Message to Counties: Certifying Elections Is Not Optional

Reports of the death of the “Big Lie” seem premature. After most, but not all, statewide candidates who denied the outcome of the 2020 election were defeated in 2022, many people celebrated that election denialism was on the wane. But, then counties in Arizona and Pennsylvania said: Not so fast.

In both states, a single county — Cochise County, Arizona and Luzerne County, Pennsylvania — willfully refused to meet the states’ deadlines to certify election results. In both cases, local Republican election officials voted against accepting election results that they had a clear, unambiguous duty to certify. Facing constituents who show up to public meetings heckling and spreading falsehoods about our elections, these officials substituted conspiracy theories for facts and elevated the misguided concerns of a few over their legal obligation to all. 

I have written before about the critical role that certification plays in our nation’s elections. In its simplest form, the certification process is little more than county boards of elections converting unofficial election returns into the official returns. The county’s certified results are then sent to the state, which includes them in the statewide official results.

But the importance of certification extends well beyond the ministerial process that leaves officials no discretion not to certify. When local officials meet to confirm and certify election results, they are playing a starring role in the pageantry of democracy that is at the core of how we maintain a tradition of peaceful transfer of power. The public nature of the certification process, along with the imprimatur of bipartisan boards agreeing on the results, are the most immediate ways that close elections are validated.

A candidate may refuse to concede prior to certification without consequence. But once the results are in the official record, a candidate who chooses to contest the results is often viewed as a sore loser. They are taking on not just their political opponent, but the official results as well.

Importantly, all elections must be certified. Close elections and blowouts are all treated equally in the certification process. They all are handled with the same care and result in the same official seal of approval. And once certified, they are all entitled to the presumption that they are true and accurate.

This is how the system is supposed to work. It is how it worked for generations. It is how it worked until former President Donald Trump.

One of the features of the certification process in America is that it often relies on bipartisan boards. An advantage of bipartisan — rather than nonpartisan — election boards is the legitimacy they confer on the outcome to the supporters of the losing candidate. The decision of a nonpartisan body is always subject to second guessing as to whether it was, in fact, nonpartisan or whether it was secretly controlled by one party or the other. In contrast, when a bipartisan board certifies, the fact that partisan officials are involved helps signal to the public that the results were fair.

The very nature of these boards as bipartisan, however, made them targets for Trump and his adherents in 2020. They targeted the very process that ensured the peaceful transfer of power by infusing it with hyperpartisanship and lies. Rather than celebrate democracy, Trump and his allies viewed these largely ceremonial county certification meetings as opportunities to undermine it.

At least 10 counties — including four from Pennsylvania — either refused to certify election results or purposefully certified incorrect results.

We first saw this play out in 2020 in Wayne County, Michigan, the state’s largest county and home to the very Democratic city of Detroit. Recall that in that year’s election, President Joe Biden won the state by 150,000 votes. Gary Peters, the Democratic Senate candidate, won re-election to the U.S. Senate by 90,000 votes. Neither election was within any reasonable margin to contest the outcome.

As in most states, including Arizona and Pennsylvania, in Michigan a bipartisan canvassing board is responsible for collecting the results from the towns and precincts, double checking them and certifying the results. Then, the results are sent to the state for inclusion in the statewide election results.

Rather than respect or celebrate that process, Republicans decided to attack certification in Wayne County. Even though certification is required, the GOP, acting on behalf of the Trump campaign, pressured the two Republican members of the Wayne County Board of Canvassers to refuse to vote to certify the election results.

Initially, their plan worked. The two Republican members were able to deadlock the four-person board. It was only after this became national news and pressure mounted that they reversed course, agreeing to certify the county’s results and send them to the state.

Though the GOP’s plan failed in Wayne County, Michigan in 2020, the certification crisis in the Great Lake State didn’t end there. Earlier this year, the Michigan Bureau of Elections,  determined that two ballot measures — a package of pro-voting reforms and a measure creating a state constitutional right to reproductive freedom — met the legal requirements to be placed on the ballot. Rather than follow the recommendation of the Bureau of Elections, as is customary, the board’s two current Republican members voted against adding the two measures to the ballot. 

As a result, the board deadlocked at 2-2, keeping both off the ballot. Only after the courts stepped in, when the Michigan Supreme Court ordered both ballot measures to be added to the ballot, was the issue finally resolved. 

During this year’s primaries, we saw evidence that Republicans, not just in Michigan but across the country, would try to block election results by blocking county certification. At least 10 counties — including four from Pennsylvania — either refused to certify election results or purposefully certified incorrect results. Again, the courts had to step in to protect voters by forcing counties to act appropriately.

Then came the midterm elections. When election deniers lost high profile races, we collectively hoped for a return to normalcy. We craved that the pageantry of democracy would be restored and that democracy would begin to heal, and in many places that was the case. That is the good news.

Unfortunately, in Cochise County, Arizona and Luzerne County, Pennsylvania, that was not the case. In those two places, thousands of miles apart, election denialism reared its ugly head. On Monday, Nov. 28, 2022, the two counties faced deadlines to certify by the end of the day. In both instances, Republican led efforts preventing that from happening.

Predictably, both counties were promptly sued. The results of those lawsuits were never in doubt. The law was clear. So clear that, in Pennsylvania, the county reversed itself the day after the lawsuit was filed — two days after certification was due. Even then, the results were certified over the objection of the board’s two Republican members.

In Arizona, where election denialism is as strong as anywhere in the country, Cochise County fought longer. On Monday, Nov. 28, after refusing to canvass the results — meaning, when local election officials confirm results by reviewing and finalizing the unofficial results reported on election night — the county was sued in two separate lawsuits, one brought by the Arizona secretary of state and the other by the Arizona Alliance for Retired Americans. 

On Wednesday, a Cochise County voter filed a notice of claim against the county, making clear that he will bring a class action lawsuit if necessary. By Thursday morning, Cochise County was still without legal representation, and even after the board supervisors voted 2-1 to bring on an attorney, no such attorney showed up to the hearing yesterday afternoon, leaving the two rogue supervisors on their own to defend their refusal to canvass valid election results. 

Ultimately, the Cochise County Board of Supervisors voted to certify. At 3:30pm MT, they finally voted to unanimously certify the election in compliance with the court’s order.

I wish this was the happy ending that often follows successful litigation, but it is not. Yes, the counties certified and both states will now be able to move forward to certify their elections at the state level. But in those two counties, the celebration of democracy was ruined. The necessary healing that those states and our country needs was set back. The scab caused by the trauma of the “Big Lie” was picked open and left to bleed just a little bit.

We are now left to ask, what’s next? There is no healing in sight in the Grand Canyon State. In Pennsylvania and elsewhere it is less clear. Nationally, Trump and his band of misfits continue to practice grievance politics with election denialism and the “Big Lie” at its core.

We are likely not going to see a return of the full pageant of democracy anytime soon. But at least for now, we seem to have survived the worst of it for 2022.