Two election observers watch election workers at the Milwaukee Election Commission’s warehouse south of downtown during the August primary. The post-election period in swing states, including Wisconsin, will be closely watched as local officials certify results. (Matt Vasilogambros/Stateline)
Recent sweeping changes to how the nation handles election results should prevent a repeat of the near-constitutional crisis four years ago.
For months, former President Donald Trump has been laying the groundwork to challenge the results, claiming that noncitizens are voting in droves and swing-state election officials are cheating. Republicans could use those false allegations to refuse to certify election results or submit alternate slates of electors to the Electoral College.
But Trump’s actions four years ago led to state and federal action: Swing state officials have reinforced that the certification process is mandatory, and Congress has passed a law clarifying certification rules and procedures to prevent a repeat of Jan. 6, 2021.
Although the Trump team likely has plans to challenge the election results if he loses, those plans will fail, said David Becker, founder and executive director of the Center for Election Innovation & Research, a nonpartisan organization that advises local election officials nationwide.
“The guardrails are in place,” Becker told reporters in a conference call last week. “The counties will certify, the states will certify, the governors will ascertain, the electors will meet, and Congress will count the electoral votes as they were cast.”
Much of the anxiety from election officials and experts in the post-election period involves the certification of election results.
After voters cast their ballots and local election officials count them, the results are not yet official.
Local bipartisan panels — known as boards of canvassers — meet to ensure that the number of ballots cast and the number counted match. If they do, the board certifies the results. If there are discrepancies in the count, local election officials can be called in to clarify mismatched numbers.
The administrative process has long been accepted as mandatory and not subject to the whims of the local board members. If races are tight, automatic recounts are triggered in some states. Candidates can also go through the courts to contest results. But the certification process is not designed to be the venue to challenge results.
There is no legitimate way for a county or a state to refuse to certify results when they exist. But that doesn’t mean the people won’t try.
– Wendy Weiser, Brennan Center for Justice
However, Trump and his allies have argued that the process is discretionary and that local board members have the right to refuse to certify an election in which they suspect widespread voter fraud or bureaucratic errors.
“They have the ability to ask questions about the results, to dig deeper, to ask for some feedback because they’re putting their name on the results as having certified them,” Michigan state Rep. Luke Meerman, a Republican, said in an interview.
Over the past four years, local canvassing board members in Arizona, Georgia, Michigan, Nevada, Pennsylvania and other states have refused to certify certain local elections, but they were swiftly met with successful legal challenges and, in some cases, criminal charges.
“We know we’re going to see rogue local election officials who are poised to refuse to certify results, probably in multiple places at once,” said Wendy Weiser, vice president for democracy at the nonpartisan Brennan Center for Justice.
“There is no legitimate way for a county or a state to refuse to certify results when they exist,” Weiser said. “But that doesn’t mean the people won’t try.”
State protections
Trump is now preparing his voters and local officials who support him to reject the outcome if he loses.
In the past month, the former president has claimed that Pennsylvania is cheating “at large scale levels rarely seen before.” Trump-aligned groups are also targeting local officials in Pennsylvania and Wisconsin with print ads in industry journals saying the officials don’t have to certify results, ProPublica found.
“We really see the kind of dedicated attack against the system, and against voters themselves, as a clear preface for further political partisan games after everybody has voted,” said Sylvia Albert, democracy and representation policy counsel for the voting rights group Common Cause, on a call with reporters last week.
Refusing to certify results would be one of the main pathways to overturn the presidential election. But courts and top state officials have confirmed that certification is mandatory.
In case after case in recent years in which a local board member balked or made allegations of fraud, either state officials or a court has stepped in.
In Michigan, the board of canvassers in Delta County initially refused to certify election results in a local race in May, after the two Republican canvassers objected. One said, without evidence, that she suspected there was wrongdoing in how the election was run.
The Michigan Department of State, led by Democrat Jocelyn Benson, then sent a letter to the county officials reminding them that their duty to certify is mandatory, after voters approved a constitutional amendment specifying that requirement in 2022. If they didn’t certify, the letter warned, the county would be liable for “substantial” costs associated with state officials traveling to the county to complete the process. The local officials changed course and certified the election.
A Fulton County, Georgia, judge last month ruled that local election boards are legally bound to certify election results, thwarting a GOP board member’s refusal to certify this year’s primary. The board member, a Republican, has appealed the ruling.
Also last month, the Georgia Supreme Court for now left in place a lower court decision that blocked the State Election Board’s last-minute efforts to change rules around the voting process. In an action that drew national attention, one of those rule changes would have given local election boards more discretion in the certification process, potentially leading to refusals to certify races and creating chaos.
