How State and Local Election Certification Works 

UPDATE: In Adams v. Fulton County Board of Elections and Registration, a local official is asking a Georgia court to overhaul centuries-old law to allow local officials to refuse to certify election results. On July 29, 2024, the Brennan Center, along with cocounsel from Protect Democracy, the Lawyers’ Committee for Civil Rights Under Law, and Krevolin & Horst, LLC, filed an amicus brief behalf of civil rights organizations supporting a motion to dismiss.

As the 2024 election approaches, voters may start to hear more and more about a particular post-election process: election certification, the method by which state and local election officials sign off on the accuracy and completion of election results. These processes are primarily governed by state statutes, but recent efforts have added constitutional provisions. 

Certification typically doesn’t warrant news coverage, and for good reason. Aside from Florida’s debacle in the 2000 election contest between George W. Bush and Al Gore (which predates many younger voters), the process has usually served as an important but drama-free formality carried out after the excitement of an election winds down.

That all changed in 2022. Throughout the midterm election cycle, a surge of rogue local officials across the country refused (or threatened to refuse) to certify valid election results based on claims rooted in election denialism — the false idea that the 2020 election was stolen and that widespread fraud continues to pervade our election system.

As my co-author and I explain in a new article in the Stanford Law & Policy Review, these attacks highlighted a gap in legal scholarship. Historically, little academic attention has been paid to the mechanics of state certification processes, leaving many in the legal community bewildered by the recent string of attacks. Against this backdrop, we took a closer look at state certification frameworks to demonstrate why, and how, they can combat the ongoing threats against them.

First, how does certification work? While state certification frameworks differ in their specifics, they all tend to carry out the process in similar ways.

Election officials and poll workers begin laying the groundwork as soon as the polls close on Election Day, when they begin the process of tabulating the results. This process involves combining all electronically-read votes — either readouts of ballots that have been scanned, or votes cast directly into an electronic voting machine — into a subtotal. This subtotal will include all in-person and mail ballots cast before, on, and after Election Day (when counting eligible mail ballots arriving after Election Day).

Once the electronically tabulated results are complete, certification can begin. The first step, referred to as the “canvass,” takes place some set amount of time after Election Day, usually a week or two. During the canvass, local election officials verify the electronically tabulated results and incorporate ballots that were not, or could not be, included in the electronic count. For example, officials will determine whether to count provisional ballots (ballots cast when election officials need more time to determine a voter’s eligibility), resolve ballot marking errors, and adjudicate voter intent if unclear. As the canvass unfolds, it will often overlap with other post-election processes like mandatory audits and recounts.

When local officials finish the canvass, they must then “certify,” or confirm the completeness and accuracy of the results within their jurisdiction via signature by a date set by statute. For local races, the process ends there. For statewide races or races across multiple counties, the process continues. Local officials deliver the certified results from their jurisdiction to the officials responsible for the statewide canvass. And at the state level, a designated group of officials will then complete their own canvass to aggregate the certified results from each local jurisdiction and formally certify the winner of each race, again by a specific date set by statute.

Throughout this multi-step process, state certification frameworks provide officials with no discretion to refuse to certify the results. For example, local and state level certification must happen within a predetermined time frame, leaving officials with no room for delay. When proceeding with canvassing and certification, officials are generally limited to examining the face of the ballots and returns (such as resolving errors in how a voter marked a ballot).

In other words, they have a mandatory duty to certify the correct results without any investigation into the election itself. All questions about any suspected fraud or misconduct are typically left to state-designated processes or tribunals that hear election disputes. For this reason, courts refer to certification as a “ministerial” duty, defined as an obligation “involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode an[d] occasion for its performance with such certainty that nothing remains for judgment or discretion.”

In the event that election officials refuse to certify or delay certifying election results, every state certification system includes an enforcement mechanism that generally falls into one of two categories: statutory remedies specific to election certification, or general mandamus remedies that apply broadly to government officials with ministerial duties. Additionally, states may also choose to impose criminal penalties on officials who intentionally refuse to certify results.

Some states with specific statutory remedies allow voters or candidates to sue an official who refuses to certify valid election results. In New Mexico, for example, state law allows any voter to petition a state trial court to order county officials to complete certification. Other states, such as Michigan, allow state election officials to take over certification at the local level if a local official refuses to certify.

In states that rely on general mandamus remedies, plaintiffs generally have to prove two elements: that the duty they seek to force a government official to perform is ministerial and not discretionary and that no other adequate remedy exists. For centuries, courts have found candidates (and in many states, voters) who bring suit to enforce certification to meet these requirements.

Fortunately, these enforcement mechanisms worked as intended in 2022. But attacks on certification still cause harm. By invoking false claims of large-scale fraud, each refusal to certify threatens to validate the broader election denier movement while sowing disorder in state election administration processes. Few officials who refused to certify have faced consequences for their actions. And election deniers show no sign of slowing down ahead of this year’s election cycle. As recently as November 2023, the Colorado Republican Party circulated a letter advising counties to not certify that month’s election results based on unsupported allegations of a “rigged system.”

For this reason, states may consider bolstering their guardrails against certification attacks in 2024 and beyond. Michigan’s experience offers a potential path forward. In 2020, the state saw the first election denier-driven certification attack when two local officials in Wayne County (home to Detroit) invoked false claims of voter fraud to refuse to certify the presidential election. In response, Michigan voters amended their state constitution to expressly clarify that state and local officials have a “ministerial, clerical, [and] nondiscretionary duty . . . to certify election results.” To be sure, centuries of well-settled case law (which our article reviews) has already established that certification is a nondiscretionary duty in Michigan and across the country. But state advocates may nonetheless consider following Michigan’s example to unambiguously foreclose and ward off future interference.

Similarly, states that rely solely on mandamus remedies may choose to streamline their enforcement mechanisms by adding a statutory remedy specific to the election certification context. Or, if they do not offer one already, states may opt to create a specific cause of action that a state official, candidate, or voter can bring in court against an official who refuses to certify the election results.

Attacks on certification, like many election denier threats, have never been deployed on such a large and coordinated scale. But by understanding the process, we can feel prepared to counter efforts to subvert our elections this election cycle.

Lauren Miller Karalunas is a counsel in the Democracy Program at the Brennan Center for Justice.

Suggested Citation: Lauren Miller, How State and Local Election Certification Works, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 4, 2024), https://statecourtreport.org/our-work/analysis-opinion/how-state-and-local-election-certification-works.