Day: October 28, 2024

Editor’s note: This article is part of a series from leading experts with practical solutions to democratic backsliding, polarization, and political violence.

Since Jan. 6, 2021, election denialists have continued to spread lies and misinformation about voting in America. False claims about voting machines, panic over the (disproven) prevalence of ineligible voters on state voter rolls, and a general disbelief in the outcome of the 2020 presidential election are still widespread. Election denialists do not merely believe these falsehoods – they seek to weaponize them. They have pushed for restrictive voting laws, harassed election officials, and sought other ways to undermine America’s democracy. As the 2024 presidential election approaches, one tactic already gaining traction is especially noteworthy: local officials could seek to block the certification of election results. 

Election certification is the process through which the counting of votes is concluded. Most people are now familiar with the Vice President’s role in presiding over Congress’s counting of the electoral college’s votes every January 6th, a duty often referred to as “certifying” the electoral college results. But the Vice President is just one of many officials charged with a duty in the presidential election process. On the local level, thousands of officials who sit on municipal and county boards of election conduct the canvass — the process of counting and aggregating ballots — which is finalized through a process called certification. When local election officials “certify” the canvass, they attest with their signatures that the results are a complete and accurate record of all votes cast in the election as reported by precincts.

In late 2020 and early 2021, then President Donald Trump and his advisors demanded that Vice President Mike Pence refuse to certify the states’ election results. As Pence correctly concluded, the 12th Amendment of the U.S. Constitution and the Electoral Count Act of 1887 granted him no such power. Thanks to the Electoral Count Reform Act of 2022, it is clear that the Vice President’s role is, and always was, purely ministerial.

In 2024, the election denial movement’s focus has shifted to the local certification process, with some claiming that local officials have the power to refuse to certify precinct and county election results. Fortunately, this effort has already suffered a series of defeats. Recently, for example, a Fulton County judge told local election officials in Georgia that even though new regulations seemingly allow them to conduct freewheeling investigations into undefined election irregularities, they still cannot refuse or delay certification under any circumstances. Courts and local officials alike have recognized that these election officers have no power to hold up, let alone overturn, the result of a state’s popular vote. Like the Vice President, their role is ceremonial.

Still, this effort could create widespread confusion in the United States’s upcoming presidential election. 

Consider the following scenario. A few days after election day, reporting shows the presidential vote margin in a swing state county is razor-thin. The county’s election board needs to sign paperwork certifying the county’s final vote tally so that state officials can determine whether Vice President Kamala Harris or Trump has won the state. But as the statutory deadline for the county to certify the results approaches, a few members of the county board say they can’t certify the final tally, citing unfounded concerns about voter fraud. If the county refuses to certify, what happens to the state’s presidential electors?

Since 2020, a handful of local officials have already tried to operationalize this strategy for election subversion. Earlier this summer, three of the five members of the Washoe County Commission in Nevada refused to certify the results of two primary election recounts. Following the June 9th primary, the losing candidates in two local races requested recounts, as any losing candidate is entitled to do in Nevada. The recounts found only one additional vote for one of the candidates who requested the process, which simply confirmed that the original winners won by a significant vote margin.

Despite this thoroughly routine recount result, three county commissioners still voted against certifying the results, gesturing generally toward voter fraud as their justification. One commissioner explained her “no” vote by claiming: “[W]e’ve heard a lot of concerns of procedures, a lot of concerns of alleged mishaps, I think have been a term that’s been used a lot or hiccups … I am not going to certify the vote[.]” The other two “no” votes came from county commissioners who have a history of pushing for unnecessary and even counterproductive election procedures that are favored by election skeptics, like requiring jurisdictions to count every single ballot by hand. In fact, the evidence demonstrates that those hand-counting systems are less accurate and no more secure than electronic tabulation machines.

Similar instances have played out in at least 21 counties around the country, including notable counties in swing states, like Wayne County, Michigan and Cochise County, Arizona. The frequency of these incidents suggests we should expect to see at least some local officials try to delay or refuse certification in November.

