EXPLAINER: Trying to get politics out of election certifying
Before the 2020 presidential election, certifying election results in the states was routine and generated little public attention. That has changed.
Attempts to delay presidential certification in Michigan in 2020 and primary results in New Mexico earlier this year have brought new scrutiny to a process that typically takes place quietly in the weeks after Election Day.
Members of certification boards have raised unsubstantiated claims of fraud or other wrongdoing, focusing new attention on a process that could be manipulated if either side didn’t like an election outcome.
Whether partisan actors might try to block or delay certification at the local or state level is a growing concern among election officials, both for the upcoming November midterm voting and then the 2024 presidential election. Here is how election officials prepare for certification, who is involved and what might happen if a county refuses to certify its results.
HOW ELECTION OFFICIALS PREPARE FOR CERTIFICATION
Voting is over when polls close on Election Day, but the work to count and verify the results is just beginning. Through the canvass and certification process, local election officials check to ensure all votes were cast and counted correctly before results become official.
The canvass includes checking lists of voters in pollbooks against the number of ballots cast and researching any discrepancies. Those often are due to clerical errors or mistakes such as someone failing to sign the pollbook.
“There are all these little human errors that can happen that could lead to mismatch or discrepancies in the accounting,” said Jennifer Morrell, a former local election official who now advises election offices. “Best practice is to show them and do your best to account for them and explain them.”
It’s this reconciliation that election officials also use to detect potential voter fraud, flagging for authorities any issues such as a voter attempting to cast more than one ballot. During this time, many election offices also test equipment and audit the results to make sure the votes were tallied correctly. Others might take those steps after certification.
Most states have deadlines for when the canvass and certification must be completed.
WHO CERTIFIES RESULTS?
Partisan officials are involved in certifying elections, something experts worry about after nearly two years of conspiracy theories falsely claiming the 2020 presidential election was stolen from Republican former President Donald Trump. There is no evidence of widespread fraud or manipulated voting machines, and reviews in battleground states confirmed Democrat Joe Biden’s win.
In 45 states, the local boards that handle election certification are either party-controlled or commissions where the members are elected on a partisan basis, according to research by the advocacy group Election Reformers Network.
Once certified at the local level, results are sent to the state for further certification. In virtually every state, officials with ties to political parties play some role, according to the group. This typically involves a board comprised of statewide officials such as the secretary of state and governor, although in some states it’s the secretary of state who has sole authority to certify an election. Hawaii is the only state where certification is overseen by a nonpartisan chief election official appointed by a bipartisan commission.
THE PROCESS OF CERTIFICATION
Certification involves a public meeting during which election officials report to the local board charged with certifying the results. Those reports detail the number of voters who cast ballots, how many ballots were cast and counted, and any discrepancies that surfaced during the canvass.
It’s a ministerial task, meaning those handling certification do not have authority to investigate allegations of fraud or other wrongdoing. That’s up to prosecutors and the courts, which handle challenges filed by candidates or parties. Judges can delay or halt certification if there are questions surrounding an election.
That did not happen in 2020, as numerous judges including some appointed by Trump dismissed his claims.
DISPUTES ARISE AMID PARTISAN INFLUENCES
Local certification is typically handled by a county commission or board of elections. In some places, a separate board of canvassers is formed to handle certification. In Michigan, the county canvassing board is comprised of two Republicans and two Democrats. In Wayne County, which includes Detroit, Republican board members initially voted against certifying the 2020 election but later reversed course.
The Republican members then sought to rescind their vote to certify after receiving calls from Trump. State officials said there was no way to do that, and ultimately the election was certified at the state level.
“The law is very clear that the board must certify,” said Michigan Secretary of State Jocelyn Benson. “It doesn’t say they may or can consider, they must. And so we have the law on our side.”
If such a dispute arises again, the state Board of Canvassers has the authority to review and certify a county’s election, Benson said. If the state board, which is likewise comprised of two Republicans and two Democrats, similarly deadlocks, Benson said she would seek a court order to compel certification.
That happened recently when the state board deadlocked along partisan lines on whether an abortion measure should appear on the November ballot, and the state supreme court subsequently allowed it.
HAS THIS HAPPENED ELSEWHERE?
Commissioners in a rural New Mexico county initially refused to certify the results of their June primary. They cited distrust of the voting systems used to tally the vote even though the county’s election official said there were no problems.
A tiny county in Nevada didn't certified its primary results until it completed a hand count of all ballots.
In the New Mexico case, Secretary of State Maggie Toulouse Oliver petitioned the state Supreme Court, which issued an order directing the local commissioners in Otero County to certify. They ultimately did so in a 2-1 vote. The dissenting vote was by commissioner Couy Griffin, who had dialed into the meeting from Washington, D.C. Hours earlier he had been sentenced for entering restricted grounds during the attack on the Capitol, where Congress was meeting to certify Biden's victory.
During the meeting, Griffin acknowledged he had no evidence to support his vote against certification, saying, “It’s only based on my gut feeling and my own intuition.” He has since been removed from office.
If the commission would have refused to abide by the court order, the state was prepared to seek another order to allow the state board to certify the county’s results, said Alex Curtas with the secretary of state’s office.
“We weren’t just going to let some 8,000 people who had voted in Otero County be disenfranchised because their county commission refused to certify their votes,” Curtas said.
GUARDRAILS TO PREVENT PARTISAN INTERFERENCE
Election officials in various states say they are prepared to intervene and have the legal means to compel certification if needed.
“No county official can just say that she or he just feels or believes or has a vibe or a hunch that something went wrong and feel free to just not certify an election,” said Minnesota Secretary of State Steve Simon.
In Colorado, a new law requires the secretary of state to review any results not certified by a local board by the deadline and certify them if there is no reason not to. But most states have to rely on the courts.
Sylvia Albert, director of voting and elections with Common Cause, said voter advocacy groups are prepared to intervene should partisan actors interfere with certification without justification or if a secretary of state refuses to seek a court order compelling a local board to act.
“That is why we are here, and there will be lot of advocates and lawyers willing and able to step in and file if the secretary is not interested in using their authority or their position to ensure that the votes of their constituents are counted,” Albert said.