Checking Election Facts: It is illegal for county officials to refuse to certify election results

As former President Donald Trump escalates his attacks on the integrity of the upcoming election, experts warn that the election certification process could provide an opportunity for rogue local officials to try to unlawfully challenge the results.

Local officials are legally required to certify election results, but the process has become increasingly politicized since Trump attempted to overturn the 2020 election, with local officials indicating a willingness to defy their legal duty to certify, experts said. a recent watchdog report.

The politicization of the certification process comes as Trump has repeatedly sown doubt about the integrity of US elections.

“They want to cheat,” Trump said of his opponents at a rally in North Carolina on Saturday. “And they cheat. They cheat like hell.”

Since the 2020 election, more than 30 local election officials in eight states — including key swing states like Pennsylvania, Georgia and Arizona — have voted to delay or deny certification of election results, according to a report from the watchdog group Citizens for Responsibility. and ethics in Washington.

Legal experts believe these challenges are unlikely to succeed in the upcoming presidential race, but do have the potential to sow further distrust in the integrity of the election.

“I do expect that there will be local election officials who refuse to certify,” said Sean Morales-Doyle, a voting rights expert at the Brennan Center for Justice, a nonprofit think tank. “Every time this has been tried before, courts have quickly put a stop to it… but what they could be doing is undermining public confidence in our process, and that in itself is really damaging.”

Morales-Doyle said officials who refuse to announce election results are often trying to capitalize on a common misunderstanding about their role in the months-long process that follows the November election. Election officials participate in a process called canvassing to ensure that every vote is counted in the final count, including reviewing ballots and certifying the total number of votes cast. Most states also audit their election equipment after the election to confirm that votes were counted correctly.

Election certification is the final administrative step in the process after the previous canvas and audits have identified and resolved irregularities. By certifying the election results, election officials confirm that these previous steps have been completed.

“What they need to do is certify the number of votes they have counted. They are not supposed to stick their nose in the validity of the votes,” said Robert McWhirter, a constitutional lawyer.

Since the 2020 election, local officials in at least eight states have tried to use their largely ministerial role in election certification to delay or deny certification, according to Citizens for Responsibility and Ethics in Washington.

One of those officials — Washoe County, Nevada, Republican Commissioner Michael Clark — told ABC News that he voted against certifying local election results in July because he believes provincial officials have failed to properly maintain voter rolls.

“I believe the people who run the polling place cannot keep accurate records,” Clark said. “If I see sloppy accounting, I don’t trust it.”

Washoe County officials acknowledged problems with some of their realigned ballots but recently upgraded their voter registration system.

After Nevada Attorney General Kris Mayes threatened to prosecute Clark for failure to discharge his duties, he changed course and allowed the certification to proceed.

In Cochise County, Arizona, a Republican supervisor who refused to certify the 2022 midterm elections pleaded guilty last month on a misdemeanor charge, with her probation agreement requiring her to certify the upcoming election. Peggy Judd told ABC News that she now better understands her ministerial responsibilities, but disagrees with the requirement that she certify elections “no matter how bad it looks or smells.”

In response to similar cases, some courts have strengthened certification laws. Last month, a state judge in Georgia spoke issued a directive that officials have a mandatory duty to certify election results, rejecting the argument that officials can block the results due to allegations of fraud.

“Election inspectors in Georgia have a mandatory, standing obligation to certify election results,” Judge Robert McBurney wrote. “There are no exceptions.”

That’s because irregularities and alleged voter fraud are detected and resolved throughout the election process, including through the canvassing process and through referrals to law enforcement agencies.

“There are processes in the law for someone to allege that irregularities occurred that would have led to different election results,” said Paul Cox, general counsel for the North Carolina State Board of Elections. “If that is not the case, there is no basis for a county board of elections to withhold certification of the vote count.”

After two officials in North Carolina refused to declare their county’s 2022 election results, the North Carolina State Board unanimously fired both officials last year.

While efforts to delay or deny certification are likely to be rejected by the courts, experts warn that the efforts themselves could still breed distrust or contribute to a broader strategy to sow doubt about election integrity.

“They’ve been planning their playbook for a while,” Morales-Doyle said of Trump’s doubts about the integrity of the election. “One of the clear elements of that playbook is trying to use various institutions and people in positions of authority to give a veneer of legitimacy to the efforts to overturn the outcome of the election.”