Fortunately, local refusals to certify election results are destined to fail because it is simply not legal. Certification is not part of the process that ensures the votes have been accurately counted. Certification is a ministerial and mandatory duty to sign off on the canvass. By contrast, multiple steps during the canvass ensure that the votes have been accurately counted. And there are several opportunities under state recount and election contest statutes to identify and rectify any irregularities — typically after certification is complete.

Some officials who might be tempted to refuse to certify an election are recognizing that to do so would be futile, and they are backing down before they face legal consequences. In Washoe County, for instance, two of the three commissioners who refused to certify the July primary reversed course after receiving guidance from the Washoe County District Attorney’s Office that their certification duties were non-discretionary. 

To address those who might nonetheless attempt refusals or delays, candidates, voter advocates, and state election officials have legal mechanisms, such as mandamus actions, to force local officials to comply with their duty to certify results. State and local prosecutors can also enforce criminal provisions that prohibit dereliction of official duties and other misconduct in public office. In Cochise County, for example, both the Arizona Secretary of State and Arizona voters filed mandamus petitions to compel Cochise’s election certification. The two county officials who refused to certify the 2022 midterm election results were indicted on state charges for conspiracy and interference with an election officer—one recently pled guilty to a lesser charge and the other will stand trial early next year.

Even so, certification refusals might be attractive to the small number of election officials who may choose to put party loyalty above their lawful duties. The false narrative that only widespread fraud can explain Trump’s electoral losses in 2020 is already sowing doubts about the legitimacy of the 2024 election, even though the vast majority of votes have yet to be cast. In service of the “Big Lie,” election denialists are throwing everything at the wall to see what will stick in order to create mass doubt about the integrity of American elections. In the last several weeks alone, there have been eleventh hour changes to Georgia’s canvass and certification rules, lawsuits to force mass purges of voter rolls in swing states, and a moral panic over the non-existent problem of noncitizens voting in federal elections. A lawyer for United Sovereign Americans, a new organization pushing for mass voter roll purges, recently said the quiet part out loud: that the purpose of the unprecedented number of lawsuits already being mounted against voting rules is not to change the rules before Election Day, but to create a record of “anomalies” that can be used to challenge the results after voters have already cast their ballots.

Against this backdrop, it is alarming that at least one county official — a member of the Kalamazoo County, Michigan Board of Canvassers — already openly flirted with the idea of refusing to certify the results in November. After being brought to court to clarify his duties, that board member capitulated and stated in an affidavit that he understood he had no basis to refuse to certify the upcoming election.

Even so, attempts like these could create problems throughout the country. A local official refusing to certify their county’s results, and thereby delaying the final election results, helps fuel the disinformation loop about the integrity of our elections, contributing to voter confusion and skepticism of whether the system is working.

In the end, a local official refusing to certify election results does not pose a real risk that election results will not be finalized — but what comes next could be dangerous. Consider, again, the original hypothetical. When a county official refuses to certify in the name of unsubstantiated but “widespread” voter fraud, rumors start spreading online that noncitizens and ballot harvesters have tainted the county’s election. Sham lawsuits are filed promising explosive evidence of fraudulent voting. Those zombie lawsuits filed before election day are then touted as further proof that the results were tainted from the start. Seizing on this disinformation, a major candidate then calls into question the county’s results, then the state’s vote tally and, finally, the outcome of the electoral college – and thus, the winner of the presidency.

Amid such a disinformation maelstrom, it is imperative that voters see certification refusal for what it is — an illegal gambit that will not succeed. When it comes to election certification, the law is clear. There is simply no basis to block an election by refusing to certify it. As the post-election period unfolds, however, some local officials may still try to use this tactic to call valid election results into doubt. Voters should know that these same elections officials do not get to pick the winners — the voters do. 

IMAGE: Election workers open mail in ballots at the Maricopa County Tabulation and Election Center on November 11, 2022 in Phoenix, Arizona. (Photo by Justin Sullivan/Getty Images)

The post Local Officials Cannot Block Election Certification. But They Can Fuel Disinformation. appeared first on Just Security.

