Failure to certify is not an option.
A deep dive into election certification — and how we can fight back against anti-democracy narratives.
One of the most pressing questions surrounding this election’s post-vote period, one getting increased scrutiny and national attention, is certification. Specifically, what happens if counties fail or flat-out refuse to certify? Here, we lay out in exhausting detail why refusing to certify is not an option.
As post-vote interference has gone mainstream, with test-balloon attempts to refuse certification in past elections, we’ll likely see these same attempts during this election cycle. So the open question remains: What impact could refusal to certify have on the results of this election — or when results are made official? And critically, what can we do as pro-democracy advocates to prevent these bad actors from impacting the results?
Below, we’ve outlined answers to some of the most commonly asked questions about certification, and the actions we can take to protect our elections from those seeking to threaten democracy. It’s important to remember that voters decide elections — not election administrators. The mere discussion of certification is designed to sow doubt into our election systems. So having clarity about what role officials play is critical to protecting the will of voters.
Q. What is certification (and what is it not)?
Before we dive into what election administrators can and can not do with regards to certification (and how to prevent bad actors), let’s take a minute to define what certification is — and what it is not.
Certification is a written statement attesting that the tabulation and canvassing of the election is complete and accurate. Certification is just one of many steps in the post-vote election administration process, a process with many checks and balances built into the system to ensure an election is an accurate representation of the voters.
What certification is not is a place to contest the results of an election. All states have some provision for election contests, which, unlike certification, are a proper venue for dealing with any irregularities or genuine concerns about election integrity and may also be appropriate as a secondary route for resolving issues with certification, should they arise.
To learn more about the definition of certification and how that differs across states, see our report on the Language of Elections. To learn more about contests in each state, see our state reports (with more states rolling out soon).
Q. Do counties have the authority to refuse to certify the election?
The short answer is no. In all of the states that Informing Democracy has researched so far, certification at the county level is ministerial, or non-discretionary. That means that the government officials responsible for certification lack discretion to refuse to certify the election results.
In Arizona, the County Boards of Supervisors and the Secretary of State have no authority to change vote totals, reject the election results, or delay certifying the results without express statutory authority or a court order.
In Georgia, the statute clearly provides that the superintendent “shall” tabulate the figures. . . and sign, announce, and attest the same, as required…” A new rule passed by the State Board of Election, however, provides them with the new power to “examine all election related documentation created during the conduct of elections prior to certification of results.” This rule directly conflicts with prior law and is currently being challenged in court.
In Michigan (see our report soon!), the law is explicit: according to the state constitution and statute, it is the “ministerial, clerical, and nondiscretionary duty” of each Board of County Canvassers to certify election results based on statements of returns alone.
In Nevada, recent attempts to violate this duty have affirmed that certification is a ministerial duty.
In North Carolina (see our report soon!), the Executive Director of the State Board of Elections has made it clear that the duty to “authenticate” or certify the election results is ministerial.
In Ohio (see our report soon!), a plain reading of the statutes governing these processes and state case law suggests there is little discretion left to election officials in carrying out their duties.
In Pennsylvania, the statute provides no exception for officials to delay certification.
In Wisconsin (see our report soon!), the law leaves no room for discretion by election officials in determining whether to canvass and certify an election.
Not only is it not permissible, but in some states refusal to certify is flat-out illegal. Some examples of criminal provisions that might apply include:
In Arizona, where refusal to certify is a class 3 misdemeanor. That offense rises to a class 6 felony if the individual refusing to perform an election duty is in fact an election officer acting in their official capacity. A.R.S. § 16-1010.
In Georgia, where elected officials and officers of political parties can be charged with a misdemeanor for “willfully neglect[ing] or refus[ing]” to perform a duty required by Georgia law. O.C.G.A. § 21-2-596; see also O.C.G.A. § 21-2-2(30) (defining “public office”).
In Michigan, where it is a criminal offense for a person to “willfully fail to perform a duty” imposed on the person by the election code or to “disobey a lawful instruction or order” given by the Secretary of State, county or local Elections Commission, or Board of Election Inspectors. Mich. Comp. Laws Serv. § 168.931(1)(g).
In Pennsylvania, where election officials could be charged with a misdemeanor for certain illegal conduct or their failure to fulfill their statutory duty. The applicable violations are all misdemeanors, which, while less serious than felonies, can still carry jail time and hefty fines.
Q. Are there states we should be concerned about?
We’ve got our eyes on Georgia, where though the statute clearly defines certification as ministerial, a majority of election deniers on the State Election Board recently passed a rule that implies that County Boards of Election (and other Superintendents) may have some discretionary authority. This newly passed rule provides for “reasonable inquiry that the tabulation and canvassing of the election are complete and accurate, and that the results are a true and accurate accounting of all votes cast," before certification. This new rule isn’t necessary. Georgia already has many steps to confirm the completeness and accuracy of the vote, including mandatory risk-limiting audits. This new rule contradicts existing statutes and past precedent — and is currently being challenged in court.
