New rules in Georgia governing how local officials finalize vote totals have some election watchdogs worried that loyalists of former President Donald Trump could trigger a crisis if he loses the state in November, by abusing their authority to delay or avoid certifying results.
Election experts say they’re confident that the system’s checks and balances will quash those efforts and that each state has the legal authority to force members of county election boards to fulfill their duty to certify results. But they and state election officials are still concerned that the attempts could push the process close to strict deadlines and stoke doubts about the integrity of the election.
The canvass of votes and certification of results is an important step, and it has to happen according to strict deadlines. The initial tally of election results posted on election night remains unofficial, while election officials check the tallies, investigate whether provisional ballots should be counted, check for errors on absentee ballots, and process or accept mail or military ballots.
Deadlines in state laws dictate when local officials must certify results as complete and accurate, followed by state officials. For presidential results, those certifications then allow the Electoral College to proceed. The Electoral Count Reform Act passed by Congress in 2022 cements the timeline by which states must submit their certified slate of electors, which this year is Dec. 11.
Things can go wrong. Election officials often find small discrepancies, and work to resolve or explain them. But experts stress that certification is a ministerial step — not subject to personal judgments and not intended to resolve legal challenges to the election. Those are typically handled in other parts of state law, and often can’t proceed until the election is certified.
While the rule changes have put Georgia in the spotlight in recent days, several other swing states are also bracing for battles over the administrative process known as certification.
Each state handles certification differently, and the process used to be a routine part of election administration that took place mostly behind the scenes after votes were cast. That changed after the 2020 presidential election, when some Republican members of Michigan canvassing boards initially refused to vote to certify the results amid challenges from Trump, though they ultimately did so.
Since then, some local officials in states including Georgia, Arizona, Michigan, Nevada, and Pennsylvania have declined to certify elections, often at heated public meetings packed with people airing unsupported conspiracy theories or baseless allegations of election fraud.
In every such case, after intervention by state officials or the courts, the election was certified.
Several swing states, including Arizona and Michigan, have taken steps since 2020 to explicitly clarify that local officials cannot legally refuse to certify election results, and to spell out potential consequences if they try, including criminal charges.
But experts say that contentious certification processes erode trust in elections, and they’re wary of rule changes, such as the ones in Georgia, that could be used to justify delaying or refusing certification.
“I think courts are equipped to handle this,” said Derek Muller, a law professor at the University of Notre Dame who specializes in election law and has blogged about the changes in Georgia. “The problem is really foaming up the public anger and dissension.”
Nathaniel Persily, a Stanford University law professor who specializes in election law, agreed. “I don’t think this particular problem is an unsolvable one or one that the courts are unable to address, but it’s emblematic,” he said. “The fact that we are even talking about it as a possibility tells you about the multiple fronts on which the war for a secure election is being fought.”…