New rules in Georgia are worrisome but safeguards prevent rogue election officials from refusing to certify the results.
After the 2020 presidential election, Donald Trump and his allies denied that Joe Biden had won. To this day, election deniers refuse to accept that Trump lost the election. Efforts to thwart Biden from becoming president, including the Trump-inspired insurrection at the Capitol on January 6, 2021, were ubiquitous. Trump’s supporters filed dozens of lawsuits to stop the certification of Biden’s win, none of which was successful.
One of the tactics the election deniers used was the refusal of local officials to certify the results of the 2020 election, based on the false claim that there was widespread voter fraud. Fortunately, safeguards built into state laws held, and they prevented Trump from stealing the election from Biden.
During the 2022 midterm elections, “several rogue local officials” in multiple states “refused or threatened to refuse to certify valid election results based on false claims of widespread fraud. All of these efforts were unsuccessful,” Lauren Miller Karalunas, counsel in the Brennan Center’s democracy program, told Truthout.
In this interview, Miller Karalunas explains the mandatory duty of election officials to certify the results. She details what would happen if the 2024 election results are not certified by the constitutional cut-off date, the legal remedies available to protect certification of the results of the election, and whether the strategies of the election deniers to undermine the outcome could be successful.
Marjorie Cohn: What is election certification, what is its purpose, and who carries it out?
Lauren Miller Karalunas: Certification is the process by which election officials sign off on the completion of election results. They make sure that the many processes to tabulate the results and confirm they are correct have taken place. It is a formality that is procedurally important, but substantively very narrow.
Do members of county election boards have discretion to refuse to certify the election results in their districts or is certification mandatory?
Certification is mandatory. Local officials certifying an election must follow detailed state laws and regulations, all of which make very clear that certification is not optional. It is not the time for certifying officials to investigate election results; there are other procedures, such as post-election contests and court proceedings, that are specifically designed to answer legal questions about election results. There is no wiggle room for certifying officials to take matters into their own hands. Their only duty during certification is to sign off on the completeness of the results.
Was certification refusal prevalent after the 2020 presidential election and how were the election results ultimately protected?
In the days after the November 2020 presidential election, Michigan saw the first instance in which election officials refused to certify election results based on claims rooted in election denialism — the false idea that the election was stolen and that widespread fraud pervaded our election system. Fortunately, the election was ultimately certified. Two members of the Wayne County Board of Canvassers tried to rescind their votes to certify the election, but state law prevented them from doing so. And a majority of the State Board of Canvassers ultimately voted to certify over the abstention of a lone dissenting board member. In response to the incident, Michigan’s voters amended their state constitution to add even more safeguards against any future efforts to interfere with certification.
Michigan’s experience, however, foreshadowed more certification disputes rooted in election denialism in 2022. During the midterm election cycle, several rogue local officials in states such as New Mexico, Nevada, Pennsylvania, North Carolina and Arizona refused or threatened to refuse to certify valid election results based on false claims of widespread fraud. All of these efforts were unsuccessful. Some of these rogue officials have since been removed from their positions, and others have faced criminal charges.
I understand that at least 10 counties refused to certify after the 2022 midterm elections. What happened when those refusals were challenged in court?
Fortunately, courts and state officials successfully intervened in each of these instances to compel certification consistent with state law. One of the reasons that courts were able to act so quickly and effectively is that attacks on certification are not new. For as long as we’ve held elections in the United States, local certifying officials have tried to manipulate and interfere with the process to benefit their political agendas. Early state legislatures and courts across the country took notice. Recognizing that leaving room for refusals to certify created risks for precisely the type of disputes and misconduct that we’re seeing today, they purposefully shaped election certification into a mandatory duty with well-established protections against those who try to manipulate the results. As the Oklahoma Supreme Court explained as early as 1909, allowing local certifying officials “who are generally without training in the law” to go behind election returns and investigate the election itself “would afford temptation and great opportunity for the commission of fraud.”
How do you think such efforts will differ, or increase, after the 2024 presidential election?
We’ve already seen several instances this year in which local election officials have tried to refuse to certify a primary election, and we could see more attempts in the general election. But voters should rest assured that if they see an attempt to refuse to certify in their jurisdiction, that does not mean there is a problem with the votes, and there are processes in place to make sure that their votes will be counted and certified on time.
