Article by Jenny Gimian*
3 Fordham L. Voting Rights & Democracy F. 160
Thank you, Professor Goldfeder, and thank you, everyone. It’s wonderful to be here today. I’m going to talk about election certification, specifically county certification, which has quickly gone from being an almost invisible election procedure to being more or less in the everyday vernacular as a point of controversy, concern, and unfortunately, a lot of misinformation. So I’m going to talk a little bit about what certification is, what it isn’t, what we’ve been seeing in some of the counties, and what we should be watching for this fall. Certification, very simply, is a pro forma, ministerial, or nondiscretionary election step in the vote counting process. The EAC, or the Election Assistance Commission, defines it as a written statement attesting that the tabulation and canvassing of the election is complete and accurate.1See Election Results, Canvass, and Certification, U.S. Election Assistance Comm’n, https://www.eac.gov/election-officials/election-results-canvass-and-certification [https://perma.cc/P4RB-R2WJ]. I’m going to talk mostly about county certification, but there’s also state certification, and in some cases, municipal certification.
Certification in practice is closely intertwined with the canvass process. The canvass is one measure by which election officials double check and confirm the completeness and accuracy of the counting process. The exact details vary state to state, but typically the canvass involves ensuring all the vote totals and documentation from all the election day, early vote, vote by mail, provisional, and overseas ballots, have all been received and reviewed, but mostly for facial errors, like arithmetic mistakes.2See U.S. Election Assistance Comm’n, Election Management Guidelines 127 (2d ed., 2023) (“Laws and regulations for conducting the canvass vary by State and, at times, by local jurisdiction.”). For example, it’s not unheard of for election officials as they’re reviewing tabulation tapes at the end of the night to transpose and enter the wrong numbers—instead of 245, they might enter 254—and so there’s another set of procedures to check for those sort of errors and fix them during the canvass process. Then at the conclusion of the canvass, the precinct results and all the ballot totals are assembled together in a single document, and then certification takes place when those officials who are responsible for certification sign that document.3See id. at 131. In practice, this often takes place at a public meeting in states, so you might also have a vote on the record as a part of that process. Also, where that canvassing jurisdiction has final authority over the race, such as county officials for county races, they will also announce the winner and typically issue some kind of certificate.4See id.
So, we talked a little bit about what certification is, I think it’s also helpful to say something about what certification isn’t. Certification doesn’t typically involve the power to investigate beyond the face of the returns, so the duty to certify doesn’t involve the power to have a recount, initiate audits, or investigate for fraud, mistake, or malfeasance during the voting process itself. Those are all separate processes. They exist when there’s a genuine need. There are procedures for investigating fraud or mistake, and sometimes the same officials have powers and roles to play in those procedures, but the power doesn’t come by virtue of the duty to certify. Given that this is such a pro forma procedural step, nonetheless, it has been in the news a lot, and we are talking about it a lot now.
I want to first note that the vast majority of election officials are well-meaning public servants who work tirelessly for the security and fidelity of our election results. However, since 2020 in particular we’ve seen a rise in election denial and subversion efforts among a growing minority of election officials themselves, particularly at the county level, who have attempted to redefine certification and assert their own will in place of the voters’ and undermine confidence in our elections.5See, e.g., Election Denial in Races for Election Administration Positions, Brennan Ctr. for Just., https://www.brennancenter.org/series/election-denial-races-election-administration-positions [https://perma.cc/4DWF-AD5E]. To give a few examples of that, in 2020 in Mecklenburg, North Carolina, we saw two county board of election members who refused to certify because they claimed that a change in guidance from the state board of elections violated state law and invalidated the results.6See Lana Harris, Mecklenburg County Certifies 2020 Election Results Despite Republicans’ Questions, WCNC Charlotte (last updated Nov. 14, 6:45 PM 2020), https://www.wcnc.com/article/news/politics/elections/mecklenburg-board-of-elections-vote-to-certify-the-election-was-not-unanimous-republicans-vote-no/275-3f58bc0f-53c8-4907-8d11-8a80d9555e71 [https://perma.cc/J2VF-NCEY]; Coleen Harry, Mecklenburg County Board of Elections Certifies Election Results; Two Members Vote Against It, WFAE (Nov. 14, 2020, 7:53 AM), https://www.wfae.org/politics/2020-11-14/mecklenburg-county-board-of-elections-certifies-election-results-two-members-vote-against-it [https://perma.cc/N5QU-XRVC]. In Mohave County, Arizona, a county board of supervisors member moved to delay