NEW: Policy recommendations for improving counting + certification
How to solve for vulnerabilities in our election administration
During the 2024 election cycle, Informing Democracy tracked potential vulnerabilities related to counting and certification processes across key states.
With this understanding of where potential weaknesses exist in the system, we have put together state-based policy recommendations — ideas for how to amend, expand, or introduce election laws to enhance or protect critical democratic processes for counting and certification. Each state memo dives deep into recommendations based on local election administration law, customs, and past actions.
Below we detail some of the themes within the recommendations shared across multiple states. You can also request access to full state recommendation memos for Arizona, California, Florida, Georgia, Michigan, Nevada, Ohio, Pennsylvania, Texas, Virginia, and Wisconsin by emailing info@informingdemocracy.org.
Policy Recommendation: Cross-State Themes
Across states, there are some noticeable trends concerning changes to election law that would strengthen our voting systems. Below, we’ve highlighted three examples of these policy buckets, along with examples from a handful of states on how these policy recommendations might impact counting and certification in the state.
Before diving into these recommendations, it’s important to note the reality that most states face serious challenges when it comes to improving election laws and systems. The significant opposition to improving our election systems is a sign that the anti-democracy movement is alive and well and looking to continue to undermine confidence in our elections instead of taking up reforms that would make counting and certification more democratic and more secure. We make these recommendations with the hope of calling people in to join in the work endowing strength and confidence in our election systems.
Policy Recommendation #1: Make Certification Explicitly Ministerial
There are several states across the country where election certification is not explicitly noted in the law as a ministerial, meaning a mandatory and non-discretionary duty. While most legal scholars and courts who have faced this issue have concluded that certification is ministerial and non-discretionary, the lack of explicit language leaves open the possibility that bad actors might try to claim that certification is a discretional duty and therefore refuse to certify legitimate election results.
This obstruction is unlikely to be successful. However, even if they ultimately fail, these arguments by bad actors seeking to undermine elections or refusing to accept legitimate election results can cause delays in certification, creating chaos and confusion among voters, and ultimately undermining trust in our election systems.
Across many states, it is strongly implied in the law that certification is a ministerial duty, but not explicitly stated. We recommend adding explicit language, not because it will change the content of the law, but because it will reduce the possibility of further bad faith challenges and public confusion over the issue.
Ohio, Florida, Nevada, and Georgia are four states where we recommend this change.
In Ohio and Florida, reasonable readers of the current statutes would understand that certification is mandatory. However, adding language to explicitly state that certification is ministerial could prevent future attempts to derail the certification process.
In Nevada and Georgia, there is current case law holding that certification is ministerial. Nonetheless, in Nevada, the word ministerial does not appear in the law. This presents the risk that future state prosecutors or courts, particularly if they were infiltrated by bad actors seeking to manipulate election outcomes, could attempt to use this apparent ambiguity to try to re-interpret Nevada law on certification in the future. Therefore, we recommend the Nevada legislature add explicit language stating that certification is ministerial in the state.
Controversy over whether certification is ministerial has been notable in Georgia. The case in Georgia where certification was held to be ministerial is currently still on appeal. Additionally, the order in that case is only controlled in Fulton County, GA. Therefore, to fully settle this ongoing controversy we recommend the Georgia General Assembly add language to the statute affirming that the interpretation in this case that “superintendents must certify” and they “must do so by” the deadline properly interprets the existing statutory language on certification.
Policy Recommendation #2: Increase Funding for Elections Departments
Across the country, election departments are struggling to meet the rising costs of election administration. Compounded by large-scale turnover among election officials, departments are struggling to keep up with the costs of training, new technology, and other demands. This lack of funding can result in human and technological errors, both of which can undermine confidence in our election systems.
Nevada has seen massive turnover in county election officials, especially in Washoe County. While it is not proven that any mistakes or errors were tied to new staff, some errors coming out of Nevada helped foster distrust in the election process. This included incidents like ballots being found in storage lockers, uncounted. Additional funding for election administration in Nevada could support training new election officials to help reduce instances of human error.
In Florida, increased budgets could help ensure the Florida Division of Elections has the resources to handle the IT demands of Election Day. In 2024, there were intermittent outages of the Voter Information Lookup website hosted by the Florida Division of Elections that resulted in some Florida voters having trouble determining the location of their assigned polling precinct on Election Day. Ensuring this department and others have sufficient funds would help reduce these types of issues that impact voters.
These are just a couple of examples of a much larger systemic issue. Elections departments around the country need increased funding to meet these increasing costs and to continue to face challenges and threats associated with administering elections in the modern era.
Policy Recommendation #3: Implement Ways to Speed Up Tabulation
Vote counting processes around the country are executed with dedication and integrity, ensuring that no matter how long the results take, we get accurate election results that reflect the will of the people. However, in the modern information environment, where people expect immediacy, delays in ballot counting can sow distrust in our elections. Extended time after polls close or delays in counting give bad actors more time to spin false narratives or push conspiracy theories. We cannot sacrifice accuracy or voter access in the pursuit of a faster count. However, within this framework, there are additional steps that states can take to help speed up the process of tabulation. Many are methods that have been effective in other states. These can come in different forms, like pre-processing procedures or longer tabulation hours.
For example, Wisconsin does not currently allow for pre-processing of absentee ballots, a common practice in other states. This means that election officials have to wait until Election Day to process absentee ballots. This has, in the past, led to baseless accusations about delays in results and late-night “ballot dumps,” particularly in Milwaukee. Almost all other states allow some kind of preprocessing of absentee ballots. For example, in Ohio, processing may begin on the day after the close of voter registration. In Michigan, processing can begin eight days before Election Day. This past legislative session in Wisconsin, a proposal to allow processing on the Monday before the election passed the Assembly but died in the Senate. This proposal should be taken up again to alleviate the strain on election officials and prevent conspiracies about vote total delays.
Similarly, Pennsylvania only allows for counties to begin the pre-canvassing mail ballots when polls open on Election Day. While election offices can get a small head start in the morning, larger counties are still often overwhelmed by the backlog of mail ballots while juggling other Election Day responsibilities. A proposed recommendation would be to extend the period counties can pre-canvass mail-in ballots to several weeks before the election.
Due to the size of the state and electorate in California, tabulation can extend well past other states. To help speed up counting, state law could mandate and fund staffing for longer tabulation hours. The current law allows local officials to tabulate for as few as 6 hours a day, excluding weekends and holidays. Other states either do not have a minimum hours requirement (but a shorter deadline to finish tabulation and canvass) or spell out more working hours. Requiring counties to work longer hours and on weekends will likely expedite the process. California could also mandate pre-processing of vote-by-mail ballots, a process that is currently optional. Mandating the pre-processing of vote-by-mail ballots would quicken the overall tabulation process.
For more detailed recommendations by state, please reach out to info[@]informingdemocracy.org to get access to the complete State Recommendation Memos.