It Is Time To Protect the Certification Process
In state after state — from Florida to Montana — Republican legislatures are enacting laws making voting more difficult. These laws, which often target minority and young voters, are a scourge on our democracy that threatens the right to vote in order to gain partisan electoral advantage.
Though Congress has taken notice, progress has been difficult. While the House of Representatives passed the For the People Act (H.R. 1), which would preempt many of the worst of these new state laws, passing it in the closely divided Senate has so far proved more difficult. Additional legislation is also in the works — including the John Lewis Voting Rights Advancement Act, which would restore a critical portion of the Voting Rights Act that was struck down by the Supreme Court.
While most of the legislative focus has been on the registration and voting process, significantly less attention has been paid to another point of vulnerability in our election system — the rules for tabulating and certifying elections. The right to vote is hollow if it does not include the right to have your vote counted and, if your candidate receives the highest number of votes, to have her assume the office to which she was elected. Republicans are taking aim at this vulnerability.
Historically, the period between election night and Inauguration Day was celebrated as the peaceful transfer of power. Diligent election officials rechecking their math to ensure every lawful vote was accurately counted gave confidence to the public that elections were fair, free and honest.
While there have been occasional disputes in close elections, they have not centered on the election certification process. In his 2000 concession speech, Al Gore noted that “other disputes have dragged on for weeks before reaching resolution and each time, both the victor and the vanquished have accepted the result peacefully and in the spirit of reconciliation.”
Unfortunately, Donald Trump offered no similar words of reconciliation. Instead, Trump used the time when we have traditionally celebrated democracy to degrade it. In the days between November 3, 2020, and January 20, 2021 (and continuing ever since), he fought tooth and nail to disrupt the peaceful transfer of power, including improperly pressuring those responsible for certifying elections to ignore their duty to count every vote.
In Michigan, for example, Trump and his allies waged efforts to prevent Michigan from certifying its election results.
First, there was a concerted effort to pressure the Republican members of the Wayne County Board of Canvassers not to certify the election results in the state’s largest county and home to the city of Detroit. Initially, the two Republican members of the bipartisan four-person Michigan State Canvassing Board blocked a move to certify the votes, producing a party-line deadlock that Trump celebrated. Later that evening, after public pressure mounted, both Republican Board members reversed their votes and the election results were unanimously certified. Had the Republican members not reversed their votes, Michigan would have faced an unprecedented failure to certify its election results for president.
When that effort failed, an intense campaign was aimed at the two Republican members of the four person Michigan State Canvassing Board. In the end, one of the two Republican members succumbed to the pressure and refused to certify the results by abstaining. Had he been joined by the other Republican member, Michigan would have again faced a failure to certify its election results for president.
While these efforts did not succeed in 2020, there is no guarantee that they will fail again in the future.
Since the violent insurrection on January 6, Trump and his allies have turned their attention to the state processes that are used to certify election results. In a number of states, they are enacting laws and policies that weaken fair election administration and nonpartisan election certification. In Georgia, for example, a new law allows the state legislature to effectively control the counting and certification process — stripping the secretary of state of some of his authority as retribution for his handling of the 2020 post-election and certification process.
It is clear that we need new safeguards to ensure a fair counting of ballots and certification of the winner.
First, the powers of state officials in the certification process must be clearly defined and limited. State officials responsible for certifying federal elections should not be allowed to rely on any information other than the election returns themselves. The job of a state official reviewing election returns for certification is to make sure the math is correct, nothing more. A state official who fails to abide by their duty should be subject to immediate removal.
Second, it is time to remove unnecessary steps in the certification process. With current technology, there is no longer reason for local boards of election to certify election results before passing them on to the state. While it may be charming to have villages, towns, cities and counties have a role in the process, our democracy can no longer afford to have these additional links in the certification chain. Once the local election officials have completed their final counting, they should provide those results to the state official in charge of elections.
Finally, Congress should abolish the requirement that a state’s governor, secretary of state, or partisan election board issue and sign the final certificate of election. Instead, Congress should require — for federal elections at least — that states certify their elections via a three-person certification commission that is comprised of the state’s chief justice, the justice who most often voted contrary to the chief justice in published decisions of the state supreme court during the year prior and a third justice to be chosen by those two justices. This certification commission would be responsible for reviewing the results, tabulations and underlying election records to ensure that the final certified results are accurate. The signatures of at least two of those commission members would be required on the certificate of election to have a binding effect.
The solution I propose will not solve every problem of election administration or post-election dispute. It won’t, for example, address many of the shortcomings of the Electoral Count Act, including Congress’s role in certifying presidential elections. Nor would it affect each House of Congress’s unique authority to “Judge of the Elections, Returns and Qualifications of its own Members.”
Nevertheless, these three steps to narrow, shorten and depoliticize the election certification process will help ensure that the candidate who receives the most votes is declared and certified the winner. It will also help restore the confidence in our election system that Trump continues to attack.