certification, simply noting that it was a contentious election and Arizona was still in play.7See Laura Gómez, Maricopa County GOP Chair Rejects Accuracy Test to Help Trump ‘Get Back Into Office’, AZMirror (Nov. 20, 2020), https://azmirror.com/2020/11/20/linda-brickman-rejects-accuracy-test-to-help-trump-get-back-into-office [https://perma.cc/4EAG-PWS6] (Jean Bishop, chair of the Mohave supervisors, said the move is “political,” and intended to “make a statement to support the state party.”); Mohave County Board of Supervisors, Regular Meeting (Nov. 16, 2020); Ron Gould, Informing Democracy: Election Officials Library, https://www.notion.so/informingdemocracy/Ron-Gould-6e8285aabda34fcda170e8897078a5e8 [https://perma.cc/P4FY-LWKD] (last visited Jan. 31, 2025). And perhaps most notably, from 2020 in Wayne County, Michigan, two county board of canvassing members refused to certify, resulting in a temporary deadlock.8See Colin Dwyer, Michigan’s Wayne County Certifies Election Results After Brief GOP Refusal, NPR (last updated Nov. 18, 2020, 11:36 am), https://www.npr.org/sections/live-updates-2020-election-results/2020/11/18/936120411/michigans-wayne-county-certifies-election-results-after-brief-gop-refusal [https://perma.cc/6P6A-KQWB]; Beth LeBlanc, Francis X. Donnelly & Craig Mauger, Wayne Co. Canvassers Certify Election Results After Initial Deadlock, Detroit News (last updated Nov. 18, 2020, 11:38 AM), https://www.detroitnews.com/story/news/politics/2020/11/17/wayne-county-canvassers-deadlock-certifying-november-3-election-results/6324274002 [https://perma.cc/LTB8-QCE6].
Then in 2021, a Lackawanna County commissioner in Pennsylvania voted against certification simply over a dislike of drop boxes, and multiple counties tried to leverage the certification process because they disagreed with vote-by-mail rules.9See Borys Krawczeniuk, A Video Appears to Show a Man Stuffing a Ballot Box in Lackawanna County; a GOP County Commissioner Wants an Investigation, Morning Call (Oct. 8, 2021, 3:32 PM), https://www.mcall.com/2021/10/08/a-video-appears-to-show-a-man-stuffing-a-ballot-box-in-lackawanna-county-a-gop-county-commissioner-wants-an-investigation [https://perma.cc/CQB5-5Z7V]. In 2022, Arizona was again a hotspot with multiple issues, including in Mohave County, where a supervisor voted against certification as a protest of a different county’s—Maricopa—counting process, and noted himself that it was purely a political statement.10Zack Schonfeld, Two Arizona Counties Delay Certification of 2022 Election Results, The Hill (Nov. 21, 2022, 5:12 PM), https://thehill.com/homenews/state-watch/3745387-two-arizona-counties-delay-certification-of-2022-election-results [https://perma.cc/2WDE-CURM]; Ned Parker & Linda So, Republicans in One Arizona County Refuse to Certify Election Results, Reuters (Nov. 30, 2022, 12:16 PM), https://www.reuters.com/world/us/arizona-election-deniers-refuse-back-down-2022-11-28 [https://perma.cc/9KFP-EPC4] (“[T]he Mohave board ultimately certified its election results but also criticized Maricopa’s performance.”); Ron Gould, supra note 7. And in Washoe County, Nevada, a board of commissioners member voted against certifying the recount in her own race, even though the results noted that she had won the election.11See Mark Robison & Rio Lacanlale, Nevada’s Most Populous Counties, Washoe and Clark, Certify Election Results, Reno Gazette J. (last updated Nov. 18, 2022, 5:53 PM), https://www.rgj.com/story/news/politics/elections/2022/11/18/protesters-demand-hand-count-outside-washoe-county-vote-canvass/69661191007 [https://perma.cc/CZA6-5E8B]; Gabe Stern, Nevada County Votes Against Certifying Recount Results, a Move That Raises Longer-term Questions, Associated Press (July 10, 2024, 12:41 AM), https://apnews.com/article/nevada-election-certification-washoe-county-conspiracy-theories-259fd52cc2d0c6770a741d854dd0ae28 [https://perma.cc/LZS9-EH8J]. And in one of the more egregious steps in Georgia just this fall, the state election board mounted their own attempt to alter certification by passing multiple rules to redefine certification and distort the process.12Justin Glawe, The Election Deniers with a Chokehold on Georgia’s State Election Board, The Guardian (Sept. 26, 2024, 8:00 AM), https://www.theguardian.com/us-news/2024/sep/26/georgia-board-of-elections-election-deniers [https://perma.cc/H7NM-53E3]. And in perhaps one of the strangest and most recent ones in Waynesboro, Virginia, two local board of election members have claimed they won’t certify results in November because they believe the tabulation machines violate a state constitutional provision on the secrecy of the vote-counting process13See Lyra Bordelon, Waynesboro Electoral Board Members Refuse to Certify Nov. Election, per Lawsuit, News Leader (last Oct. 14, 2024, 12:50 PM), https://www.newsleader.com/story/news/local/2024/10/14/waynesboro-officials-refuse-to-certify-nov-election-per-lawsuit/75677245007 [https://perma.cc/99LJ-VPQU] (“Because they cannot check the anonymized ballots themselves, the complaint states, the plaintiffs believe that the voting machine is counting the votes in secret because neither the program counting the votes . . . nor the ballots themselves can be examined.”). —because much like a calculator, we can’t actually see what a tabulator does as it is counting the votes. So, they want to take us back a century.
