Certifiable: Could Crazy Deniers Sabotage the Elections?

August 28, 2024

Donald Trump and his minions have changed the way many Americans think about elections. In Trump world, these contests are no longer assumed to be the way we discern the will of the people and ensure peaceful transfers of power.  Instead, elections are corrupt events that are manipulated to serve those who disagree with the MAGA view of the world.  If Trump’s side does not win, it is inevitably due to the theft of the election. And the only way to “stop the steal” is by constant attacks on the system, shouting “fraud” at every opportunity, filing lawsuits to sow dissent, and undermining the process by which election results are certified. 

Certification is a Ministerial Act–until it’s not!

Until the 2020 election, few Americans paid attention to the process of “election certification.”  It was routine and happened quickly after elections.  The 2020 election changed that.  And, in these hyperpolarized times, certification is yet another battleground upon Trump acolytes can fight to get their way.

Election certification is the final stage of a process by which votes are tabulated, checked to account for all ballots, and then transmitted, first to the local jurisdiction, next to the state, and finally, in the case of a presidential election, to the Congress.   Election certification is not designed to address irregularities or legal challenges, but instead occurs after the results have been repeatedly verified during the canvassing process. Certification is therefore a ministerial duty whereby local and state officials sign off on vote totals after the comprehensive verification process is complete. State and federal laws say that certification is mandatory, and courts have clearly stated that county election officials cannot refuse to sign the certification papers. Hence, the Vice President Mike Pence had no choice in 2021 but to certify the electors presented from the states.

Certification is not designed to identify irregularities or errors, or to resolve other disputes with an election. There are other legal processes, largely products of state law, to address these issues. Certification begins at the local level, and states usually impose deadlines on election officials by which certification should occur. In 2022, largely to prevent a repeat of problems with certification in the 2020 election, Congress passed the Electoral Count Reform Act, which set a strict deadline–December 11– for states to certify slates of presidential electors. The Act further clarifies that the Vice-President’s role in certifying electors is ministerial and requires Congress to defer to the slates of electors as determined by the states, all designed to avoid the chaos of January 6, 2021, when Trump supporters in the Senate disputed the qualifications of electors in several states. Since 2021, 12 states have also passed new deadlines by which certification shall occur. 

Trump Strategy 1: Undermine Legitimacy

Despite the significant technological improvements to reduce election errors and strengthen the integrity of the system since Bush v. Gore (when is the last time you heard about a “hanging chad”?), Americans feel a heightened uneasiness about our process.  A 2022 ABC NEWS/Washington Post poll reported that only 20% of the respondents felt “very confident” in our electoral system. Similarly, 56% of respondents in a recent CNN poll said that they have “little or no confidence” that our elections represent the will of the people, an increase from the 40% who felt that way in January 2021.  A 2023 Associated Press-NORC Center for Public Affairs Research poll found that less than half of respondents (44%) have “a great deal” or “quite a bit” of confidence that the votes in this fall’s presidential election will be counted accurately.  

Trump’s daily tirades against our electoral system have done much to undermine its legitimacy.  But this view seems more prevalent among Republicans, perhaps understandable because Trump’s talking points circulate more widely within the party’s echo chamber. A longitudinal analysis by Gallup indicates a dramatic decline in Republican perceptions about the accuracy of the U.S. elections, this despite reports by conservative leaning institutions that show no serious irregularities and the refusal of courts to find in Trump’s favor in 60+ lawsuits that followed the 2020 election. 

 

Trump Strategy 2–Test for Weaknesses

Since 2020, the Trump crowd has not only railed against the accuracy of the election but has been systematically probing for possible weaknesses in the system. Trump lawsuits in 2020 failed largely because there was little evidence of systemic fraud.  His “fake electors” scheme also collapsed, primarily because the certification of elections is largely a ministerial duty rather than a political or legal judgment.  In 2021, Mike Pence was correct in heeding the advice of attorneys; the certification process of electors to the electoral college must occur after the states provide them to the Congress.  But what if there is a breakdown earlier in the process? What happens if local boards of elections do not certify the election totals and provide them to the state? Or the states do not certify the slate of electors and send them to Congress? In theory, if a slate is not certified, the votes cannot be counted, and neither presidential candidate would have enough electoral votes to win the election.  This should not happen, but if it did, the decision would then be thrown into a newly elected House of Representatives where each state delegation would get one vote; today, Republicans control 26 state delegations; Democrats control 22; and two are evenly divided.  Hence, a candidate could win the popular vote nationally and in several key states, but still be denied victory by the U.S. House of Representatives.

