Local Officials Cannot Block Election Certification. But They Can Fuel Disinformation.

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)

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