After Election Day: The Basics of Election Certification
There is an immense amount of focus — and, rightfully so — on the rules that govern voting and ensure voters have access to the ballot box. Today, however, we’re taking a look at what happens after Election Day.
In this Explainer, we outline how election results are certified — starting with local and state election officials and in the case of presidential races, going all the way to Congress — and highlight the points throughout this process that are most vulnerable to bad actors seeking to subvert elections.
The first steps of election certification take place on the local level, then the state level.
Election administration in the United States is highly decentralized; each state has different rules for whether local election administration is handled at the county, city or town level and whether elections are run by a single individual, board of commissioners or a combination of the two. There are more than 10,000 election administration jurisdictions in the U.S., ranging from small towns with a few hundred registered voters to Los Angeles County with over 5.6 million registered voters.
Consequently, the local officials who handle the day-to-day operations of elections are also the first juncture in the post-election process. After the polls close, local election officials are responsible for counting ballots, including mail-in ballots (in some states, mail-in ballots are accepted several days after Election Day if postmarked beforehand). Officials then process provisional ballots and conduct a “canvass” — the tabulating, double-checking and transmitting of the results from the local jurisdiction to the state.
Next, the certification of election results is conducted at the state level, either by a state board of elections or the state’s chief elections officer (in 47 states, that’s the secretary of state). While the canvass counts and confirms the ballots cast, the certification finalizes the results based on the canvass. The exact procedures and deadlines vary by state, but the election officials, secretary of state or governor must sign a certificate of election in the case of U.S. House or Senate results and a certificate of ascertainment for presidential results.
Vulnerability: The 2020 election illustrated how local and state officials can refuse to certify results.
Even though President Joe Biden secured a clear victory in Michigan in 2020, the aftermath of that election demonstrated what can go wrong. Under pressure from Donald Trump and the Republican party, GOP members on a bipartisan canvassing board in Michigan’s largest county initially refused to certify the election results. These members ultimately reversed their decision, agreeing to the results that they then sent to the Michigan State Canvassing Board. Once again, one of the two Republican members of the state board refused to certify the results by abstaining. Since the other Republican member did not succumb to mounting GOP pressure, the board reached its three-fourths threshold to certify the results and sent them to the governor and secretary of state for an official signature.
There are several more steps in order to certify presidential election results, starting with the Electoral College.
In the U.S., voters select their president and vice president indirectly through the Electoral College. To win the presidency, a candidate is not elected by popular vote, but by receiving at least 270 out of the 538 electoral votes. When the founding fathers wrote the U.S. Constitution, they selected the Electoral College as a compromise — a balance between being elected by popular vote and being elected by Congress. These members of the political elite were concerned about uneducated masses swaying the results and small states being overlooked. Consequently, Article II of the U.S. Constitution (and later 12th and 23rd Amendments, plus the Electoral Count Act (ECA) of 1887) established the Electoral College and outlines what happens between Election Day and the presidential inauguration:
- After states certify their election results, they appoint electors according to those results.
- The electors meet mid-December in their respective states and send their certificates of ascertainment to several federal governing bodies. However, states must settle any questions or contests at least six days before this meeting of electors — this so-called “safe harbor” deadline was a crucial component in Bush v. Gore (2000).
- Congress meets in a joint session to count the electoral votes — a routine procedure in past years that the country gave more focus to in 2021. This takes place on Jan. 6.
Additionally, the electoral college is a “winner-take-all” system, meaning that whichever candidate wins the majority or plurality of the state popular vote, even if by the smallest of margins, they win all of the electoral votes (the exceptions are Maine and Nebraska, who divide their electoral votes by congressional district). The number of electoral votes allocated to each state is dependent on population size and is equal to a number of senators (two) plus House representatives. Washington, D.C. also gets three electors despite having no voting representation in Congress. Each state has a different process for selecting electors, but they are typically lawmakers or activists with ties to the state Democratic or Republican parties.
Vulnerability: Can electors cast a vote for a different candidate than the one that won their state?
