Election integrity has been a big issue with voters this election cycle. However, what election integrity means to you might depend on your political philosophy. According to a recent Gallup poll, most self-identified Democrats trust the election process (at 84%) while most self-identified Republicans do not, with only 28% believing election results are accurate. However, Democratic voters are more concerned with voter suppression compared to their Republican counterparts.
Cue the heated debate over the certification of election results by local election boards. Election fraud has been cited as a reason to delay or not certify election results by several Republicans on local election boards. For example:
- After the 2020 presidential election, two Republicans on Michigan’s state board of canvassers initially refused to certify the results.
- In New Mexico in 2022, Republican county supervisors refused to certify the state’s primary vote, only agreeing to sign off under the threat of prosecution.
- In Arizona that same year, two Republican supervisors refused to certify the local vote totals in protest. They argued that the votes in their county, where Republicans won, were accurate, but the counts in other counties that voted Democratic were inaccurate.
This year, Republican local election board members have already (in primary contests) refused to certify election results. Others are threatening to do so in the upcoming election. One person who has done both is Julie Adams, appointed to the Fulton County Elections Board in February 2024. She refused to certify the primary election results in May and filed a lawsuit to clarify that she had the ability to refuse to certify the 2024 election until she was satisfied there was no fraud.
What Is Certification?
Certification happens when local election bodies finalize the work of election officials. Counting the votes is called "canvassing" and certification is the last step, essentially the person(s) in charge saying "We're done." That means the votes have been counted and there's been a post-election audit (a requirement in most states). This does not happen on election night.
What happens if there are discrepancies? There are several safeguards in place during canvassing. If an election superintendent has concerns about voter fraud, then they can report it to their state or local prosecutor's office. Voter fraud is a crime. Also, the vote count on election night is unofficial — the official results take weeks to tabulate and are heavily cross-checked at several steps. Finally, if there is suspected fraud or other discrepancy once the vote is certified, you can still challenge the results in court. In particularly close elections, there may also be a recount, including a hand recount, before certification.
Put simply, there are many ways to check for voter fraud or just plain error, but a local election board superintendent has never had the ability to unilaterally halt vote tabulation or toss out votes. That's begun to change, however. The Georgia State Elections Board recently gave increased leeway for local election boards to delay certification and even toss out votes. They also implemented a last-minute requirement to hand-count votes. However, it was never clear that the State Elections Board could do this, as the Georgia legislature is responsible for passing laws about the election process in the state. Julie Adams thus asked for clarification from the courts, called a declaratory judgment, to avoid running afoul of the law on election night.
What Powers Do Election Boards Have?
Georgia law sets out the duties of election officials in the state. In part, it reads that the superintendent “shall … publicly commence the computation and canvassing of the returns” and "shall tabulate the figures for the entire county or municipality and sign, announce, and attest the same.” The ordinary meaning of "shall" prevails here, Fulton County Superior Judge Robert McBurney held. That means that while the election board is responsible for reporting discrepancies and relaying concerns over fraud or anything else to state prosecutors, single-handedly investigating and ruling on election results is not at the discretion of the election board. Instead, their discretionary tasks are more administrative, like training workers, deciding polling locations, and advertising the upcoming election.
Importantly, even if the superintendent (i.e., Adams) believes there has been fraud, she is not personally able to simply ignore those votes. Instead, allegations of fraud should be settled publicly, in court, as they have been throughout America's history. This is where “the claims of fraud from one side are tested by the opposing side in ... open court" instead of being "excluded from the final count without due process being afforded those electors,” as McBurney wrote in his opinion.
Delaying or Refusing Certification Might Not Play a Role in 2024 Election
Despite widespread media coverage over attempts to increase the powers of election board officials throughout the country, courts have repeatedly held that local election officials are not legally able to delay or toss out votes based on personal concerns. Instead, this is the realm of the courts, where the evidence over results is publicly available.
For those concerned about voter fraud, it may be beneficial to review the results of the approximately 60 lawsuits filed in 2020 over election integrity (many of them overseen by Trump-appointed judges). And for those concerned that their vote may be tossed out by a local elections board, that worry may be unfounded. Despite repeated attempts, no election official has ever successfully argued that they have the legal ability to toss out votes or refuse certification over personal suspicions.
Related Resources
- How U.S. Elections Work (FindLaw's Learn About the Law)
- Contesting an Election (FindLaw's Learn About the Law)
- Guide to Voting in Federal Elections (FindLaw's Learn About the Law)