So, what have Trump advocates been attempting to do? Disrupt the certification process at the state and local level!  If votes are not certified at the local level (again, a stretch), it may become difficult to send a slate of electors to Washington.  Not surprisingly, Trump forces have focused on key battleground states. Part of the strategy has involved placing allies on local election boards. Those allies have been testing the process by strategically delaying or refusing to certify results. Since 2020, more than 30 county officials in eight states have unlawfully voted to deny or delay certifying election results, often citing false claims of voter fraud or irregularities. In Arizona, for example, MAGA forces on the Cochise County Board of Supervisors attempted to prevent the certification of 2022 county vote totals. In Colorado, a Republican canvass representative refused to certify the county’s election results after the state’s GOP advised boards to not certify the November 2023 election results.  During the midterm primary elections, four counties in Pennsylvania  refused to certify accurate election results. 

To date, none of these efforts have changed the results of any elections. But court action was typically needed to compel the certifications.

Trump Strategy 3–Make Certification a Political Process

Nonetheless, Trump forces continue their push to take control of local boards of elections.  In Florida, a group of election deniers running under the label “America First” are vying to become local supervisors of elections.  While they cannot make state law, they will nonetheless control election operations in their jurisdictions. Some state boards have attempted to change the rules of election certification.  Georgia has become the poster child for this effort, after the legislature undermined some of the election oversight powers of Republican Secretary of State Brad Raffensperger following his refusal to find Trump the 11,779 votes he requested so he could win the state. Trump allies then gained control of the state Board of Elections.  Celebrated by Trump for being “pit bulls fighting for honesty, transparency, and victory,” the MAGA members of the Board recently imposed a new requirement that county officials conduct a “reasonable inquiry” before election results are certified.  The new rule did not set deadlines for certification or describe what “reasonable inquiry” involves, and critics wondered if this could become a vehicle for preventing electors from being sent to Washington.

When the Board issued another edict that prohibits a county election board from certifying results if there is a discrepancy between the number of ballots distributed and the number of voters, it drew criticism from the Georgia Association of Voter Registration and Election Officials and Raffensperger, who blasted the board for passing new rules so close to an election. Warning of chaos, Democrats have now sued to overturn the rules, which arguably violate state laws and perhaps the state constitution.  The suit asks that election officials be required to certify election results by a statewide deadline.

Will It Work?

Efforts at undermining certification are sophisticated, expensive, and have generated grave concern from keen observers such as Rachel Maddow.  But will they work?  If the Trump strategy is to undermine respect for the system, these efforts can be extremely effective. Each false allegation, unsupported lawsuit, and conspiratorial outburst continues to undermine election legitimacy.  But if Trump hopes these machinations will bring him victory, he is likely to be disappointed, especially in the battleground states.  First, state Boards of Elections and the rules they promulgate cannot violate the requirements of state law.  No state in the country modified the law to make certification anything other than a mandatory, ministerial process. 

Second, unlike 2021, many of the key players responsible for elections in the battleground states such as secretaries of state, attorneys general, and governors are Democrats. Arizona is but one of several examples; the state now boasts a Democrat Secretary of State, Attorney General, and Governor.  Similar situations exist in Wisconsin, Michigan, and Pennsylvania, where Democrats control State Boards of Elections. Unlike 2020, the Supreme Courts of Michigan, Wisconsin, and Pennsylvania are controlled by judges who have shown a healthy respect for democracy.  And even some prominent Republicans have expressed concern.  In Georgia,  Republican Governor Brian Kemp has publicly raised the possibility of dismissing state board members for ethical violations. 

Finally, legal advocates understand the danger posed by these efforts and will file lawsuits to compel election officials to comply with the law.   This is not to underestimate the challenge, nor minimize the need to be both wary and prepared. But the ability to counter these strategies is more developed than it was in 2021. 

Ultimately, the endgame will depend on vote totals.  The larger the margin of a Harris victory, the less likely Trump can use these approaches to create delays and sow chaos in his defeat, and further undermine the legitimacy of our electoral process. If he wins, of course, he will not need these strategies, and we will have much larger problems than debating how we certify elections.