Election certification under threat

State laws provide robust mechanisms outside of the certification process-including recounts, audits, evidentiary hearings before state election boards and election contests in court-to address suspected fraud and errors. These are the legally-designated avenues for resolving the rare cases where genuine problems arise in an election, not the certification process. When county officials stray outside of their lane to perform tasks the law does not assign to them, they are disrupting the administration of state election laws and exposing themselves to potential civil and criminal liability.

For statewide races and races across multiple counties, county certification marks the end of one phase of a multi-step election process, and it must occur by a hard deadline to ensure later state and federal certification deadlines are met. If county officials try to obstruct this process, state and federal laws provide effective mechanisms to compel certification by statutory deadlines and to punish misconduct.

That election certification is a ministerial, non-discretionary function has been a settled principle of American election law since the turn of the twentieth century, when state courts across the country shut down partisan attempts by county officials to refuse to count lawful votes. But some officials emboldened by former President Trump's 2020 election denial movement now seek to weaponize this routine government process, undermining the foundations of our election infrastructure.

Their reasons for denying or delaying certification have often been brazenly lawless. (As used in this report, "refusal to certify" means voting either to delay or deny certifying election results.) For example:

• Couy Griffin, the former county official in New Mexico who a state court removed from office for engaging in the January 6th insurrection, stated: "My vote to remain a 'no' isn't based on any evidence. It's not based on any facts…It's only based on my gut feeling and my own intuition."
• Jerry Forestieri and Timothy DeHaan, two former county officials in North Carolina who the state election board removed from office, said they were voting against certification to protest a federal court ruling from several years earlier that they claimed was "illegal" and "pervert[ed] our election practices." DeHaan admitted "[w]e feel the election was held according to the law that we have, but that the law is not right."
• Ron Gould and Hildy Angius, two current county officials in Arizona, said their votes to delay certification were purely a "political statement" to protest election practices in a different county.

County officials in other states, such as Georgia and Pennsylvania, have offered a veneer of legal justification for refusing to certify. Others have withheld certification based on arbitrary and shifting demands for non-essential election records.No matter these officials' motives or the sincerity of their concerns, the law gives them no "discretion" not to certify.

As the Georgia Supreme Court explained more than a century ago, "[t]he duties of [election] canvassers are purely ministerial; they perform the mathematical act of tabulating the votes of the different precincts as the [election] returns come to them."

In recent years, conspiracy theories about elections and the certification process have contributed to an increase in violence, threats, harassment, doxxing and other forms of intimidation toward election workers. While we strongly advocate using appropriate legal mechanisms to hold accountable any county election official who defies the law, violence and intimidation have no place in our democracy, regardless of any misconduct by government officials.