A woman stands in protest as the Maricopa County Board of Supervisors meets to discuss general election results on Nov. 28, 2022, in Phoenix.
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Matt York/AP
Derek Bowens, the elections director for one of the largest counties in a key state, has a lot on his mind as election season approaches. His county just moved its elections department to a more secure building to protect it from threats, and unveiled an app to deliver accurate information directly to voters.
But one thing that doesn’t concern the Durham County, North Carolina, elections director is certifying the election.
“I haven’t thought about it at all,” Bowens said. “I have no concerns. The law is clear.”
This is the first presidential election since Donald Trump’s massive national campaign to overturn the 2020 results, and watchdog groups and experts are sounding alarms about the potential for certification malfeasance. Finalizing the vote count has typically been a mundane part of the election process, but it’s receiving renewed attention, especially after Georgia’s state elections board recently gave local boards more leeway to investigate, even if doing so could violate state law.
Across the country, dozens of local officials charged with a role in certification this year have shown themselves willing to refuse to do so, based on disproven or unfounded election conspiracy theories, according to a recent report by the left-wing organization Citizens for Responsibility and Ethics in Washington.
Despite this, election experts and those tasked with counting votes continue to have confidence in the certification process. This is partly because of the changes implemented since 2020 and partly because the legal system has proven itself capable of serving as a bulwark against political interference in the process.
“I feel better than most people, but maybe that’s because I don’t worry about everything,” said Charles Stewart, an election expert at MIT. “All indications are that federal and state courts have been silencing election officials who overstepped their authority and acted on hunches rather than evidence.”
Since 2020, courts have required certification
Certification is the final administrative step in the electoral process, in which local political bodies finalize the work of election officials. Trump’s efforts to sow doubt in voting processes have given rise to a new trend in which local Republican officials refuse to finalize results in situations where there is no real underlying problem.
Yet in every case since the 2020 election where a local body has refused to certify, courts have stepped in to force certification. That’s because state laws generally don’t give people in those positions much, if any, latitude to not certify, and after the election has taken place, challenges to voting rules have been taken to court, and the local election administrator has counted the votes.
Each state provides a mechanism, outside of the certification process, by which voters or candidates can challenge election procedures or results. And in some states, this process can only take place After local certification, so local officials who withhold it could obstruct a legitimate investigation.
In Pennsylvania, a state that could very well swing the presidential race, Secretary of the Commonwealth Al Schmidt told NPR that his office is preparing as if there will be local boards that refuse to certify.
“We’re not worried, but we’ll be prepared,” said Schmidt, a Republican who was targeted by Trump in 2020 while serving as a local elections commissioner in Philadelphia.
In the 2022 midterm elections, three different Pennsylvania counties refused to certify local elections.
“And it’s not because the election was close, nor because there was any evidence of voter fraud or voter irregularity,” he said.
Pennsylvania Secretary of the Commonwealth Al Schmidt is preparing as if local boards will refuse to certify election results this fall.
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Local council members disagreed with a court ruling regarding mail-in ballots in the state, and Schmidt’s office eventually filed a lawsuit to force counties to comply.
“There’s always the possibility that people will try to interfere with the administration of the election and the timelines, which are pretty strict,” Schmidt said. “But for us, it’s about working closely with the courts to make sure that these issues are dealt with expeditiously.”
And since 2020, state and federal laws regarding certification have only become clearer, as Votebeat recently detailed.
In Bowens’ home state of North Carolina, for example, those involved in county certification are only responsible for ensuring that eligible ballots have been counted and that any required recounts have been conducted.
However, after the 2022 election, two Surry County, North Carolina, board members refused to be certified because of disagreements with a court ruling on election rules. The state board removed both from office last year.
“Those who administer elections have to follow the law as it is written, not as they want it to be,” Damon Circosta, who was chairman of the state election board, said at the time.
Bowens of Durham County added: “Under North Carolina law, the law says the county board of elections must ‘certify.’ It doesn’t say ‘may,’ ‘consider,’ or ‘may.’ It says ‘shall.’ Our laws are very clear on how the process works once we’re through the canvassing period.”
Questions about certification can fuel false narratives
Even if these types of efforts fail to disrupt the electoral process in various places, Rick Hasen, a professor of election law at UCLA, says they still help spread false election narratives, which can lead to a host of other potential problems.
“When government officials claim that the vote count is unfair, even when they have no reason to do so, it can give rise to conspiracy theories,” Hasen said. “It can provide the basis for illegal acts aimed at overturning the results of the election.”
In fact, the first instance in 2020 where certification became a hot topic occurred in Michigan, a state that Trump lost by more than 150,000 votes.
Trump called two local Republican officials and tried to pressure them not to certify. The officials eventually certified, but false election stories continued to flourish in the state.
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