Election fact check: It's illegal for county officials to refuse to certify election results
With former President Donald Trump escalating his attacks on the integrity of the upcoming election, experts are warning that the election certification process could present an opportunity for rogue local officials to attempt to unlawfully challenge the results.
Local officials are legally required to certify election results, but the process has become increasingly politicized since Trump attempted to overturn the 2020 election, with local officials signaling a willingness to defy their legal duty to certify, according to experts and a recent watchdog report.
The politicization of the certification process comes as Trump has repeatedly cast doubt on the integrity of U.S. elections.
“They want to cheat," Trump said at a rally Saturday in North Carolina regarding his opponents. "And they do cheat. They cheat like hell."
Since the 2020 election, more than 30 local election officials in eight states -- including key swing states like Pennsylvania, Georgia, and Arizona -- have voted to delay or deny certifying election results, according to a report from the watchdog group Citizens for Responsibility and Ethics in Washington.
Legal experts believe these challenges are unlikely to succeed in the upcoming presidential race -- but have the potential to sow further distrust in the integrity of the election.
"I do expect that there will be local election officials who refuse to certify," said Sean Morales-Doyle, a voting rights expert at the Brennan Center for Justice, a nonprofit think tank. "Every time this has been tried before, courts have put a quick end to it ... but what they might do is undermine the public's faith in our process, and that's really damaging in and of itself."
Morales-Doyle said that officials who refuse to certify election results often attempt to take advantage of a common misunderstanding about their role in the monthslong process that follows the November election. Election officials participate in a process called "canvassing" to ensure that every vote is counted in the final tally, including reviewing ballots and confirming the total number of votes cast. Most states also audit their election equipment following the election to confirm votes were properly counted.
Election certification is the final administrative step in the process after the earlier canvas and audits identify and resolve irregularities. By certifying the election results, election officials confirm that those earlier steps were completed.
"What they are supposed to do is certify the numbers of votes they counted. They're not supposed to stick their nose in the validity of the votes," said Robert McWhirter, a constitutional lawyer.
Since the 2020 election, local officials in at least eight states have attempted to use their largely ministerial duty in election certification to delay or deny certification, according to Citizens for Responsibility and Ethics in Washington.
One of those officials -- Washoe County, Nevada, Republican commissioner Michael Clark -- told ABC News that he voted against certifying local election results in July because he believes county officials failed to properly maintain voter rolls.
"I believe that the people that are running the registrar of voters office can't keep accurate records," Clark said. "When I see sloppy bookkeeping, I don't trust it."
Washoe County officials acknowledged issues with some of their retuned ballots but recently upgraded their voter registration system.
After Nevada Attorney General Aaron Ford threatened to prosecute Clark for failing to do a duty of his office, he reversed course and allowed the certification to continue.
In Cochise County, Arizona, a Republican supervisor who declined to certify the 2022 midterm election pleaded guilty to a misdemeanor charge last month, with her probation agreement requiring her to certify the upcoming election. Peggy Judd told ABC News she understands her ministerial responsibilities better now, but disagrees with the requirement that she certify elections "no matter how rotten it looks or smells."
In response to similar cases, some courts have strengthened the laws governing certification. Last month, a state judge in Georgia issued a directive that officials have a mandatory duty to certify election results, rejecting the argument that officials can block the results due to allegations of fraud.
"Election superintendents in Georgia have a mandatory fixed obligation to certify election results," Judge Robert McBurney wrote. "There are no exceptions."
That's because irregularities and alleged voter fraud are identified and resolved throughout the election process, including through the canvassing procedure and through referrals to law enforcement.
"There are processes in law where someone alleges that some irregularities that would have resulted in the different results in the election occur," said Paul Cox, general counsel of the North Carolina State Board of Elections. "Absent that, though there is no basis for a county board of elections to withhold certification of the vote count."
After two officials in North Carolina refused to certify their county's 2022 election result, the North Carolina State Board unanimously dismissed both officials last year.
While attempts to delay or deny certification are likely to be rejected by courts, experts warn that the efforts themselves can still create distrust or play into a broader strategy to cast doubt on election integrity.
"They've been planning out their playbook for some time now," Morales-Doyle said of Trump's questioning of the election's integrity. "One of the clear elements to that playbook is to try to use various institutions and people in positions of authority to provide a veneer of legitimacy to the attempts to overturn the outcome of the election."
