Threaten consequences

Election officials threaten consequences for counties trying to stop certification

State election officials stress that certifying elections is a ministerial function — local election officials are duty-bound to certify results, and that it is not optional.

By Zach Montellaro and John Sakellariadis

Battleground state election officials say their offices have prepared for a swift certification process — and warn of consequences for any county officials who try to disrupt it.

Some states have already drafted legal filings and are ready to immediately head to court to force any county to certify its results if it tries not to. Others are threatening criminal prosecution for local officials who delay the process — pointing to a handful of cases already underway.

The effort to preempt county-level certification fights comes amid fears that allies of Donald Trump would try to overturn the election if he loses. The former president has ramped up attacks on the election system — particularly in the swing state of Pennsylvania — and a handful of counties have tried to refuse certifying their results in recent elections.

“If you don’t certify an election at the county level, or certify a canvas, you’re going to get indicted,” said Arizona Secretary of State Adrian Fontes. “We’ve sent, on top of that, some what I would call sternly-worded letters out to folks to let them know.”

Election certification had long been a publicly overlooked part of the process, with local and state officials affirming the results of the election long after the winner was known. The important but largely clerical function was thrust into the spotlight after Trump lost in 2020 and his allies desperately looked for ways to keep him as president.

In 2020, Republican members of Wayne County, Michigan, which includes Detroit, briefly voted not to certify results — under pressure from Trump himself — before abruptly changing course. In 2022, a few counties in Arizona, Pennsylvania and New Mexico initially did not certify results or did so with incomplete results.

Officials and watchdog groups fear those incidents were only a dress rehearsal should Trump lose the election Tuesday. In the last four years, more than 30 county officials have voted to either block or delay certification, according to a report from Citizens for Responsibility and Ethics in Washington, a liberal watchdog group — with worries that many more local officials are quietly waiting in the wings to do the same in the upcoming weeks.

Election officers from across the country say they’ve been preparing contingency plans if a county tries to slow down certification. Top election officials in battleground states say they’ve game-planned various options and warned potential defectors of consequences if they try to gum up the certification process.

Michigan Secretary of State Jocelyn Benson said attorneys have already prepared draft legal filings to sue any county that tries to not certify.

“We’ve got great attorneys that we’re working with at the attorney general’s office, who are prepared as well, who were there in 2020 and ready to go,” she said. “It’s more about just making sure we’re able to rapidly respond and are prepared to ensure that the law is followed.”

Fontes told POLITICO that his office held several meetings with the governor’s and attorney general’s offices to prepare a response.

Gabriel Sterling, the chief operating officer of the Georgia secretary of state’s office, said in a September briefing with the Center for Election Innovation & Research, it was a myth that a single county could hold up a state — or the nation.

“There are those who think they can magically hold up everything by one county … That is not going to happen, and the courts won’t allow for that,” he said. If needed, he said, the state would seek a court order to compel officials to certify the votes.

“With the system we have in place, with the lawyers we have in place, we have game-planned a lot of this out,” he added.

State election officials stress that certifying elections is a ministerial function — local election officials are duty-bound to certify results, and that it is not optional.

Some of the confidence from election officials stems from the judiciary: Courts have repeatedly ordered county officials to certify their results in recent years. In New Mexico, Secretary of State Maggie Toulouse Oliver sued after the Otero Board of County Commissioners voted unanimously after the 2022 primary to not certify results, citing unfounded conspiracy theories about the use of Dominion voting equipment. The state Supreme Court ordered the next day that the county certify results. Pennsylvania that year also successfully sued three counties amid a certification fight over which mail ballots to count.

This year, watchdogs and officials say, there have already been some reassuring early rulings from state courts that should make it clear to local officials that their obligation to certify is not discretionary and must be done.

A Republican member of the Fulton County, Georgia, board of registration and elections sued seeking a ruling that her duties as a board member were discretionary. She instead got the exact opposite, with a state judge declaring that certification is mandatory.

And a different Georgia judge blocked a rule instituted by Trump allies on the state board of elections that would have required county officials to conduct a “reasonable inquiry” — left undefined — before certifying the results.

Fontes, the Arizona secretary of state, tried to put a rule in the state’s elections procedure manual that would have allowed him to certify statewide results even if a county refused to certify — what he called the “nuclear option.”

The Trump-aligned America First Policy Institute sued to toss that rule out and won, with a federal judge warning in September that such a move could disenfranchise voters in those counties. Arizona appealed the decision recently, which won’t impact this year’s election.

But Fontes described that court ruling as a “pyrrhic victory” because “the judge was very, very direct and adamant in his ruling about saying that this is a ministerial duty and it is a statutory duty” and that local officials must certify.

Benson, the Michigan secretary of state, said that although “laws have been clear since before 2020 that these roles are ministerial,” a sweeping voting-related ballot measure in 2022 and related tweaks to the law “reaffirmed and clarified that.”

State officials also point to penalties that local officials who have delayed or refused to certify have faced as a powerful deterrent.

Two county supervisors in Arizona who sought to delay certification in 2022 were criminally charged, and one pleaded guilty in October to a misdemeanor.

Election officials say that after 2020, they’re better prepared to deal with post-election challenges to the final result — regardless of who may win.

“We are planning for the worst, but hoping for the best,” said Toulouse Oliver, the New Mexico secretary of state. “We are thinking a lot more about this in 2024 than we did in 2020.”