law of the land.
I'm simply pointing out that the NPV Compact is being sold as a method to get around the Electoral College, but it is also a scheme to get around the House of Representatives, too, via circumventing the 12th amendment.
Since an interstate compact requires Congressional consent, one can lobby the House to withhold their consent because they would be ceding away one of their unique powers to a handful of states. Under the NPV Interstate Compact, there would never again be a case where a candidate fails to attain the majority of electoral college votes. It's debatable as to whether that's a good or bad thing.
For those who argue that this is not a compact requiring Congressional consent, I argue that taking away a Constitutional power of the House without their consent, when the remedy is already in the Constitution (Congressionial consent for interstate compacts), then this fact is enough to demand Congressional consent to the compact.
-PJ
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 for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site.
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.
Neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day).
The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.
It is difficult to sustain the argument that preserving the opportunity for the U.S. House of Representatives to choose the President was ever a significant guiding factor (much less a constitutional imperative) in the choice of the size of the House. In the time between ratification of the 12th Amendment and 2008, the size of the House has been such as to make the size of the Electoral College an even number in only about half of the years in which presidential elections were held.
The Solicitor General’s brief to the U.S. Supreme Court in 2010 in the case of John Tyler Clemons et al. v. United States Department of Commerce traces the history of the various statutes that set the size of the U.S. House of Representatives.
The (ultimately unsuccessful) plaintiff in that case argued that the present-day size of the U.S. House of Representatives is unconstitutionally small because it creates unconstitutionally large differences in the number of people represented by congressmen from different states.
If Congress thought that the opportunity to break a tie in the Electoral College was a constitutional imperative—or even a worthy secondary objective—Congress could have easily accommodated that factor when it periodically adjusted the size of the House.
If it were unconstitutional to enact an electoral arrangement that has the almost-certain practical effect of depriving the U.S. House of Representatives of the opportunity to occasionally choose the President, then the House has operated with a constitutionally impermissible structure for about half of American history.
The contingent election procedure exists in order to resolve a deadlock if one should arise in the Electoral College. The existence of a contingent procedure does not create a constitutional imperative that other statutes be fashioned so as to guarantee that the contingent procedure will be used.
The Solicitor General’s brief shows that Congress did not view protection of its own prerogative to elect the President and Vice President as a factor in setting the size of the House.
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”
Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.
In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
“the test is whether the Compact enhances state power quaod [with regard to] the National Government.”
The Court also noted that the compact did not
“authorize the member states to exercise any powers they could not exercise in its absence.”
The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country.
When states with a combined total of at least 270 Electoral College votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.
The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Republican, Democratic, and purple states with 250 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.
&&&&&&&&&
In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows candidates do not win with small percentages. For example, in 905 elections for governor in the last 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections. The winning candidate received more than 45% of the vote in 98% of the elections. The winning candidate received more than 40% of the vote in 99% of the elections. No winning candidate received less than 35% of the popular vote.
&&&&&&&&&&&&&&&&
In terms of recent presidential elections, the 11 largest states have included five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.
Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population,
provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
&&&&&&&&&&&
With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% of the nation’s votes!
The indefensible reality is that more than 99% of campaign attention was showered on voters in just ten states in 2012- and that in today’s political climate, the swing states have become increasingly fewer and fixed.
Where you live should not determine how much, if at all, your vote matters.
The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), ensures that the candidates, after the conventions, will not reach out to about 80% of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.
Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win.
10 of the original 13 states are ignored now.
Four out of five Americans were ignored in the 2012 presidential election. After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10. These 10 states accounted for 98% of the $940 million spent on campaign advertising. They decided the election.
Two-thirds of the general-election campaign events (176 of 253) were in just 4 states (Ohio, Florida, Virginia, and Iowa).
None of the 10 most rural states mattered, as usual.
About 80% of the country was ignored —including 24 of the 27 lowest population and medium-small states, and 13 medium and big states like CA, GA, NY, and TX.
National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate. In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).
And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
With National Popular Vote, every popular vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.
Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every voter is equal, the campaign must be run in every part of the country.
When and where voters matter, then so do the issues they care about most.
National Popular Vote ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.
Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.
100% of the ballots in every state are counted in order to determine the outcome of the presidential election and the numerous other offices and propositions on the ballots. Representatives of the candidates, political parties, proponents and opponents of ballot measures, civic groups, and the media have the ability to obtain the vote count for every precinct.
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. 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. 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.
A survey of New York voters showed 79% overall support for a national popular vote for President.
By gender, support was 89% among women and 69% among men.
By age, support was 60% among 18-29 year olds, 74% among 30-45 year olds, 85% among 46-65 year olds, and 82% for those older than 65.
Support was 86% among Democrats, 66% among Republicans, 78% among Independence Party members (representing 8% of respondents), 50% among Conservative Party members (representing 3% of respondents), 100% among Working Families Party members (representing 2% of respondents), and 7% among Others (representing 7% of respondents).
Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it would be wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).
Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls
in recent or past closely divided Battleground states: CO – 68%, FL – 78%, IA —75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%;
in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%;
in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and
in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%.
The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Republican, Democratic, and purple states with 250 electoral votes.
NationalPopularVote
“The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The National Popular Vote states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.”
- Vikram David Amar - professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.
Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress..."
A popular vote for president is not required by the Constitution. They could flip a coin and award electoral votes based on that if the legislature approves it.
Neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day).
The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.
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.” They list the electors and the number of votes cast for each. The Congress meets in joint session to count the electoral votes reported in the Certificates of Ascertainment. You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site.
The National Popular Vote bill
“Article III–Manner of Appointing Presidential Electors in Member States
Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner. “
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