The dangerous misconception that could muck up the 2024 election
The dangerous misconception that could muck up the 2024 election
Plus, a major development in Richer v. Lake
In mid-November 2020, Michigan’s presidential election process hit a sudden snag. The Board of Canvassers of Wayne County (which includes Detroit) had deadlocked, two-to-two, on whether to “certify” the results.
Thankfully, the impasse was quickly resolved. But Wayne County proved to be an opening salvo in a concerning trend of officials, mostly at the county level and in at least eight states, refusing to certify election results.
The root of all this is, unsurprisingly, election denialism. All the refusers cited conspiracy theories about voting machines, mail-in ballots and dropboxes. Each latched onto purported discrepancies or security failures without any evidence (and even after their claims were proven false).
But here’s the thing: all of these refusals are based on a dangerous misconception that election officials have a choice, at all, when it comes to certification.
Certifying election results is not optional. In technical terms, it’s a “ministerial” duty, not a “discretionary” one. In every one of these instances, refusing to certify was illegal and improper — and so the obstruction was quickly overturned by courts or other institutions.
So if refusing to certify an election is illegal (and sure to be overturned), why should we care? What’s the big deal anyway?
Because we’re likely to see a lot more refusals to certify if Donald Trump loses the presidential election this fall. And while local officials cannot use the certification process to block election results they don’t like, they can still sow confusion and disinformation by theatrically refusing to do their certification duty — amplifying voter distrust, threats to elections and even the risk of violence. A refusal to certify results can also delay the post-election process, which — in extreme cases — could threaten a state’s ability to meet the December 11 federal certification deadline.
In a word: chaos.
What does it mean to certify an election?
Protect Democracy has a new paper out this week: Election Certification Is Not Optional — Why refusing to certify the 2024 election would be illegal.
It dives into everything you need to know about election certification processes. (I know — the amount most people need to know about election certification processes is probably zero. But trust me — chances are pretty high this will be a dinner table discussion come this fall.)
At heart, the misconception comes from the name itself. “Certification” is not an official sign-off or endorsement of election results. Instead, it's just the formal end of the “canvass,” the process of counting and aggregating ballots.
Certification is not designed to resolve issues with an election, to ensure that votes have been accurately counted or to identify irregularities or errors. All of that happens during the canvass itself or subsequent audits or litigation. As a result, certification is generally mandatory even if there are genuine concerns about the conduct or accuracy of an election. In those cases, state law provides alternative mechanisms for candidates, officials or voters to challenge the results. (See here for more.)
All of this is by design — to prevent abuse or manipulation by partisan actors. According to Emily Rodriguez, one of the authors of the paper:
Courts and lawmakers throughout history have shaped the certification process intentionally to protect against manipulation by undemocratic actors. That’s why certification is purely a formal recognition that the election and verification process took place. Allowing certification to morph into a substantive or discretionary choice would be very dangerous — giving politicians a functional veto over the voters.
How to respond if and when counties refuse to certify
But again, even though refusing to certify elections is illegal and pointless, it gets attention and disrupts the process — so it’s likely to keep happening. This is going to get worse before it gets better.
When refusals happen in the future, the important thing is that we all respond appropriately:
State officials and courts must act quickly to protect certification as a ministerial process. If the obstruction escalates further, such as defying court orders — well, there’s a tool for that, too. It’s called “contempt of court.” In some states, a different official — like the Board of State Canvassers in Michigan, for example — can also step in and complete the certification if the local official refuses to do so.
Law enforcement must be prepared to enforce the criminal penalties that many states impose on officials who fail to fulfill election-related duties.
(Note: we’ve already seen this happen. Last November, two supervisors in Cochise County, Arizona were indicted for refusing to certify the midterm elections.)
Finally, media and civil society, including everyone reading this briefing, needs to be careful when we inevitably talk about refusals to certify. These efforts are dangerous and concerning for our democracy — but not because they could succeed. Again, Emily Rodriguez:
There’s no way to block an election by refusing to certify it. But if your goal is to create a media firestorm, cast doubt on election results, cause unnecessary delay and rile up a bunch of angry supporters of a losing candidate? Sure — that you can do.
