Failing to certify election results may disproportionately target voters of color and violate the Voting Rights Act

Introduction

Historically, local officials who have refused to certify valid election results targeted voters of color and tried to dilute their voting power in the process. And although most state lawsclearly prohibitrefusing to count all ballots and certify election results, there is a new trendsince 2020 of some rogue local election officials doing so anyway. A CREW analysis below shows that voters of color have higher levels of potential political power in five states where noncertification of the election has recently been threatened.Noncertification is therefore an obstacle on our nation's path to multiracial democracy, and may violate the Voting Rights Act.

The bipartisan Electoral Count Reform Act of 2022 (ECRA)was enacted to improve the process of certifying presidential election results at the national level and sets helpful new procedures and guardrails, but it does not directly apply to the problemsarising at the county level. The research in this series therefore examines county-level threats to refuse to certify, and uncovers relevant Census data, racialized rhetoric and disinformation and a totality of circumstances that include racial disparities in this context in several states. As will be shown below, some (but not all) of the recent election certification issues have occurred in states and counties with higher proportions of voters of color, echoing long-standing patternsof attacks on voting rights. The Voting Rights Act may apply to these circumstances and can and should be used wherever possible to protect all Americans' right to have their votes counted.

As CREW reportedthis summer, there were eight stateswhere certification was under threat due to local officials refusing to certify elections since 2020. The actions that began in Waynesboro, Virginia on October 4thshow that the threat may occur in other states. This series of reports will document how refusals to certify could dilute the value of the votes of Black and Latino voters on a state-wide level in Georgia and Arizona, respectively, and how Black voters have been similarly targeted in Wayne County, Michigan. (Further research may also address other states.) This series will also demonstrate how the Voting Rights Act (VRA) should be deployed and revitalized to fully protect voters of color in these instances and any similar instances going forward. Certification is a looming issue in the upcoming presidential election, but even if it is resolvedin the states where it arises this year, considering the high levelsof election denialism, the new trend is not going away and it is likely to continue into the future.

This first edition of this series shows how refusal to certify is an old problemthat historically targetedBlack voters, which, like many voting rights issuesin the United States, is now rearing its head in new ways. Because refusal to certify threatens the right to have one's vote counted equally, we need the full protections of the Voting Rights Act of 1965 (VRA) to address it. VRA Section 11(a) offers strong protectionsthat should be immediately applied to guarantee certification if local election officials willfully refuse to do so. Today's first edition also includes a section analyzing some demographic data showing the potentially inequitable impact of refusal to certify.

Considering the impacts on multiracial democracy, Part 2 of the series will explore how Section 2 of the VRA, which is "the permanent, nationwide ban on racial discrimination in voting," could also potentially apply to better guarantee that county election officials perform their nondiscretionaryduties to certify the election results and ensure that they include all voters.

Part 3 of this series will focus on Georgia and the former preclearance provisions under Section 5 of the VRA, which the Supreme Court guttedin 2013. John Lewis called Section 5 the "heart and soul" of the VRA, and in the eleven years since, the decision has proven to be devastatingly anti-democratic for voters of color, including in Georgia where certification has become an issue. The research will also show how Section 5 must be restored and revitalizedin order to move our nation forward to protect certification and multiracial democracy for the next generation.

How did we get here?

Since 2020, county election officials in eight states unlawfully refused to certifyvalid election results, and there is a new threat in Virginiathat also illustrates how "local procedures have become a flashpoint." There have been ongoing concernsthat these and other local election officials may refuse to certify the 2024 election results at the county level in Arizona, Colorado, Georgia, Michigan, Nevada, New Mexico, North Carolina and Pennsylvania, which could in turn impact a state's ability to certify. Pro-democracy groupsand state election officialshave been fighting to guarantee certification by all of the counties in each of these states, and this massive effort has been largely successful, as state law is quite clearthat certification is a nondiscretionary duty. Although we are very close to the election, state court wins in Georgia in Octoberand previous criminal indictmentsof rogue election officials in Arizona show that the rule of law will prevail. But despite the lawbeing abundantly clear, on October 4th, two election officials in Waynesboro, Virginiafiled a lawsuit threatening to block certification of this fall's election. Even though Waynesboro voters have already filed a countersuit, the fact remains that certification of the presidential electionresults is much more precarious than prior to 2020.

Following the January 6th insurrection, Congress passed the bipartisan Electoral Count Reform and Presidential Transition Act in 2022(ECRA), which amended the Electoral Count Act of 1887 and the Presidential Transition Act of 1963, to help guard against future attempts to overturn presidential election results. 2024 is the first presidential election in which the firm deadlines for state certification set by the 2022 ECRAwill apply. Under the new Act, during presidential elections, each governor(and the DC mayor) must certify their state's results and send them to Congress by December 11th, 2024, six days beforethey cast their states' votes in the Electoral College. However, the legislation does not govern the process of county-level election boards who must first certify. It also does not govern non-presidential elections.

