It’s clear that the window between Election Day and Inauguration Day is as important as Election Day itself. In the November 2020 general election and 2022 midterms, numerous efforts to block the certification of elections were launched in key states throughout the country. While each effort ultimately failed, and some certifiers who shirked their duty are now being held to account, certifiers may once again face pressure from bad-faith actors to abuse their power in an attempt to manipulate the outcome in 2024.
To ensure the will of the people is upheld in 2024 and beyond, it is critical that voters and advocates alike understand the role of certification in finalizing our election results – what it is, and what it isn’t. While state laws concerning the certification process vary, three principles are consistent across all states:
- Numerous safeguards, checks, and balances are designed to ensure that all lawfully cast ballots are accurately counted;
- State laws outline specific processes to all candidates and voters to challenge reported results through election contests and recounts; and,
- Certification of elections is an administrative, non-discretionary act in all states.
Importantly, state laws do not give certifiers authority to question election administration processes or the accuracy of the results reported to them after the lawfully-conducted canvass.
In this month’s Hot Policy Take, we take a deep dive into the process and protocols around election certification. We will illustrate how the laws across all 50 states are clear: certification is the stage where winners are simply declared. Winners are decided at earlier stages, when all votes are verified, counted, and the results are reviewed and approved by state and local election officials.
Winners are decided through rigorous voter verification, counting, and canvassing procedures
Prior to certification, our votes are subject to a series of checks and balances: verification, counting, and canvassing. Each of these three steps is designed to make sure that only lawful votes are counted and all lawful votes are counted. Let’s take a brief look at each stage.
- Verification. Before votes may be counted, election officials will take steps prescribed by law to ensure that each vote is cast by an eligible voter. This process varies by state and by vote method, whether in-person or by mail. (Next month’s Hot Policy Take will go into greater detail about these processes.)
- Counting. Counting is generally the first notable post-election process for election workers after polls close. Generally, verified in-person votes are counted at polling locations, usually by tabulation equipment. Verified mail ballots are generally counted at a central location for the county. Workers conducting the count – often short-term volunteers – will complete paperwork and secure voting materials for transmission to the local (often county) election authority. Opening, handling, counting, and transporting ballots and other election materials is usually conducted by bipartisan teams in the presence of bipartisan observers.
One important safeguard at the counting phase is logic and accuracy testing of tabulation equipment. Logic and accuracy testing confirms that tabulators are interpreting a voter’s marks on a ballot to accurately reflect the voter’s intent. Most states require this testing of tabulation equipment both before and after each election.
- Canvassing. Canvassing is the process whereby election professionals verify the accuracy of the count reported to them from the polling and central count locations, and also verify that processes required by law were followed in the conduct of the election. They will reconcile all of the information from each precinct and counting location to make sure that nothing was missed, all procedures required by law were followed, and all ballots are accounted for. Like counting, this process is often open to candidate- or party-designated observers.
Many states have a requirement to complete an audit at the county and/or state level prior to certification to provide additional verification that the count is accurate. Once officials are satisfied, they will report the results to the certifying authority.
Winners are declared at the ministerial certification stage
This brings us to certification, the process whereby the body vested by state law with the authority to declare election winners does so according to the results reported by the canvassing authority. Often, the certification authority is an entirely different entity than the canvassing authority. It may be a single local election official, a local body specializing in elections, or the general governing authority for a county, like a board of supervisors.
The certification authority issues “certificates of election” to the winners of the various races. County certification authorities declare winners in local or county races. They also certify the vote counts in multi-county and statewide races to the state authority, but they do not declare winners in those races. State certification authorities will declare winners in multi-county and statewide races, including President.
State laws provide candidates and voters explicit opportunities to adjudicate doubts concerning the validity or accuracy of the count through election contests and recounts with statutory procedures. Those laws do not empower[1] members of certifying authorities to similarly challenge the accuracy of the count or the processes used to administer the election.
Recent challenges to election certification ultimately reinforce certification as solely an administrative function
In the 2020 and 2022 elections, authorities charged with certifying election results have attempted to refuse to certify election results in several states, including Michigan, Arizona, Pennsylvania, and New Mexico. All of these efforts were tossed out in litigation – or threats thereof – because they were contrary to each state’s laws mandating that certification occur after the thorough processes that ensure the accuracy and validity of the count.
And even in previous elections this year, jurisdictions have wrestled with questions about certification and ultimately reinforced its straightforward, administrative function. For example, after a May 2024 recall election in Delta County, Michigan, the county board of canvassers completed the certification process just three days after initially refusing certification when the state election director stepped in to remind them their role was non-discretionary under the state constitution.
And Luzerne County, Pennsylvania partially certified the results of their April 2024 primary election after a candidate filed a legal motion regarding the status of several provisional ballots. This case demonstrates how voters and candidates often have legitimate legal avenues to challenge election results – legal avenues that do not involve certifiers shirking their duties.
Conclusion
Recent attempts to delay or refuse certification of election results have all failed because state election laws clearly state that certification is a non-discretionary, ministerial act that occurs after numerous processes confirm the accuracy and validity of election results.
Think of the verification, count, canvassing, and certification processes like earning a high school diploma. Teachers, who have specialized training and deal closely with their students, spend many hours grading homework and tests to make sure each student meets the requirements to pass a class. Once teachers confirm that a student has passed all classes, the officials from the local school board issue a diploma to the student. These officials have neither the authority nor the context to challenge grades issued by the teachers.
With our upcoming Hot Policy Take, we’ll explore the vote verification stage in more depth. In the meantime, you can explore bills that might interfere with election administration – including problematic election audits or shifts in election authority – with this snapshot in our Voting Rights Tracker.
[1] We enumerate just a few examples here: State law in North Carolina says, “In ballot items within the jurisdiction of the State Board of Elections, the State Board of Elections shall issue a certificate of nomination or election…as appropriate. The certificate shall be issued by the State Board six days after the completion of the canvass…, unless there is an election protest pending….In a general election, the individuals having the highest number of votes for each office shall be declared elected to the office, and the certificate shall be issued accordingly.” (N.C. Gen. Stat. § 163-182.15). Likewise, page 248 of the 2023 Arizona Election Procedures Manual explains, “The Board of Supervisors has a non-discretionary duty to canvass the returns as provided by the County Recorder or other officer in charge of elections and has no authority to change vote totals, reject the election results, or delay certifying the results without express statutory authority or a court order.” Finally, a 2022 New Mexico court order directs the Otero County commission to comply with its “non-discretionary duty” to “meet to approve the canvass of returns and declare the results” of the election.