What would happen if a state official refused to certify an election?


At the rate they’re winning nominations, it’s almost certain that some 2020 election deniers will hold office next year. A Washington Post analysis in June found that more than 100 Republican primary winners support former president Donald Trump’s false claims of election fraud — including people who, if they won, would be in a position to subvert legitimate election results, like governors and secretaries of state.

Arizona, in particular, has become a hotbed of election deniers. Republican candidates for top positions statewide back Trump’s claims that he, not Joe Biden, won the 2020 presidential election — from Kari Lake, the GOP’s nominee for governor, to the GOP picks for U.S. Senate, secretary of state and attorney general. (Though we should note that not all Republicans who have jumped on Trump’s election fraud claims have won their primaries.)

If these candidates win in November, the entire state apparatus could refuse to certify the next presidential election results.

What would stop them? Let’s explore.

How would someone thwart an election?

Their main route: not certifying legitimate election results. People at all levels of an election could theoretically do this, from a poll worker on up to the governor simply refusing to sign off on the paperwork.

This scenario is a different from one where there’s real evidence of actual fraud. In those rare cases, the U.S. election system is set up to investigate it: In North Carolina four years ago, election officials threw out the results of a congressional race after an aide to the Republican candidate was suspected of — and later convicted of — ballot fraud.

But, as happened in 2020, GOP candidates started claiming election fraud before results are even in — and this year some counties have refused to approve primary results.

In Arizona, Lake said she wouldn’t have certified the 2020 results if she had been governor. Mark Finchem has been a leading driver of baseless claims about fraud in Arizona’s largest counties — and if he’s elected as secretary of state, he could be in a position to run that state’s elections.

What would stop these officials from wreaking havoc with an election?

A couple of things, experts say. Every state runs its own elections as it sees fit, but there are nationwide, built-in protections to stop rogue actors from taking over.

1. Other election officials: Say an individual poll worker refuses to certify results. Other poll workers will step in and sign off on the results. Or say an entire county board won’t certify results, as happened in rural New Mexico in June. In that case, the secretary of state — a Democrat — got a court order mandating these local officials sign off on the results, or risk losing their jobs.

“The few instances when we’ve seen people try to do something along these lines, it has resolved the right way because the law does try to prevent these things from happening,” said Sean Morales-Doyle, acting director of the Brennan Center’s Voting Rights Program.

2. The courts: Say that there are no elected officials willing to step in and sign off on the results because election deniers hold so many offices. The aggrieved candidate would sue, and the courts have the authority to force that public official to sign off on results. This is a fairly safe backstop, experts say. Trump’s 2020 campaign lost more than 60 lawsuits across the country, and sometimes judges he had appointed ruled against him. As he pressured Vice President Mike Pence to simply reject the electoral college results, Trump lawyer John Eastman privately acknowledged that doing so would “lose 9-0” in the Supreme Court, according to a Pence aide who testified to the Jan. 6 congressional committee.

“What we saw in 2020 and in the meantime, for the most part, has been that the courts have taken their oath and their constitutional responsibilities seriously, and have looked at the evidence,” said Tammy Patrick, a former federal compliance officer for Arizona’s largest county, Maricopa.

3. Public pressure: The election experts we talked to stressed that democracy is only as good as the people who make up its institutions. In 2020, when two Republican county officials overseeing Detroit’s election results initially refused to sign off on them, deadlocking the board, the public backlash quickly changed their minds.

Those protections are in place now. But …

Election experts to whom we talked say that there is a real possibility that the election deniers who win in November will then push policies eroding some of these protections. Here’s what keeps these experts up at night:

1. Elected officials changing state laws to make it easier to subvert elections: The Brennan Center has been tracking proposed state laws to make it harder to vote and easier to change election results. Last year, lawmakers introduced hundreds of bills to restrict voting access or empower partisan officials. Dozens were enacted. States such as Georgia and Texas have significantly expanded the rights of partisan poll watchers to question election results, for example. Other states have passed laws that experts say would have a chilling effect on election workers, by criminalizing them for making mistakes.

2. Battered election officials calling it quits: To be an election official in America these days can mean receiving death threats for doing your job, as former Georgia election worker Wandrea ArShaye “Shaye” Moss testified to the Jan. 6 committee this summer.

Patrick, the former election official in Maricopa County, said these threats aren’t slowing down. “Election officials are under-resourced, underfunded, under appreciated — and now they are under attack,” she said. She said she talked to one Republican election official in a Trump county in Wisconsin who told her, “I used to be the pillar of my community, and now I’m being treated like the pariah.” Patrick worries that many of these officials and their institutional knowledge will leave the field — although they’re needed more than ever.

3. Could the Supreme Court overturn long-standing election precedent? This fall, the court will consider opening the door for state legislatures alone to decide how to allocate election results, which could result in the other cogs of government currently involved — like state courts or even a state’s constitution — getting pushed out.

4. Politicians hacking away at people’s confidence in democracy: Nearly two years after Trump lost, polls show a majority of Republicans still incorrectly believe the election was stolen. Many GOP politicians have pointed to the public doubt that they helped sow as a reason to object to legitimate election results. They framed their objections as a necessary check on the system, but democracy experts see this practice as much more corrosive.

“Every time someone spreads the lie that our elections were stolen,” said Morales-Doyle with the Brennan Center, “every time someone says that they would refuse to certify the outcome of an election — and then every time someone tries to do just that — it does damage to our democracy.”


Source: WP