As Election Day approaches, so does the prospect of certain state or local officials “going rogue” and attempting to refuse to certify election results based on election conspiracies or other specious grounds. Such abuses of authority are plainly unlawful and, importantly, may expose complicit officials to criminal liability.
Although the details vary by state, state laws generally prohibit the kinds of abuses of certification authority we’ve seen since 2020. One reason for this is that state election procedures are designed to spot and correct errors well before certification. As detailed in a new report by the Brennan Center for Justice at NYU Law School:
The full process for counting votes involves a series of steps that take place over the course of weeks. Each of these steps has safeguards in place to protect the rights of voters and the integrity of our elections.
For example, the canvass, which precedes certification, is a process that accounts for every ballot cast and ensures that each valid vote is included in the official results. Based on the canvass, officials responsible for certification finalize the results, which tends to be – as a Republican member of the Michigan Board of State Canvassers put it – a “very ministerial duty.” Given the procedures in place before certification, it is unsurprising that “[s]tate law generally leaves little discretion to the person or agency designated to certify results.”
It is easy to see, then, why refusals to certify based on dissatisfaction with the result or unfounded conspiracy theories are unlawful. For example, this summer in Otero County, New Mexico, a three-member county commission unanimously voted against certifying the results of the primary election, citing distrust of voting machines. The county clerk assured the commissioners that there had been “no problems.” And the commissioners did not provide any evidence, much less a legal basis, for their actions. Instead, they relied on unfounded suspicions. “I have huge concerns with these voting machines. I just don’t in my heart think that they can’t be manipulated,” one commissioner said.
The next day, the secretary of state of New Mexico asked the state supreme court to step in, and the court swiftly ordered the commission to certify the election. The court ordered the commission to comply with its obligations under state law to “meet to approve the report of the canvass of the returns and declare the results” of the 2022 primary election. The commission then voted 2-1 to certify the results. The lone dissenter, Commissioner Couy Griffin, acknowledged that he had no basis for questioning the results of the election—he justified his “no” vote on his “gut feeling” and “intuition.” (Griffin was previously convicted for participating in the January 6 insurrection, and in early September, a New Mexico state district court judge disqualified him from holding public office for his role in the insurrection.)
Importantly, not only were the commissioners ordered by the state supreme court to follow the law and certify the results, but they also faced potential criminal liability for their abuse of official authority. The New Mexico secretary of state announced that the office was preparing a criminal referral to the New Mexico attorney general for willful violations of the state election laws by county officers and their willful failure or refusal to perform their duties. As the Otero County example illustrates, election officials who abuse their legal authority, whether by refusing to certify lawful election results or to count lawful votes or otherwise, do so at their legal peril.
Although state laws, when properly enforced, generally prohibit bad faith refusals to certify, federal laws also act as a backstop against refusals to count or certify lawful votes. For example, Section 11(a) of the Voting Rights Act provides:
No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.
Because certification is a means by which votes are formally “report[ed],” willfully refusing to certify lawfully-cast votes—as in Otero County—appears to violate this provision. And, because Section 11(a) prohibits only “willful” refusals to certify—i.e.,where an official knows his or her conduct to be unlawful—the provision does not ensnare officials acting in good faith compliance with the law. But, to be clear, officials cannot hide behind baseless conspiracy theories or unsubstantiated claims of fraud as the basis for their refusals to certify, as federal law treats willful blindness to reliable evidence the same way as actual knowledge and thus knowledge that the conduct is unlawful.
Officials who violate Section 11(a) face both civil and criminal liability, as do those who conspire with them to do so. That means officials who abuse their power and refuse to certify votes could face fines of up to $5,000 and could be imprisoned for up to five years. Thus, as other legal experts have put it, “[a]ny refusal to certify an election based on meritless innuendo would likely violate the Voting Rights Act of 1965” and could therefore result in a federal felony conviction.
Section 11(a) is just one example. There are other federal laws that may apply to abuses of certification authority. Depending on the facts, statutory provisions like Section 101(a) of the Civil Rights Act of 1964, which bars states from denying the right to vote based on an error or omission that is not “material” to the voter’s qualifications, or other federal criminal provisions may apply, as might the Due Process Clause, the First Amendment, and other constitutional provisions.
As the midterm election approaches, and with the rise of election disinformation and election deniers holding or seeking election administration positions, the United States may see more scenarios like Otero County, where election conspiracies fuel abuses of authority by election officials. Election officials who are considering abusing their power in service of election falsehoods do so at their legal peril.