We need to be consistent and unified behind the core truth: election certification is not optional. If and when officials refuse to certify in service of election conspiracy theories, they are breaking the law. And they are likely to face consequences.
Read the full paper here.
A bipartisan model on AI & elections
A good news story from Madison. Last week, Wisconsin’s governor signed into law a landmark, bipartisan bill regulating the use of AI in elections. Nicole Schneidman, our technology policy lead, and Edgar Lin, our Wisconsin lead, break down why this bill is so cool: Three reasons Wisconsin's approach to AI is a model for other states.
As they write, the law’s secret is its pragmatism: it directly blunts some of the biggest risks around AI and elections without overshooting.
AB 644 focuses on the formats (audio and video) of synthetic content that are especially likely to confuse voters accustomed to trusting their eyes and ears. While questioning text-based information is not new, audiences are only starting to adjust to audio and visual synthetic media being increasingly indistinguishable from human-created content. In the high stakes of political communications, voters can no longer rely on their senses alone.
In other words, Wisconsin bypasses larger, headier conversations about AI and goes right to addressing the most immediate danger: generated audio and video used to disorient or confuse the electorate.
See more on AI risks and recommendations.
Big win for the truth in Arizona
A huge development in our defamation case on behalf of Maricopa County Recorder Stephen Richer against Kari Lake for lies told around the 2022 election.
This week, Lake and other defendants conceded their legal liability, filing a motion with the court asking for what’s called “default judgment” — essentially an agreement that Richer’s claims are true — and a hearing to determine damages. This effectively concedes that they acted with “actual malice” when spreading lies about Richer (which is, in these things, the ballgame).
Because of their actions, my family and I have faced an endless barrage of threats — including calls for our execution. I have lost close personal relationships, and I have had my reputation irreparably damaged.
I have said from the beginning that no one is above the rule of law and [this admission] further validates that belief.
More here.
For more on what this case means, read the Washington Post’s Aaron Blake on “Kari Lake and the Trump movement’s billion-dollar defamation problem”:
These cases are merely those in which the claims were specific enough to provide grounds for a defamation lawsuit — where an individual party suffered an injury. Stolen-election claims have been everywhere, but they’ve rarely led a specific entity to be targeted by Trump backers. When they have, the record for election deniers is ugly.
What else we’re tracking:
Jamelle Bouie on the Trump civil fraud case: No One Is Above the Law, Except, Apparently, Donald Trump. “If there seems to be a different set of rules for Trump, under which there is always a reason to look the other way or give him a second chance, that’s because for all intents and purposes, there is.”
“Guardrails are just people.” That’s the sobering takeaway of Jonathan V. Last’s deep dive on Judge Aileen Cannon. (As we’ve always said at Protect Democracy, the system isn’t self-executing. It’s up to all of us to uphold our democracy.)
Accountability matters: John Eastman, the architect of the plot to overturn the last election, is likely to be disbarred in California for his role.
Russia is amping up online campaigns aimed at blocking aid to Ukraine and influencing the 2024 elections with “harder-to-trace technologies,” reports The New York Times.
There is no good legal reason to delay Donald Trump’s January 6 trial any further, argue Andrew Weissmann and Ryan Goodman in The Atlantic. (Delay check: 107 days.)
Most electoral reform advocates, even those who favor proportional representation (like me), tend to stay within our presidential system. Maxwell Stearns, a law professor at University of Maryland, has a more radical proposal — switch to a parliamentary system, with the president chosen by the House of Representatives.
Janai Nelson, president and director-counsel of the NAACP LDF, has a compelling case for centering representation in Democracy Docket: “change often comes from those who bring descriptive, but, most importantly, substantive representation to the proverbial seat at the table.”
A true must-read from Walter Shaub on Schedule F in The New York Review of Books: “Donald Trump’s plan to destroy civil service protections if reelected is more than an employees’ rights issue. What’s at stake is democracy itself.”
Reminder — If you can keep it is growing, with more insights from more experts. If you like this briefing and want even more, click here.