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A curated weekday guide to major news and developments over the weekend. Here’s today’s news:

ISRAEL-IRAN CONFLICT

Israel fired a barrage of “precise strikes on military targets” in Iran on Saturday local time, in retaliation for Iran’s Oct. 1 missile attack on Israel. The attacks, launched from Iraqi airspace, hit air-defense systems around Iranian energy sites, killing four Iranian troops, according to Iranian and Israeli officials. Israel also hit weapons production sites, crippling a critical component in Iran’s ballistic missile program, Israeli sources said. Barak Ravid reports for Axios; Farnaz Fassihi and Ronen Bergman report for the New York Times. 

Israel notified Iran of the general targets of its retaliatory airstrikes in advance and warned Iran not to respond, in an attempt to prevent a wider escalation, sources say. Barak Ravid reports for Axios.

Israeli and Iranian authorities seemed to adopt a measured tone in response to Saturday’s strikes, with Israeli Prime Minister Benjamin Netanyahu stating the attack “achieved all its objectives,” and Iranian President Masoud Pezeshkian saying that Tehran will respond “appropriately” but does not “seek war.” Isabel Kershner, Farnaz Fassihim, Hiba Yazbek, and Michael Levenson report for the New York Times. 

ISRAEL-IRAN CONFLICT — U.S. RESPONSE

President Biden on Saturday said he hopes Israel’s attack on Iran will mark “the end” of the countries’ cycle of escalation. The White House previously expressed support for the attack, calling the strikes “targeted and proportionate.” Emma Graham-Harrison reports for the Guardian; Peter Baker reports for the New York Times.

ISRAEL-IRAN CONFLICT — REGIONAL AND INTERNATIONAL RESPONSE

Iraq complained to the U.N. Security Council about Israel’s use of its airspace to attack Iran ahead of the body’s planned meeting later today to discuss Israel’s attack. The Guardian reports; Michelle Nichols reports for Reuters.

U.N. Secretary-General António Guterres said he was “deeply alarmed” by Israel’s attack on Iran, calling for “all acts of escalation” to stop. Farnaz Fassihi reports for the New York Times.

ISRAEL-HAMAS WAR — INTERNATIONAL RESPONSE

The Israeli government’s “policies and practices in northern Gaza” could amount to “atrocity crimes, including potentially extending to crimes against humanity,” the U.N. High Commissioner for Human Rights said on Friday. The U.N. Office for the Coordination of Humanitarian Affairs also warned on Saturday that the “entire population of north Gaza is at risk of dying.” Michael Crowley and Nick Cumming-Bruce report for the New York Times; Karem Khadder and Vasco Cotovio report for CNN. 

The U.K. will consider providing intelligence gathered from surveillance flights over Gaza to the International Criminal Court if requested, the U.K. ministry of defense ministry said. Jonathan Beale and Thomas Mackintosh report for BBC News.

ISRAEL-HAMAS WAR

Israeli strikes on Gaza yesterday killed approximately 70 people, with Israel’s offensive in the north showing no signs of abating despite renewed ceasefire talks. Bethan McKernan reports for the Guardian.

The Israeli military today said it captured around 100 suspected Hamas militants during a Friday raid on one of the last functioning hospitals in northern Gaza. Gaza health officials and Hamas previously denied any militant presence there. Nidal Al-Mughrabil reports for Reuters.

Egypt yesterday proposed a two-day ceasefire between Israel and Hamas to facilitate the release of four hostages and delivery of aid to Gaza, President Abdel Fattah el-Sissi said. Ami Bentov, Samy Magdy, Tia Goldenberg, and Joseph Krauss report for AP News.

ISRAEL-HAMAS WAR — U.S. RESPONSE

Treasury Secretary Janet Yellen and seven foreign counterparts warned Netanyahu the actions of his far-right finance minister may cause an implosion of the Palestinian economy and risk further destabilizing the region. Barak Ravid reports for Axios.