The GOP-controlled Georgia election board has adopted a new certification rule. What is it and how might it affect the 2024 election?
Georgia’s state election board recently voted to approve a new certification rule. The rule empowers local certifying officials to pursue a “reasonable inquiry” into election results before certifying the election, but it doesn’t define or set any limits on that “reasonable inquiry.” The rule conflicts with longstanding Georgia law that makes clear certification is a mandatory duty and leaves no wiggle room for local certifying officials to investigate elections or take legal matters into their own hands. For this reason, the rule would sow disorder in the state’s election administration processes, which already have safeguards to ensure that election results are accurate and reliable.
The state board also adopted a second rule that adds several new steps for county boards of election to complete before certification. This rule requires county boards to meet no later than 3:00 pm on Friday, November 8, to review precinct returns; this deadline conflicts with the current deadline in existing Georgia law for determining the validity of provisional ballots. It also requires county boards to conduct investigations into perceived discrepancies in compiled lists of voters at each precinct, and permits them to examine “all election related documentation” when reviewing a precinct’s returns. This rule, and the potentially never-ending search of documents it allows, could pave the way for significant interference with, or delays in, the certification process.
Rather than supporting election administrators who have long been tasked with ensuring the vote count results are accurate, these new rules encumber counties with imprudent, last-minute procedures — all while undercutting the public’s confidence in elections.
If election officials refuse to certify the results, that would also prevent pro-Trump votes from being certified as well, correct?
Attempts to delay or refuse to certify affect every eligible vote cast in an election, regardless of party.
What would happen if the election results are not all certified by the constitutional cut-off date of December 11?
The Electoral Count Act of 1887 (ECA) provides the primary legal framework for casting and counting Electoral College votes in presidential elections. The Electoral Count Reform Act (ECRA), passed in 2022, updates the ECA. Among other things, the ECRA created a December 11, 2024, deadline for state executives to certify their state’s slate of presidential electors ahead of the meeting of electors, which will take place on December 17. Even if a county refuses to certify an election, state officials and state courts should be able to quickly intervene to compel certification in time to meet the December 11 deadline. The ECRA also creates a backstop process for expedited judicial review in federal court. In the rare instance when court proceedings are still ongoing on December 11, past experience suggests that a governor would have the option to issue a preliminary certificate reflecting the apparent winner at that time, along with an explanation that the certificate will be revised, if necessary, as court proceedings play out. The ECRA also provides a process for courts to order revised certificates before the electors meet on December 17. In short, court proceedings should ensure that the correct slate of presidential electors is ultimately certified.
What are the legal remedies available to state and federal authorities and voters to protect the certification of the results of the 2024 election?
Every state has certification enforcement mechanisms that generally fall into one of two categories.
The first category consists of state-specific statutes that outline the precise process to follow if officials refuse to certify an election. In Michigan, for example, state law allows state election officials to take over certification at the local level if a local official refuses to certify.
Other states fall into the second category: going to the courts. If an official refuses to certify an election, state officials, or a candidate in the race, and in some states, voters themselves, can ask a court to step in and order an official to fulfill their legal duty to certify an election. This is what’s legally known as a mandamus proceeding.
In the rare event that an official refuses to follow a court order requiring them to certify an election, available remedies include fines that stem from courts’ power to hold individuals in contempt, criminal penalties under state law, state processes that allow rogue officials to be removed from office, and state processes that allow courts to appoint another person to conduct the court-ordered certification.
Although states have effective safeguards in place to ensure that elections are certified on time, any attack on the process still causes harm by creating confusion and disrupting the election process. And that’s exactly why we’re seeing these refusals. It’s part of the broader effort to sow doubt about our elections.
Even if certification refusals don’t undermine the election results, what other tactics can we expect Trump and his allies to use if Kamala Harris wins?
Election certification is just one of the many election processes that election deniers are targeting now, with the goal of casting uncertainty on any unfavorable results. Other strategies to cast doubt on elections include attacks on mail voting, efforts to discredit voting machines, and challenges to large numbers of voter registrations. Voters should know that despite these attacks, there are many federal and state guardrails that protect their right to vote.
Copyright Truthout. Reprinted with permission.