As the nation waits to seewhether some bad faithelections officials will try to withhold or delay certification of the 2024 election, we must also acknowledge that many recent attempts to manipulate the results of elections target communities of color. As historians Michael Eric Dyson and Marc Favreau recently documented, these struggles are part of a pattern of trying to suppress the voting power of women and people of color. U.S. voting rights historyfurther shows that the attempted dilution of the value of some citizens' votesat the state and local level should be addressed by the Voting Rights Act. The recent pattern of local election officials threatening not to certifyvalid votes poses risks to the future of an inclusive, multiracial democracy on a national level. Unfortunately, history is repeating itself.

In 1922, shortly after the 19th Amendment was ratified, the mayor and city council in Albany, Georgia attempted to exclude the votes of over 250 women, alleging that they were not legally qualified to vote. The state supreme court heldthat the officials were acting as a canvassing board whose duty under Georgia law was to certify the election results based on the vote count, that such duty was "purely ministerial" and "mathematical" and that canvassing boards may not evaluate voter qualifications or consider any other evidence except for the vote returns.But since 2020, rogue county election officials in Georgia have threatened to defy it.

How the Voting Rights Act can help ensure certification today

The current rhetoric of election denialism and manipulations targeting the rising influence of voters of color falls right within another anti-democratic fault line in U.S. history. It was not until the Voting Rights Act of 1965that the promise of equal access to the vote regardless of race was guaranteed. The VRA's protections for certificationare not as well-known as other sections of the landmark law. This seminal civil rights legislation defines the vote and voting rights protected to include"all action necessary to make a vote effective, in any primary, special, or general election, including, but not limited to… casting a ballot, and having such ballot properly counted and included in the appropriate totals of votes cast." These broad guarantees of the right to vote were necessary then and remain necessary now.

Following the passage of the VRA, there was an immediate backlash against recently enfranchised Black citizens. In 1966, Sheriff James G. Clark, Jr.-who had orderedthe Bloody Sunday attack on Edmund Pettus Bridge in Selma, Alabama-ran for re-election and sought to interferein the election to prevent the candidate backed by Black citizens from winning. Clark persuaded county officials to eliminate valid ballots cast by Black voters, claiming clerical and technical errors. But refusal to certify their votes was in violation of Section 11(a) of the newly enacted VRA, which prohibits failure to count and report all votes and provided that:

"No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and reportsuch person's vote."

Section 11(a) of the VRA only applies to "willful" refusals to "tabulate, count, and report" votes, but this willful refusal has arguably occurredin recent years. Section 11(a) claims can lead to civil or criminal penalties of up to $5,000 and five years' imprisonment. Importantly, this section of the VRA provides for injunctive relief to compel certification. In 1966, the Alabama federal court heldthat: "The ban against refusal to tabulate the votes of those registered under this Act and the grant of jurisdiction to issue injunctive relief to forbid such refusal" was constitutional. It decreedthat the county officials were "restrained and enjoined from failing and refusing to tabulate the votes in the six boxes," and ordered that "such tabulation shall be conducted in strict accordance with the findings of fact and conclusions of law entered herein."

This historic case out of Alabama is emblematic evidence that the VRA requires that all valid votes must be counted and certified.Today, if members of county-level boards of elections knowinglyviolate state lawand threaten or refuse to certify election results based on their views and theories about the validity of the votes, they could be charged with violation of Section 11(a) of the VRA, and a federal court could require counting and certification of the votes. This is an important back-up plan to ensure certification, this year and into the future. Although state law makes refusal to certify illegaland even subject to criminal penalties, state law doesn't always providea straightforward path to compel certification. Even when it is highly effective, but forthe extreme effortof voters fighting for their rights and their advocates repeatedly litigatingin state courts, the election results might not be certified and equal accessto the vote would be significantly eroded.

Arizona Federal District Court Judge Michael T. Liburdi (appointedin 2019) recently issuedan injunction making clear the state could not certify election results without first receiving certification from each of the Arizona's 15 counties, reasoning that state certification without one county's votes would violate the fundamental right to vote and the core constitutional promise of one-person/one-vote. State legal remedies such as emergency court orderscompelling certificationor the threat of criminal chargesagainst recalcitrant county officials are likely to be effective this year. But considering that only one county's refusal to certify could cause a state to miss the December 11th deadline to deliver its certificate of ascertainment to Congress under the Electoral Count Reform Act, the Department of Justice (DOJ) should also be poised to secure the vote by utilizing VRA Section 11(a) to enforce county election officials' duty to certify in any state.