These are just a smattering of the most extreme and direct examples of challenges to the certification process over the last four years. And noting again, the vast majority of election officials really are dedicated public servants. Nonetheless, this is something of the tip of the iceberg in terms of a growing amount of election denial and misinformation that is infiltrating the system. Thankfully, however, where these issues have arisen, we have seen swift and often successful pushback against these efforts to undermine certification.
In 2020, public outcry and official rebuke was enough to resolve the issue in Wayne County.14See Dwyer, supra note 8 (“[The deadlock] stood for just about three hours under withering criticism, as residents made their complaints clear during a public comment period and local and national leaders lambasted the two members’ decision online.”). And more recently, in Kalamazoo County, the ACLU secured a settlement after a board of canvasser member said he wouldn’t certify this November, and they’ve secured a sworn statement that he now will certify.15See ACLU Lawsuit Results in Kalamazoo County Election Official Agreeing to Certify November Election Results, ACLU(Sept. 10, 2024, 3:30 PM), https://www.aclu.org/press-releases/aclu-lawsuit-results-in-kalamazoo-county-election-official-agreeing-to-certify-november-election-results [https://perma.cc/2GB3-NE85].
In Nevada, there was quick legal pushback that resulted in reversal when Washoe County failed to certify.16See Gabe Stern, Nevada County Reverses Controversial Vote and Certifies Two Recounts While Legal Action Looms, Associated Press (last updated July 16, 2024, 10:02 PM), https://apnews.com/article/washoe-county-cisco-aguilar-aaron-ford-427cb4cbb840f6f9d995403d52e63419 [https://perma.cc/7H87-8SPP] (“The 4-1 decision overturns last week’s vote against certifying election recount results from June’s primary.”). The attorney general quickly filed a lawsuit to compel certification, and that, along with a clarifying statement from the county district attorney’s office, was enough to get two of the three members to reverse their votes.17Id. The Nevada Supreme Court did not end up weighing in directly because the case was then moot.18Scott Sonner & Gabe Stern, Nevada Supreme Court Declines to Wade Into Flap Over Certification of Election Results, for Now, Associated Press (last updated Aug. 20, 2024, 7:38 PM), https://apnews.com/article/election-certification-nevada-supreme-court-washoe-county-eb6e82cb4bf25c5c8cc1a32bf7d6f986 [https://perma.cc/93K6-BVGT] (“The high court said in a ruling that the matter was moot since the Washoe County Commission’s original 3-2 vote . . . was later nullified when it re-voted the following week to certify the results.”). They did note, however, that they clearly had jurisdiction and were poised to weigh in should that be needed in the future.19Id. (“[T]he justices also made clear that they have the legal authority to make such a declaration and warned they may do so on an expedited basis if it becomes an issue again.”).
And in Arizona, the pushback has been particularly swift and harsh. In 2022 in Cochise, it did take a court order to force certification.20Hansi Lo Wang, Arizona’s Cochise County Finally Certifies Its Election Results After a Court Order, NPR (Dec. 2, 2022, 9:39 AM), https://www.npr.org/2022/12/01/1140086777/midterm-elections-cochise-county-arizona-ruling [https://perma.cc/ZNC8-QPK4]. The incident has also resulted in criminal charges against both supervisors who had refused to supervise, one of whom has now accepted a plea agreement.21See Caitlin Sievers, Cochise County Supervisors Face Felony Charges for Delay in Certifying 2022 Election Results, AZMirror (Nov. 29, 2023, 12:43 PM), https://azmirror.com/briefs/cochise-county-supervisors-face-felony-charges-for-delay-in-certifying-2022-election-results [https://perma.cc/9DXS-TFC4]; Matt Cohen, Arizona Election Official Pleads Guilty to 2022 Election Subversion Scheme, Democracy Docket (Oct. 21, 2024), https://www.democracydocket.com/news-alerts/arizona-election-official-pleads-guilty-to-2022-election-subversion-scheme [https://perma.cc/TTU4-KVWB]. So I think in Arizona in particular, there’s been a change in the rhetoric in that election officials are now more often saying that they understand that it is a mandatory duty while noting that they are doing so “under duress” in some cases.
