Four years after certification of the presidential election led to rioting at the US Capitol, fights over the once pro forma process are becoming more frequent and widespread as Republicans in battleground states that could be decided by only thousands of votes try to challenge the process.
Disputes across the country are brewing over the role of local election boards and how much power they have to question – or even throw out – election results. Given the thin margins in battleground states like Georgia, Michigan, Nevada and Wisconsin, the election between former President Donald Trump or Vice President Kamala Harris could be in the balance.
While Republicans say they are worried about voter fraud, Democrats fear local officials who buy into conspiracy theories and false claims of fraud will refuse to certify results, leading to a potential legal morass and possible delays that inject uncertainty into the November election.
In Georgia, for instance, Trump-backed members of the state election board recently passed controversial rules that could allow local election boards responsible for certifying results to conduct investigations that threaten to delay certification.
Tuesday, the Democratic National Committee, the Georgia Democratic Party and Democratic members of several county election boards will try to convince a Georgia state judge the rules could throw the upcoming presidential election into “chaos.”
“The law is very clear in every state that certification is a mandatory duty,” said Ben Berwick, the head of election law and litigation at the advocacy group Protect Democracy. The role of those officials, he said, is “simply to affirm that the canvas and tabulation have been completed and that the results are official.”
“Even unsuccessful attempts to block certification can cause delays, and even small delays in the very tight post-election timeline can have us cascading effect,” Berwick said.
Though every state’s certification rules are slightly different, the process is simple: When polls close on Election Day, election officials tally the votes and confirm that every valid ballot was counted. Those officials then turn to local election boards – made up of Democrats and Republicans who may or may not have experience in election administration – to certify the results before passing them along to either a state board of elections or the state’s chief elections officer, who will also certify and finalize that result by December 11. They then go to Congress for a final certification on January 6.
In 2020, a pressure campaign from Trump and his allies urging the officials, beginning with local election boards and continuing up to then-Vice President Mike Pence, not to certify the vote totals ended up with a riot at the US Capitol and partisan wrangling over control over the process ever since.
Lawsuits aiming to preemptively head off challenges to the certification process are beginning to appear nationwide with mixed results.
In Georgia, the Democratic plaintiffs challenged the new rules around certification shortly before they were supposed to take effect.
One of the Georgia rules, the “Reasonable Inquiry Rule,” would allow election officials to conduct a “reasonable inquiry” before certifying election results. The petitioners in the case argue that the rule would give partisan board members a wide ability to cast doubt on, or even reject, election results.
The second rule, known as the “Examination Rule,” would allow individual county board members to “examine all election related documentation” before certifying.
Georgia Republicans and the Republican National Committee, defending the two rule changes, have argued that they ensure local election boards have the tools they need to make sure vote counts are accurate, and that Democrats have only raised “abstract and hypothetical” concerns about their impact.
In some cases, the threat of legal action has been enough to deter officials from pursuing challenges to the certification process. One Republican canvasser in Kalamazoo County, Michigan, was sued by the ACLU over alleged threats to not certify the upcoming presidential race. The canvasser, Robert Froman, denied making the comments and quickly signed an affidavit promising not to interfere in November’s election.
Situated in southwest Michigan, the county is home to more than 215,000 registered voters, according to the Michigan Department of State, but it has reliably trended blue in recent presidential history. President Joe Biden won the state in 2020 with 58% of the vote.
Asked if he would certify the 2024 presidential election if it unfolded the same way the 2020 one did, Froman told the Detroit News, “No. And that’s why I’m there.”
Froman has not responded to attempts to reach him for comment.
The suit was dropped, and the ACLU sent a letter to every board of county canvassers in Michigan warning that their organization “will be carefully monitoring their activities come November,” and that “a canvasser who refuses to perform their legal and constitutional obligations by voting to certify the election based solely on the returns may be subject to swift and decisive legal action.”
And in Nevada, the state Supreme Court dismissed a lawsuit filed by Democratic Secretary of State Francisco Aguilar asking the justices to force the Washoe County commissioners to certify an election over the summer. Washoe County, home to Reno, is a critical swing county with more than 380,000 registered voters, according to the Nevada secretary of state.
The justices dismissed the suit because the commissioners certified the election on their own. But, the justices said, Aguilar could raise the issue again if the commissioners failed to certify an election in the future.
Still, not every suit has ended with resounding wins for officials or advocacy groups aiming to insulate the certification process from challenges. Last week, a federal judge in Arizona blocked a state provision that, in the event local officials failed to certify their county’s votes, instructed the Arizona secretary of state to proceed with the state canvass anyway. Officials believed that the provision would act as a contingency plan should some local boards miss their legal deadline.
That judge sided with conservative groups who claimed the provision likely violated the constitutional right to vote because it, in the judge’s words, “gives the secretary of state nearly carte blanche authority to disenfranchise the ballots of potentially millions of Arizona voters.”
Several election experts told CNN they believe that state and federal laws surrounding the certification process will ultimately ensure local boards certify their results this year, heading off potential chaos.
“So far, courts have done a very good job of getting to the heart of the matter on this,” said Gideon Cohn-Postar, senior adviser for election infrastructure at the Institute for Responsive Government, a nonpartisan good governance group. “My concern is much more one of narrative than of legality.”
He worried, for instance, of the optics if election skeptics on dozens of boards across the country refuse to certify and are then forced to do so by the courts.
“It’s going to look suspect and can be used by bad faith actors that this is somehow compelling people to do things that are illegal,” Cohn-Postar added. “That will kind of drive conspiracy theories.”
What happened in 2020 and 2022
Legal challenges to the certification process have been playing out over the past four years in states across the country, including Pennsylvania, New Mexico, Georgia and North Carolina. None of those challenges have succeeded.
The first warning signs of major challenges to the certification process came about in 2020, when Republican officials in Michigan’s largest county temporarily blocked the certification of Biden’s win.
The two Republicans on the Wayne County Board of Canvassers cited concerns of voting irregularities in Detroit as their reason, though they reversed course hours later and certified the votes.
It was later reported that Trump and then-Chairwoman of the Republican National Committee Ronna McDaniel had called the two Republican officials to encourage them not to certify.
Efforts from Republican officials to block certification only increased in the midterms, when challenges to certification popped up all over the country. In rural Arizona, county officials only certified the midterm election results after an order from a judge – and two of the county supervisors who refused to certify were indicted on state charges for refusing to certify.
Similar delays played out in Otero County, New Mexico, when the county commission initially refused to certify election results over concerns about Dominion voting machines and questions about a handful of individual votes, and in North Carolina, where the election board delayed certification in one district allegations of irregularities with absentee ballots.
In Pennsylvania, the then-acting secretary of the Commonwealth and Pennsylvania Department of State sued the boards of election in three counties over their failure to certify results too.
In all those instances, votes were eventually certified. And in some cases, officials who initially refused to certify the results have been removed from office or faced criminal charges.