ISRAEL-HEZBOLLAH WAR 

An Israeli strike in southern Lebanon killed eight people and wounded 25, the country’s health ministry said yesterday. Israel did not immediately comment, but yesterday said it was carrying out “targeted ground raids.” Matthew Mpoke Bigg reports for the New York Times.

U.S. PRESIDENTIAL ELECTION

China-affiliated hackers sought to access the phones of campaign staffers for former President Trump and Vice President Kamala Harris and collected audio from the phone calls of U.S. political figures. Joseph Menn, Josh Dawsey, Ellen Nakashima, Perry Stein, and Yasmeen Abutaleb report for the Washington Post.

Elon Musk’s super-PAC awarded two more $1 million prizes in its lottery for registered swing voters on Thursday night, despite warnings from the Justice Department that the giveaway could violate election laws. Perry Stein, Trisha Thadani, and Amy B Wang report for the Washington Post.

The U.S. federal intelligence authorities are seeing a rise in online discussions among extremists preparing for an imminent “civil war,” a Department of Homeland Security report shows. Betsy Woodruff Swan reports for POLITICO.

An appeals court ruled on Friday that a Mississippi law requiring election officials to count mail-in absentee ballots received after Election Day violates federal law. Isabelle Taft reports for the New York Times.

A Georgia appeals court refused to expedite the review of a Republican challenge to result certification deadlines, with the lower court’s order mandating county officials to certify the results set to remain in force during the election period. Kate Brumback reports for AP News. 

In a Sunday decision, an appeals court refused to reinstate Virginia’s voter purge program which would automatically cancel voter registrations of suspected noncitizens. Rebecca Falconer reports for Axios.

OTHER U.S. DOMESTIC DEVELOPMENTS 

The U.S. Navy apologized for its bombardment of a native Alaskan community 142 years ago. Johnny Diaz reports for the New York Times.

RUSSIA-UKRAINE WAR

Several thousand North Korean soldiers have arrived in Russia’s western Kursk region, where they are expected to participate in an upcoming counteroffensive aimed at expelling Ukrainian forces, sources say. Michael Schwirtz, Julian E. Barnes, and Eric Schmitt report for the New York Times.

Ukrainian President Volodymr Zelenskyy has declined a visit by Secretary-General Guterres after he attended a BRICS summit in Russia last week, according to a source. Jaroslav Lukiv reports for BBC News. 

GLOBAL DEVELOPMENTS 

Sudan’s paramilitary Rapid Support Forces’s (RSF) attacked a village on Friday, killing at least 124, activists say. It marks one of the deadliest incidents in the country’s ongoing civil war. Nafisa Eltahir and Khalid Abdelaziz report for Reuters.

International Criminal Court Chief Prosecutor Karim Khan allegedly tried to suppress a sexual misconduct complaint against him by urging the complainant to disavow her claims. Khan has denied the reports. Harry Davies and Robert Flummerfelt report for the Guardian.

A judge presiding over the prosecution request for a Netanyahu arrest warrant has been replaced on health grounds, the ICC said on Friday. The move could lead to further delays in the proceedings. Stephanie van den Berg reports for Reuters.

One person was killed and at least 30 injured after a truck hit a bus stop near an Israeli military base north of Tel Aviv. The authorities say they are investigating the incident as a suspected terror attack. Lucy Williamson reports for BBC News.

Japan faces political uncertainty after the Liberal Democratic Party yesterday lost its parliamentary majority in the lower house for the first time in 15 years. Helen Regan and Yumi Asada report for CNN.

Georgia’s president yesterday called for people to protest the results of Saturday’s disputed parliamentary election, in which the electoral commission said the ruling pro-Russia party won. Monitors observing the count reported significant irregularities. Felix Light and Lucy Papachristou report for Reuters.

Satellite images show major expansion at a Russian site used for bioweapons development during the Cold War. Joby Warrick and Jarrett Ley report for the Washington Post.

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