Hypothetically, yes. But it doesn’t pose a significant threat to our elections. During the 2016 presidential election, there were seven electors who voted against the popular vote in their state. Before then, there was only one rogue elector in each of the following years: 2004, 2000, 1988 and 1976. This occurrence is exceedingly rare and 32 states have laws that remove or penalize “faithless electors”; in 2020, the U.S. Supreme Court ruled that these types of laws are constitutional. While there are legitimate concerns over the Electoral College as a fair or truly democratic system, realistically, elections will not be overturned through this process.
The final procedure before presidential inauguration is Congress’ counting of electoral votes.
In 1876, the trajectory of post-Civil War Reconstruction hinged on the disputed presidential election results between Rutherford Hayes and Samuel Tilden. Hayes prevailed, but the constitutional crisis prompted lawmakers to spend the next decade devising a law, the 1887 ECA, that outlined Congress’ procedures for election certification.
The ECA prepares for two potential scenarios — first, if two or more sets of electors are sent from one state (this is what occurred with four states in 1876) or second, if only one set of electors is sent but objections are raised that votes were not “regularly given” or an elector not “lawfully certified.” If an objection is made in writing by at least one senator and one representative, the joint session is suspended while the two chambers meet separately for a maximum of two hours of debate. Then, a majority vote is taken to accept or reject the objection.
Vulnerability: Last January, we saw what happens when members of Congress object to election results.
This isn’t the first time objections have happened during the joint session — in 2005, two Democratic members of Congress objected to President George W. Bush’s victory in Ohio, but both chambers overwhelmingly rejected this objection. Following the 2000 and 2016 elections, several House members planned to object but found no senators to join them.
What happened in 2021 was unprecedented, in scale and context — Republicans objected to results in Arizona, Georgia, Michigan, Nevada and Pennsylvania. Only the objections to Arizona (which was interrupted by the violent insurrection on the Capitol) and Pennsylvania were supported by senators and went to a vote. In total, 147 Republicans objected to the results in those two states. Additionally, one of Trump’s lawyers wrote a memo outlining a procedure for then-Vice President Mike Pence to overthrow the results altogether.
Last January, the objections delayed the process but did not derail it altogether. While 147 objectors is an astonishingly high amount, there were still enough Republicans who did not follow their party’s baseless claims, including Senate Minority Leader Mitch McConnell. Ever since, the GOP has not only normalized Trump’s “Big Lie,” but made it a central pillar of their party, a concerning trend for 2024 and 2028.
Reform to the ECA is long overdue. But the greatest points of vulnerability occur much earlier on in the post-election process.
No doubt, the ECA is unclear and outdated. The Campaign Legal Center called the ECA “rife with gaps and ambiguities” and outlined just a handful of its weaknesses: making it exceptionally easy for individual members of Congress to derail election results, providing no mechanism for resolving disputes if Congress deadlocks and permitting states to resolve election contests without guidance.
However, it is crucial to remember that election subversion doesn’t just happen for presidential elections and that the task of certifying elections passes through many hands at the state and local levels. For example, Georgia’s voter suppression bill passed earlier this year hands the state General Assembly more control over the state board of elections. Just last week, the New York Times reported on the plans of Wisconsin Republicans to give state lawmakers more control over the election process, undermining Gov. Tony Evers (D), the bipartisan Wisconsin Elections Commission and other nonpartisan election administrators.
In an earlier piece from this year, Marc Elias wrote about three solutions: defining and limiting the power of state officials in the certification process, removing unnecessary steps in the certification process and creating a certification commission for signing the final certificate of election, instead of partisan actors like governors, secretaries of state or election boards.
Ahead of the 2022 midterm elections, we need to mobilize to elect candidates who uphold democracy. There are already “Big Lie” conspiracists launching campaigns to become secretary of state in Arizona, Georgia, Michigan, Nevada and elsewhere. Though convoluted and in need of reform, the election certification process is fundamental to the integrity of our democracy — it ensures that the ballots cast on Election Day are the ballots counted, and the people we elect are certified for office.