This article is part of TPM Cafe, TPM’s home for opinion and news analysis.
If the stars align, Congress could soon pass a much-needed overhaul of the Electoral Count Act (ECA), the 19th-century law governing presidential electoral-vote counting, whose ambiguities helped spawn chaos on January 6th. In pushing to reform the ECA, a bipartisan group of senators is acknowledging a dangerous new reality: that any ambiguity in election law, any hint of an opening, could be exploited in this perilous era for democracy.
The same reality threatens another arcane election procedure: certification of results at the state and local levels, a previously routine process now emerging as a stage for electoral defiance. As with the ECA, our current system is vulnerable to manipulation by partisans and extremists that could dangerously undermine election results, voter trust, and civic peace.
After votes are tabulated locally, state election laws designate an individual or board to confirm the totals add up and to certify victory for the winning candidate. A new Election Reformers Network (ERN) analysis finds that in most states, political parties play a major role in selecting the people responsible for certification. That role is now creating a significant risk of subversion.
At the state level, 39 states give partisan-controlled boards or partisan officials exclusive control over certification, and every state except for Hawaii involves party-nominated or partisan-elected or -appointed figures in some manner in the process. By contrast, a parallel ERN study finds that almost all of our peer democracies limit the role of political parties to observing the process and bringing challenges in court. The finalization of results in these democracies is handled by the same (usually nonpartisan) professionals who run the election itself.
Already, we’re seeing efforts by U.S. partisans to exploit certification. In 2020, Republican party representatives in Wayne County, the largest in Michigan, refused for several hours to certify results of the presidential election, briefly throwing the contest in a key swing state into turmoil. One of their counterparts at the state level board — the same panel that last week drew charges of political bias when it rejected, on party lines, a proposed ballot measure to protect reproductive rights — threatened to do likewise. A similar skirmish arose in New Mexico earlier this year. And in Pennsylvania, three county electoral boards for months refused to certify primary results that include ballots they argued should be rejected, despite court rulings to the contrary.
Election law experts like New York University’s Rick Pildes warn of more to come for the midterm elections in November. Meanwhile, the campaign rhetoric of several “Stop the Steal” candidates for secretary of state raises the possibility they, too, may refuse to certify future results not to their liking.
It’s important to be clear about the nature of this threat. Many state laws confirm that certification is not the venue to address claims of fraud, failed equipment, or other irregularities. Instead, such challenges are usually heard in courts, where evidence can be weighed and authoritative judgment rendered. This means that bad actors are unlikely to be able to use certification to change an election outcome.
But, as with the ECA, public misunderstanding and ambiguities in the law can still be exploited to great harm. As we saw on January 6, partisan denialists and ideologues can use public showdowns over election rules to stoke anger and chaos, damaging trust in elections and potentially triggering violence — even if they don’t succeed in overturning the results.
How do we fix the problem? In the near term, we need much greater public clarity about certification to reduce the risk of flashpoints. Journalists and state officials should emphasize that there is a rightful place for challenges to elections — in court, not during certification.
Longer term, we should shift responsibility for certification to election professionals, ideally selected in nonpartisan processes. Where boards are involved, their membership should be modified to emphasize impartiality rather than party representation, for example by including retired election officials or judges. Parties can fully protect their interests through the roles accorded them in law: observing all processes and taking evidenced-backed concerns to court.
There are a few signs of progress here: Colorado earlier this year passed laws making it harder for local officials to hold up certification, and in Michigan a new effort may be emerging to depoliticize canvass boards. Reformers in New Mexico are looking at ways to avoid a repeat of this year’s standoff. Other states at risk should consider similar measures that reduce the role of partisans in the process, and that remove any ambiguity about the limited authority of those in charge of certification.
With so much work needed on our elections in so many areas, it may be tempting to hope that we can muddle through with our existing certification processes. We shouldn’t risk it. But if we don’t take steps to reduce the role of partisans in certification and ensure better understanding of the process, the next January 6 might not happen in Washington, but instead in counties and state capitals across the country.
Kevin Johnson is executive director of the Election Reformers Network.