It is unlawful for election officials to refuse to certify election results.
By Rebecca Mears, J.D.
Director, Democracy
Center for American Progress
Introduction
The U.S. election system features checks at every step of the process to ensure only lawfully cast ballots are counted. From the poll workers checking in voters at polling locations, to poll observers reviewing the process, to the trained election officials who verify the validity of each ballot cast, every step helps ensure our elections are accurate and secure.
This column explains one less understood aspect of the postelection process: election certification.
What Is Election Certification?
Put simply, election certification is the point in the process when officials prepare a statement to report the final vote totals for each candidate. It can be thought of as the period at the end of a sentence, or like a certificate acknowledging that someone just completed a training course.
By the time the certification step is reached, vote totals have already been through a rigorous system of checks by election workers to ensure that only lawfully cast ballots have been counted. This includes reviewing mail ballots and provisional ballots; examining returns from polling locations and ensuring that they reconcile with poll books; and ensuring there is a clear chain of custody for all voting supplies, equipment, and ballots. These verified totals are then sent to election officials so they can prepare a statement to report these totals as the final results of the election. This statement and reporting of final results is known as election certification. The hard work and verification have already been completed by this point; this is just confirmation in writing.
Election certification is not the avenue for dealing with unfounded claims of fraud or faulty voting machines; if there are indeed legitimate concerns, there are other aspects of the election process designed to address these concerns. For example, states have postelection audit processes in place to confirm that voting machines counted votes accurately. If an election is particularly close such that a few votes could sway the results, a recount can be held to double-check the vote count. If, after all those checks, a candidate believes that something has gone awry and has evidence to support their concern, they can file a lawsuit and contest the election in the courts.
Election Officials Must Abide by the Law
Election certification is a routine administrative task. Unfortunately, some partisan actors have sought to turn this process into something it’s not by encouraging officials to overstep their legal authority and delay or even refuse to certify results because of unfounded conspiracy theories. Since 2020, more than 30 local election officials have attempted to override the will of the people by threatening to refuse, or outright refusing, to certify election results.
For example, in Arizona, the Cochise County Board of Supervisors refused to certify the November 2022 midterm election results by the legal deadline. The two supervisors who refused to certify the results publicly cited concerns over unfounded allegations that the machines used in the election had not been properly certified, despite the fact that the state’s elections director testified that the machines had, in fact, received proper certification. However, one of these supervisors later admitted that the unfounded allegations about machines served mostly as a pretext and that her vote against certification was actually to protest the results in an entirely different county. The Arizona secretary of state filed a lawsuit explaining that Arizona law requires the board to certify the results, as their duty is mandatory. At the court hearing on the matter, the judge ordered the board to complete certification explaining the board’s duty was “nondiscretionary.” Later, the attorney general of Arizona brought criminal charges against the two supervisors who had unlawfully delayed the certification for their actions; just a few days ago on October 21, 2024, one of the supervisors pled guilty.
As another example, in New Mexico, the Otero County Commission refused to certify the county primary election results in June 2022. The commissioners cited concerns with the accuracy of the voting machines, echoing prominent election conspiracy theories. The New Mexico secretary of state filed a lawsuit with the state Supreme Court explaining that the commission had a mandatory duty to certify the results under the state’s laws. The court agreed and ordered the commission to certify the election results.
Election officials who act outside the scope of their legal duties and attempt to subvert the will of the people are dangerous. Besides being contrary to foundational American ideals, such attempts are also unlawful. In addition to state laws concerning election certification, federal law—specifically Section 11(a) of the federal Voting Rights Act—prohibits officials from failing to tabulate, count, and report lawfully cast votes.*
Put simply: Election officials must abide by the law. Acting outside the law to refuse to certify election results is illegal.
Conclusion
Partisan actors are spreading conspiracy theories about this election that are obscuring the real danger: rogue election officials who ignore the law and refuse to certify election results in an attempt to overturn the will of the voters. In the midst of this misinformation, one thing is abundantly clear: Election officials are no different from anyone else; they must abide by the law.
* For example, in the case United States v. Executive Committee of Democratic Party of Dallas County, Alabama, officials had refused to tabulate and include six ballot boxes in the certified election results, claiming the boxes did not comply with certain technical state requirements. The U.S. Department of Justice filed a lawsuit asserting that Section 11(a) of the Voting Rights Act required these votes to be counted as part of the certified results. The court concluded that “pursuant to the spirit and intent of both Alabama and Federal law,” the ballots must be counted and ordered the committee to “re-declare and recertify the results” of the election based upon the inclusion of the six ballot boxes in the new tabulation.
Originally published by Center for American Progress, 10.25.2024, republished with permission educational, for non-commercial purposes.
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