Private plaintiffs such as impacted voters can also enforcesection 11(a) against state officials through civil lawsuits under 42 U.S.C. § 1983, which provides a cause of action against state actors such as local election officials who would unfairly refuse to certify. The VRA also includes in its provisions a private right of actionthat impacted voters could use to enforce the guarantees of Section 11(a), but because voters' right to sueis unfairly under attack, it is preferable that the DOJ uses its clear authorityto compel certification when needed.

Section 11(a) requires no showing of racial animus and applies whether or not there are discriminatory impacts. Its use would better ensure democracy for us all, and it may also help guard against dilution of the votes of communities of color on a national level. However, an 11(a) claim rests upon showing that the government official "violated a known duty," simply meaning that they knew about their nondiscretionary, mandatory duty to certify but refused to (or threatened to refuse to) perform their part in a functioning democracy. Refusal to certify based on "bare allegation" of improprieties would violate the statute, but good faith disputes might not. If the high standard of "willful" refusal to certify cannot be met, other provisions of the VRA may also apply.

The potentially inequitable impact of failure to certify

Compared to their potential political power on a national level, voters of color have higher levels of potential political power in five of the nine states wherethere are recent threats of noncertification.The chart of Census data below shows that these five states (AZ, GA, NM, NV, VA) have higher proportions of voters of color than the national average, and if any of them did not certify by December 11th, the impact of voters of color could be diluted on a national scale.

The above are conservative estimates as they do not include Native Hawaiian and Pacific Islander or multi-racial eligible voters, as that is beyond the scope of this preliminary research. However, the data above shows that in these states where certification is under threat, there is an emerging majority of voters of color, as the percent of White voters is below the national average in each of these states.

The data illustrate that if Arizona, Nevada or New Mexico could not certify their state results by the deadline, this would exclude the votes of states with a higher than average proportion of Latino voters. Nevada also has one of the highest portions of Asian American voters in the nation (and Asian Americans are the fastest-growing voter block in the country), so the power of their votes would also be diluted. Even among other states in the West, New Mexico has one of the highest proportions of Native American voters in the nation, so if New Mexico did not certify, their vote would also be diluted. If Georgia or Virginia were to fail to certify, Black voters would be disproportionately impacted and the value of the Black community's votes diluted on a national scale. No state should be excluded from the Electoral College count that is needed to certify the results on January 6th, but in these states, noncertification would disparately harm voters of color.

The potential collective strength of voters of coloris also evident. For example, in Arizona, Latino and Native American votes would be diluted on a national level; in Nevada, Asian andLatino American votes would be similarly collectively diluted; and in New Mexico, Latino and Native American votes would be diluted.

It is also notable that in New Mexico, the potential impact on Latino voters alone is over three times the national average (44% v. 13.5%), and the potential impact on Native American voters is over 14 times the national average (8.7% v. 0.6%). Similarly, in Georgia, the potential impact on Black voters alone is nearly three times the national average (32.2% v. 12.4%).

Further, racial disparities and racialized impacts may be evident at the county level, such as in the case of Wayne County, Michigan. In 2020, two members of the Wayne County Board of Canvassers voted against certificationof the election results, but changed their mindafter public outcrythat they were targeting majority-Black Detroit. Those circumstances will be further explored in Part 2 of this report series, and in the meantime, relevant demographic data may be found below:

In the case of Michigan, although the state-wide electorate is highly majority-White, the Wayne County electorate is 26 points less (78.3% v. 52.3%). Concurrently, the state-wide Black electorate is about one point (0.8%) higher than the national average, and the main seat of Black voters is Wayne County, where nearly 40 percent of eligible voters are Black. Further, of the one million Black voters who live in Michigan (1,005,660), nearly half (498,015; 49.5%) live in Wayne County. Similarly, the percent of Latino eligible voters in Colorado(16.7%) is higher than the national average (13.5%), and the proportion of Black voters in North Carolina(21.4%) is higher than the national average (12.4%), even though the percent of White voters is higher than the national average in these states.

Turning back to Michigan, another dataset illustrates that the great majority of Black people living in Wayne County live in Detroit. Looking at total population from the 2020 Census, 496,534 Black persons lived in Detroit, and 674,782 lived in Wayne County. This decennial Census dataset shows that nearly three out of four (73.6%) of Black people living in Wayne County live in Detroit; therefore, targeting Detroit would result in significant racial disparities.

Part 2 of this series will drill down further at the local level and analyze the ways in which Black and Latino voters have been targeted in Arizona and Michigan, through the lens of Section 2 of the VRA. Part 3 of this research series will also examine similar data in Georgia, through the lens of the former preclearance provisions of the VRA under Section 5 of the VRA. In the meantime, we urge that the section discussed above-VRA Section 11(a)-be applied as a tool to protect democracy when it is relevant and needed.

Public link

Please use the above public link if you want to share this noodl on another website.