In Georgia, thankfully, the Superior Court of Fulton County has struck down the state board’s newly passed rules as both illegal overreach and unconstitutional, and the Georgia Supreme Court has declined to reinstate them on appeal.22See Republican Nat’l Comm. v. Eternal Vigilance Action, Inc., No. S25M0259 (Ga. Oct. 22, 2024); see also Erin Geiger Smith, Georgia Supreme Court Declines to Reinstate Controversial Election Rules, State Ct. Rep. (Oct. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/georgia-supreme-court-declines-reinstate-controversial-election-rules [https://perma.cc/6UG2-M98B].
So these are just a few examples of the deterrents and protective countermeasures that exist to protect our election certification process at the county level. There are others in some states: state officials may be able to act to move county certification along more directly, and as we’ve seen, some of these also have served as deterrents, particularly the availability of criminal penalties which exist in most states for this sort of failure to do a ministerial or mandatory duty.23See Jacek Pruski & Helen White, Election Denying Officials Who Refuse to Certify Election Results Could Face Prosecution, Just Sec. (Nov. 7, 2022), https://www.justsecurity.org/83975/election-denying-officials-who-refuse-to-certify-election-results-could-face-prosecution [https://perma.cc/ME62-3DGA] (“Such abuses of authority . . . may expose complicit officials to criminal liability.”).
So, given all that, what should we be watching for most this November? We clearly need to be vigilant, but I think that’s true not only in areas where we’ve seen these anti-certification efforts directly, but also in areas where we’re seeing potential warning signs like election denial or other antidemocratic activity, things like support for hand counts or the active spreading of disinformation by election officials. Michigan in particular has a high number of concerning statements and actions by election officials.24See, e.g., In the Documents: Allegations of Interference by Election Denial Group During 2022 Michigan Recounts, Am. Oversight (Oct. 4, 2023), https://americanoversight.org/in-the-documents-allegations-of-interference-by-election-denial-group-during-2022-michigan-recount [https://perma.cc/S4XW-JLYQ] (“An email obtained by American Oversight provides more details about . . . the conduct of EIF challengers who were disturbing the recount process, including by touching election materials, entering certain areas without authorization, or threatening and harassing workers.”); Michigan Election Officials Findings, Informing Democracy: Michigan: 2024 Vote Counting + Election Certification, https://informingdemocracy.notion.site/Michigan-Election-Officials-Findings-105be48fbe6680b594f7cd68f385a174#105be48fbe6680d79c07c4c673a86a7b [https://perma.cc/76CT-9HB9] (last visited Jan. 31, 2025). There are also concerning signs in a minority of counties in Pennsylvania, Georgia, and Ohio,25On Our Radar: Counties of Concern, Informing Democracy, https://www.notion.so/informingdemocracy/On-Our-Radar-Counties-of-Concern-120be48fbe668059a13fcc6e9ffcb4b6 [https://perma.cc/7A6U-HAGP] (last visited Jan. 31, 2025). and of course Arizona and Nevada, though we perhaps will see fewer problems given the swift intervention and active deterrence in those states. And I will say, overall, many of these state officials have been doing a good job of trying to clarify the law and actively deter such action. Interestingly, Wisconsin also surprisingly has fewer individuals and regions of concern that we’ve seen in our research at Informing Democracy,26Id.; Wisconsin Election Officials: Findings, Informing Democracy (last updated Oct. 2, 2024, 3:43 PM) https://www.notion.so/informingdemocracy/Wisconsin-Election-Officials-Findings-108be48fbe6680ce9043d88e846578f9 [https://perma.cc/Y283-4EVQ] (last visited Jan. 31, 2025). though overall there’s a strong undercurrent of election denial in the state,27See, e.g., Henry Redman, Embracing Election Denial, Wisconsin Senate Republicans Vote to Fire Chief Election Official, Wis. Exam’r (Sep. 14, 2023), https://wisconsinexaminer.com/2023/09/14/embracing-election-denial-wisconsin-senate-republicans-vote-to-fire-chief-election-official [https://perma.cc/H5NU-KDD3]; Wisconsin Election Officials, supra note 26. so that may just be a little better hidden than in other places. Overall, we really have to remain vigilant with close monitoring of this step, ensure we are holding county officials accountable through public pressure and quick intervention by state officials, and be ready to intervene with legal action should it be necessary. So to the direct question from this panel: are we ready? I really think the answer is yes. It may get bumpy this fall, but I think at the end of the day our elections are secure and we should have confidence that the system is prepared to handle these disruptions if needed with a little extra vigilance and, possibly in some places, the need for intervention by state officials, voters, and pro-democracy groups, but I really do think voters will retain the last word this election cycle.
*Director of Regulatory Research and Senior Policy Counsel at Informing Democracy. These remarks were presented as part of the symposium “The 2024 Presidential Election: Are We Ready?” at Fordham University School of Law on October 28, 2024. The remarks have been lightly edited, and footnotes have been added, but they retain the form and style of the oral remarks.