And in Cochise County, Arizona, a Republican supervisor last month pleaded guilty to charges stemming from her refusal to certify the 2022 midterm election.
The swift reaction from state officials should give voters confidence, said Catie Kelley, the senior director of policy and strategic partnerships at the Campaign Legal Center, a bipartisan nonprofit.
“They are being very proactive and making sure that the local folks know what the law is,” Kelley said in an interview with Stateline, “and making it clear what the expectations are for the folks who are certifying at the county level.”
Congressional protections
Not wanting to rely on the good faith of an official, such as former Vice President Mike Pence’s unwillingness to go along with Trump’s 2020 election plot, a bipartisan coalition in Congress pushed through the Electoral Count Reform Act in 2022. The law changed a statute that had been on the books for 135 years.
The law now clarifies that governors — not state legislatures — are the leaders who are tasked with certifying their state’s electors for the Electoral College. Immediately, that change lowers risk of trouble this year, since the governors of the seven critical swing states are either Democrats or Republicans who have rejected fake elector schemes.
The law also sets a new timetable for certifying election results. In this election, states must finalize that work by Dec. 11. The Electoral College will meet on Dec. 17, and Congress will finalize the election on Jan. 6. Those tightened deadlines add pressure on localities to certify results.
Finally, the law raises the threshold for objecting to the certification from one U.S. House member and one senator to objections from 20% of the members in each chamber in order to trigger a debate. And the law clarifies that the vice president’s role in the process is ceremonial.
The election could still be overturned, however, if majorities in both chambers of Congress and the state legislatures in swing states refuse to certify the election, triggering a “contingent election,” in which each state delegation gets a single vote for president. Although the new Congress gets sworn in on Jan. 3, Republicans would likely have the edge in the state count.
In an online panel last week hosted by Democratic election lawyer Marc Elias, U.S. Rep. Jamie Raskin, a Maryland Democrat and member of the select committee on the Jan. 6 attack, said he has confidence the new federal law will prevent efforts to overturn the election.
“We will be able to defend against any form of mischief that arises,” Raskin said.
Raskin also said that Congress was better prepared for potential violence than it was four years ago. Security has been a key focus of state and local election officials since the last presidential election, and they’ve invested in new protections for their offices.
In swing states with Republican-led legislatures, such as North Carolina, officials are confident local elections will be certified.
“Even if they were to do some shenanigan at the legislature, the governor still has the right to send them to D.C.,” Democratic Secretary of State Elaine Marshall told Stateline. “I’m sure there’s some devious mind that might think of something, but I think we’ve got a reasonably tight process here in the state.”
Legal obstacles
But even with these protections, the Trump campaign and its lawyers have bombarded the courts with lawsuits challenging the validity of election procedures. Further lawsuits after the election could challenge the results or the constitutionality of the Electoral Count Reform Act.
Whether courts — including the U.S. Supreme Court — would agree with the Trump team is unclear.
Last week, the high court sided with Republican Virginia Gov. Glenn Youngkin in a dispute over his executive order that purged 1,600 alleged noncitizens from the voter rolls. Immigrant and voting rights groups, along with the U.S. Justice Department, opposed Youngkin, arguing eligible voters could lose their voting rights close to the election.
“What we’re seeing now is not so much litigation designed to legitimately clarify the rules,” said Becker, of the Center for Election Innovation & Research. “But we’re seeing litigation designed to set the stage for claims an election was stolen later. That would have the effect of increasing the amount of distrust in the system.”
Republican lawyers might lean on an argument in post-election lawsuits — one they put forward in 2020 — that could embolden state legislatures to assign slates of electors that differ from the popular vote of their state. However, the core of that legal theory was rejected by the U.S. Supreme Court in the 2023 court case Moore v. Harper.
The “independent state legislature” theory the Supreme Court eviscerated holds that state legislatures can, without sway from courts or the governor, make election law. By that doctrine, they could select an alternative slate of electors for the Electoral College.
GOP lawyers are still using it in cases, including a recent one involving provisional ballots in Pennsylvania. Even though the Supreme Court rejected the theory, it could still play a role in challenging the Electoral College Reform Act.
In the coming weeks, as election certification makes its way through local boards of canvassers, Congress and the courts, it’s important that voters remain mindful of the information they take in during the likely long process, said Rachael Dean Wilson, managing director of Alliance for Securing Democracy, a nonpartisan initiative at the German Marshall Fund think tank that aims to bolster democratic institutions.
Disinformation will be widespread, meant to divide people in a stressful time, she said.
“The post-election period is going to be chaotic,” she said. “While you’re packing your patience to know the results of the election, you have to be patient with our system to work itself out.”
Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org. Follow Stateline on Facebook and X.
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