We are continuing to monitor this for developments, as well as continuing to monitor additional activity from the GA State Board of Elections. Make sure you’re following us on Twitter for updates during the post-vote period.
Q. What can we do to prevent the threat of refusing to certify?
Proactive deterrence must be our number one option. We must remind county election authorities of their duty under the law and the civil (and in many cases, criminal – more on that above) penalties that exist should they fail in that duty.
In the past, Secretaries of State and Attorneys General have been able to prevent county board members from voting against certification. In other cases, they have been able to persuade board members to quickly reverse their decisions. This kind of proactive deterrence has been effectively implemented in Arizona, Nevada, and Michigan. The threat of criminal prosecution has, not surprisingly, proved a particularly effective tool, too.
As refusal to certify is illegal in most states, it’s also important to make county officials aware of these provisions and their potential culpability before Election Day to serve as a deterrent and possible preventative measure.
It’s also critical to combat the narrative that our elections can be undermined in this manner. The mission of these anti-democracy actors is to sow distrust and discord in our election systems. But as we’ve outlined above, there is law, legal precedent, and process to handle these types of cases. This is not a lawless land. We must set the record straight and refuse to let these fake narratives take hold.
Ensuring the ultimate outcome of this election is not just a matter of understanding and implementing the law — it comes down to the narrative, too. Our hope is to help support our partners in that work by providing a depth of research to counteract false narratives. While we know there are some actors who wish to subvert the will of the voters and upend our democratic elections, it’s critical to be clear that they will fail.
Q. Beyond deterrence, what other actions can be taken against officials who threaten or refuse to certify?
Two main categories exist within the law to take action when officials refuse or threaten to certify: 1) direct action by state officials; and 2) lawsuits via the courts.
Direct Action by State Officials
In some states, state election officials can compel state officials to do their job and follow the law, and may be able to remove them if they refuse. For example:
In North Carolina, the State Board can directly remove county board members for “incompetency, neglect or failure to perform duties, fraud, or for any other satisfactory cause.” N.C. Gen. Stat. § 163-22(c).
In Wisconsin, the Wisconsin Election Commission (WEC) has the authority to investigate any election official’s actions or inactions. Upon the completion of that investigation, they may order the election official to confirm the official’s conduct to the law, restrain from taking any action inconsistent with the law, or require the official to correct any action or decision inconsistent with the law. Wis. Stat. Ann. § 5.06(4),(6).
In Georgia, the power is a bit more tenuous, but the Secretary of State oversight power over how counties conduct elections, including with regard to canvassing, and certification of election results and county election administrations do not have leeway to ignore or deviate from the Secretary of State’s orders. O.C.G.A. § 21-2-50(b) (referring to the Secretary of States as the “state’s chief election official”); see also Scott v. Schedler (5th Cir. 2014) at 839 (holding chief election officials have “enforcement power” to remedy NVRA violations).
In some circumstances, state officials may also be able to proceed with certification without relying on county-level officials. For example in Michigan, this would involve the State Board of Canvassers certifying on behalf of the county in lieu of the county authority. In other states in some extreme cases, the state might certify without the offending county’s results or to avoid disenfranchisement of a subset of voters might try to proceed with certifying unofficial but accurate totals from such counties. The availability of this power and the mechanics vary considerably from state to state.
Action in the Courts
Action via the courts is available in all states and may be both necessary and preferable over direct action, especially if that action might lead to voter disenfranchisement.
A Writ of Mandamus — also known as a Writ of Proceeding in Nevada or a special action in Arizona — can compel a government official to take a mandatory or ministerial action. In all states we researched, certification is clearly ministerial, so this remedy should be available to voters or state officials — or often, both.
In Pennsylvania and Nevada, we have seen recent lawsuits asking for this remedy though they were both rendered moot before a verdict when county officials reversed course and certified.
We’ll be closely monitoring actions and activities around certification in the lead-up to and during the post-vote period. That includes monitoring known county election officials who are bad actors, who have either made comments about certification or threatened to refuse to certify in the past. We’ll also be monitoring the latest in court cases and laws related to certification. And of course, the certification process in the post-vote period.
You can stay up to date by subscribing to this newsletter and following our Twitter account, where we’ll be sharing all post-vote updates.
If you have further questions on certification — or any of the post-vote processes — don’t hesitate to reach out to info@informingdemocracy.org. If you're a reporter with questions about certification or want to schedule a briefing with your newsroom, please email Ryan Thomas at ryan@zpstrategies.com.