Updated September 04, 2024 at 05:01 AM ET
As the lead election official in one of the biggest counties in a swing state, Derek Bowens is thinking about a lot of things as voting season nears. His county just relocated its elections department into a more secure facility to protect from threats, and it unveiled an app to communicate accurate information directly to voters.
But one thing the election director of Durham County, N.C., is not worried about is election certification.
“I have not thought at all [about it],” Bowens said. “I don’t have any concerns. The law is clear.”
This is the first presidential election since Donald Trump’s sprawling nationwide effort to overturn the 2020 results, and watchdog groups and pundits have been sounding the alarm about the potential for mischief when it comes to certification. Finalizing vote tallies had typically been a mundane part of the election process, but it’s come under new focus, especially after Georgia’s state election board recently gave local boards there more latitude for investigation, even though that could violate state law.
Across the country, dozens of local officials this year are tasked with some role in certification who have shown an openness to refusing to do so, based on disproven or unsubstantiated election conspiracy theories, according to a recent report from the left-leaning Citizens for Responsibility and Ethics in Washington.
Despite that, election experts and the people actually in charge of tallying the votes are still projecting confidence in the certification process. That’s partly because of changes implemented since 2020 and partly because the legal system has shown an ability to be a backstop against political interference in the process.
“I'm feeling better than most people, but maybe that's because I don't freak out about things,” said Charles Stewart, an elections expert at MIT. “All the evidence is that state and federal courts have shut down election officials going beyond their authority and acting on hunches rather than evidence.”
Since 2020, courts have forced certification
Certification is the administrative last step of the elections process, in which local political bodies finalize the work of election officials. Trump’s efforts to sow doubt in voting processes have given way to a new trend in which local Republican officials have refused to finalize results in situations where there are no actual underlying issues.
Still, in every case since the 2020 election where a local body has declined to certify, courts have stepped in to force certification. That’s because generally, state laws don’t allow people in these positions much discretion — if any at all — not to certify, after the election has been held, challenges about voting rules have been litigated through the courts, and the local election administrator has tallied the vote.
Every state does provide some mechanism, outside of the certification process, where voters or candidates can challenge election procedures or results. And in some states, that process can only take place after local certification, so local officials holding it up may be standing in the way of legitimate investigation.
In Pennsylvania, a state that could very well swing the presidential race, Secretary of the Commonwealth Al Schmidt told NPR his office is preparing as though there will be local boards that decline to certify.
“We’re not worried but we will be prepared,” said Schmidt, a Republican who was targeted by Trump in 2020 when Schmidt was a local election commissioner in Philadelphia.
In the 2022 midterms, three different Pennsylvania counties declined to certify elections at the local level.
“And that wasn’t because the election was close, that wasn’t because there was any evidence whatsoever of voter fraud or an election irregularity,” he said.
Members of the local boards disagreed with a court ruling regarding mail ballots in the state, and Schmidt’s office eventually sued to force the counties to comply.
“It's always possible that people can try to interfere with election administration and the timelines, which are pretty strict admittedly,” said Schmidt. “But for us, it's a matter of working closely with the courts to make sure these matters are disposed of expeditiously.”
And since 2020, laws at the state and federal level around certification have only been made clearer, as Votebeat detailed recently.
In Bowens’ state of North Carolina, for instance, those involved in county certification are only to make sure eligible ballots have been counted, and that any mandatory recounts have been completed.
Still, after the 2022 election, two members of a board in Surry County, N.C., declined to certify due to disagreements with a court decision about election rules. The state board removed the two from their posts last year.
“Those who administer elections must follow the law as it is written, not how they want it to be,” Damon Circosta, who was chair of the state election board, said at the time.
Bowens, of Durham County, added: “Under North Carolina law, the statute says a county board of elections ‘shall’ [certify]. It doesn't say, ‘might’ or ‘consider’ or ‘maybe.’ It says ‘shall.’ Our statutes are very clear on how the process works once we've completed the canvassing period.”
Questions about certification can fuel false narratives
Even if these sorts of efforts fail to actually muck up the election process in various places, UCLA election law professor Rick Hasen says they still further false election narratives, which can lead to a host of other potential problems.
“When you have government officials saying the vote counts are not fair, even if there's no basis in doing that, it can spark conspiracy theories,” Hasen said. “It could provide the basis for people to act in a lawless way to try to overturn the results of the election.”
In fact, the first instance in 2020 where certification became a storyline was in Michigan, a state Trump lost by more than 150,000 votes.
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