Election certification under threat
A legal roadmap to protect the 2024 election including from 35 officials who have refused to certify results
In this report, CREW identifies 35 rogue election officials across the country who have already refused to certify election results and may be in a position to do so again. The report focuses on the eight states where county officials have unlawfully refused to certify elections since 2020: Arizona, Colorado, Georgia, Nevada, New Mexico, North Carolina, Pennsylvania and Michigan. The report also identifies the legal remedies available to state and federal authorities, as well as voters, to protect the certification of the 2024 election.
In the aftermath of the 2020 election and the January 6th insurrection, threats to the election certification process have escalated, now with an increasing focus on county-level certification. Since 2020, more than 30 county officials across the country have voted to deny or delay certifying election results in violation of law, often citing false claims of voter fraud or irregularities. Among those officials are avowed 2020 election deniers, individuals who acted as fake presidential electors for Donald Trump and a criminally convicted participant in the January 6th insurrection who was later removed from office in a lawsuit led by CREW.
In this report, CREW identifies 35 rogue election officials across the country who have already refused to certify election results and may be in a position to do so again. The report focuses on the eight states where county officials have unlawfully refused to certify elections since 2020: Arizona, Colorado, Georgia, Nevada, New Mexico, North Carolina, Pennsylvania and Michigan. The report also identifies the legal remedies available to state and federal authorities, as well as voters, to protect the certification of the 2024 election.
These remedies include emergency court orders to compel compliance with the law, criminal charges to punish and deter misconduct and legal procedures to remove obstructionist officials from their county positions.
So far, states have shut down these dangerous efforts to sabotage the certification process—including in Arizona and New Mexico where state authorities secured emergency court orders, called writs of mandamus, compelling county officials to follow the law. But the threat of disruption looms large in this year’s election.
If county officials successfully obstruct certification, it could have a cascading effect on state and federal certification deadlines. It could also lead to mass disenfranchisement of qualified voters.
County certification is the culmination of the process by which votes are counted and reported to higher authorities. State laws make clear that certification is non-discretionary. It is not an opportunity for county officials to politically grandstand, lodge protest votes against election practices they dislike or investigate suspected voter fraud. The point of certification is not to verify the truth and accuracy of the election as a whole, but rather to confirm that county officials completed verification processes outlined in state law.
“State laws make clear that certification is non-discretionary. It is not an opportunity for county officials to politically grandstand…”
State laws provide robust mechanisms outside of the certification process—including recounts, audits, evidentiary hearings before state election boards and election contests in court—to address suspected fraud and errors. These are the legally-designated avenues for resolving the rare cases where genuine problems arise in an election, not the certification process. When county officials stray outside of their lane to perform tasks the law does not assign to them, they are disrupting the administration of state election laws and exposing themselves to potential civil and criminal liability.
For statewide races and races across multiple counties, county certification marks the end of one phase of a multi-step election process, and it must occur by a hard deadline to ensure later state and federal certification deadlines are met. If county officials try to obstruct this process, state and federal laws provide effective mechanisms to compel certification by statutory deadlines and to punish misconduct.
That election certification is a ministerial, non-discretionary function has been a settled principle of American election law since the turn of the twentieth century, when state courts across the country shut down partisan attempts by county officials to refuse to count lawful votes. But some officials emboldened by former President Trump’s 2020 election denial movement now seek to weaponize this routine government process, undermining the foundations of our election infrastructure.
Their reasons for denying or delaying certification have often been brazenly lawless. (As used in this report, “refusal to certify” means voting either to delay or deny certifying election results.) For example:
- Couy Griffin, the former county official in New Mexico who a state court removed from office for engaging in the January 6th insurrection, stated: “My vote to remain a ‘no’ isn’t based on any evidence. It’s not based on any facts…It’s only based on my gut feeling and my own intuition.”
- Jerry Forestieri and Timothy DeHaan, two former county officials in North Carolina who the state election board removed from office, said they were voting against certification to protest a federal court ruling from several years earlier that they claimed was “illegal” and “pervert[ed] our election practices.” DeHaan admitted “[w]e feel the election was held according to the law that we have, but that the law is not right.”
- Ron Gould and Hildy Angius, two current county officials in Arizona, said their votes to delay certification were purely a “political statement” to protest election practices in a different county.
County officials in other states, such as Georgia and Pennsylvania, have offered a veneer of legal justification for refusing to certify. Others have withheld certification based on arbitrary and shifting demands for non-essential election records. No matter these officials’ motives or the sincerity of their concerns, the law gives them no “discretion” not to certify.
As the Georgia Supreme Court explained more than a century ago, “[t]he duties of [election] canvassers are purely ministerial; they perform the mathematical act of tabulating the votes of the different precincts as the [election] returns come to them.”
In recent years, conspiracy theories about elections and the certification process have contributed to an increase in violence, threats, harassment, doxxing and other forms of intimidation toward election workers. While we strongly advocate using appropriate legal mechanisms to hold accountable any county election official who defies the law, violence and intimidation have no place in our democracy, regardless of any misconduct by government officials.
State-by-state analysis
Federal legal remedies
Because the states administer elections, they are the first lines of defense against county-level certification subversion. But the federal government also has a vital role in enforcing relevant federal statutes and constitutional provisions protecting the right to vote. Thus, if a state is unable or unwilling to take action against rogue county officials who threaten to disenfranchise voters in violation of federal law, the U.S. Department of Justice should intervene.
Here are some of the federal criminal and civil remedies available to protect against certification abuse at the county level:
Sections 11(a) and 12(c) of the Voting Rights Act
Section 11(a) of the Voting Rights Act (VRA) (codified at 52 U.S.C. § 10307(a)) is the federal statute most clearly implicated by a county official’s willful refusal to certify election results. It provides: “No person acting under color of law shall…willfully fail or refuse to tabulate, count, and report” a “vote” of any “person…qualified to vote.”
Section 12(c) of the VRA (codified at 52 U.S.C. § 10308(c)) makes it a crime to conspire with others to violate other provisions of the VRA, including section 11(a).
18 U.S.C. § 241 (conspiracy against rights) and 18 U.S.C. § 242 (deprivation of rights under color of law)
County officials’ refusal to certify could also violate what federal prosecutors have called the two primary statutes that criminalize the actions of governmental officials who abuse their authority to deprive their fellow citizens of their constitutional rights: conspiracy against rights, 18 U.S.C. § 241, and deprivation of rights under color of law, 18 U.S.C. § 242.
Under 18 U.S.C. § 241, it is a felony to “conspire to injure, oppress, threaten, or intimidate” an individual “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” including the right to vote and to have one’s vote counted.
Under 18 U.S.C. § 242, it is a misdemeanor for any person acting under color of law to “willfully” deprive a person “of any rights, or immunities secured or protected by the Constitution or laws of the United States,” including the right to vote and to have one’s vote counted.
Other federal provisions
County officials’ refusal to certify election results could also implicate various other federal constitutional and statutory provisions, including the First, Fourteenth and Fifteenth Amendments and section 101(a) of the Civil Rights Act of 1964, which bars states from denying the right to vote based on an error or omission that is not “material” to the voter’s qualifications.