How to Talk About Election Certification at a Cocktail Party
Election certification is the hottest election integrity issue of 2024, with everyone from Citizens for Responsibility and Ethics in Washington to Rolling Stone warning that right-wing officials might refuse to finalize the results and throw the outcome of the race into doubt.
It would be easier to write 500 pages about the many details of certification than limit myself to the 500 words that I’ve promised for this newsletter. For now, here’s enough to get you by if the topic comes up at your next cocktail party (or you can bookmark this post and come back to it if we’re still talking about certification at Thanksgiving time…).
Officials have a mandatory duty to certify elections. The law doesn’t give them a choice. Most states lay out separate deadlines for county officials to certify local results and state-level officials to certify statewide results.
The law makes certification mandatory because the results have already gone through checks and procedures to ensure they’re accurate. In addition to the checks and balances I’ve discussed in previous posts, (i.e., every step in the process is open to observers), some safeguards include: the post-election “canvass” where officials catch mistakes and correct errors; hand-count audits to confirm machines counted ballots accurately; recounts to double-check close results; and election “contests” — lawsuits to appeal the election — if there was fraud or widespread error. Officials don’t have the right to deny certification based on these issues because the law has already provided some other opportunity to investigate and resolve them before results get to the certification stage.
The risk that officials could delay certification and allow a candidate to steal an election is probably low. While it’s great that we’re raising the alarm, there are ways to force officials to certify. Every state allows some form of (1) civil lawsuits that could result in officials being fined or removed from office if they refuse to certify; and/or (2) criminal charges including potential prison terms for failing to certify. These options have been successfully used to force election deniers in Arizona, Pennsylvania, and elsewhere to certify recent elections.1
While the risk of certification delays throwing the election into doubt may be low, I worry the risk of certification delays throwing democracy into doubt could be very high. As Anna Bower said this morning in The Atlantic,
Chaos is a tool. … [E]fforts to delay certification at the local level might not be about achieving a concrete legal victory so much as they are about sowing a conspiracy-theory-fueled rebellion. And that will be very dangerous indeed.
In an age of misinformation, the second bullet point above becomes the most important (and has so far been the least covered): Whatever reason officials give for denying certification, there has already been some other process to settle that claim. The candidates had a chance to submit evidence to that process, and the media and voters had a chance to observe it (by the way, the certification officials could observe that process as well!).
By the time election results are delivered to the certification officials, any reasonable complaints about fraud, mistake, or wrongdoing could have been resolved in a fair and open process, and officials have no basis not to comply with their mandatory legal duty to certify.
