How Republicans could subvert the 2024 election

During Tuesday night’s vice presidential debate, Senator JD Vance (R-OH) refused to acknowledge that former President Donald Trump lost the 2020 election. “Did [Trump] lose the 2020 election?” Governor Tim Walz (D-MN) asked Vance. “Tim, I’m focused on the future,” Vance responded. 

Vance then echoed Trump’s false claims about election fraud occurring during the 2020 election, despite there being no evidence of any significant fraud. “Obviously, Donald Trump and I think that there were problems in 2020,” Vance said. 

When asked by CBS moderator Norah O’Donnell, Vance refused to say if he would accept the results of the 2024 election if it was certified by all 50 states. Vance deflected, stating, “[W]e’re focused on the future.” 

A more likely scenario for the 2024 election, however, is that the results of closely contested states are not officially certified by Republican election officials in an effort to validate spurious claims of fraud. A new report published this week by the Brookings Institution revealed that election officials across the country have histories of election denialism and have refused to certify elections.

A report by Citizens for Responsibility and Ethics in Washington (CREW) found “[a]t least 35 current county election officials” that have voted against certifying an election in the past. Public Wise, Informing Democracy, and the Center for Media and Democracy identified dozens of additional election officials that have “promot[ed] election denialism or amplif[ied] unsubstantiated claims of voter fraud or irregularities.” The amount of election deniers acting as election officials “presents a challenge for monitoring certification,” specifically in swing states and remote areas. 

This has been a growing problem since Trump began spreading lies about election fraud during the 2020 election. The Brookings Institution found that in 2020, “at least 17 county election officials across six swing states attempted to prevent certification of county vote totals.” In 2022, it grew to “at least 22 county election officials” who voted to delay certification in swing states. This year, there have been “at least eight county officials” that have already voted against certifying election results for primary or special elections.

This is part of a larger landscape of election deniers in positions of power across the country. According to a data tracker created by States United Action, there are 26 election deniers that hold statewide office and 172 election deniers in Congress.

It is not clear what will happen if state officials refuse to certify the 2024 presidential election. But the point of blocking certification is to inject chaos and uncertainty into the election process.

The basics of certification

Until the last few years, election certification was a process that received very little attention from activists or media. It is a formality that occurs days or weeks after election day, depending on state or local procedures — by which point the winners of nearly every election have already been declared, defeated candidates have conceded, and everyone has moved on.

According to the U.S. Election Assistance Commission, election certification follows four general steps, although there are some differences in how each state handles the process.

First, when polls close on election day, and all the ballots are counted, election officials release a preliminary count. While these results are technically unofficial, they are the numbers that the media uses to call races on election night.

Then, election officials will canvass the results. According to the EAC, “[t]he canvass process aggregates and confirms every valid ballot cast and counted, including mail, uniformed and overseas citizen, early voting, Election Day, and provisional ballots.” 

Most states also require an audit of the technology that was used to record and count ballots. 

Once these steps are complete, election officials certify the results. Deadlines for certification vary for state and local races, but usually fall between mid-November and mid-December. The deadline for certifying presidential election results is six days before the meeting of the Electoral College. In 2024, states will need to certify their presidential election results by December 11.

At the county level, it is typically a board of three to five officials who certify results, although in some places just one person is responsible for certification. Once counties have certified their results, they send their results for state and federal elections to state authorities who aggregate and certify statewide results.

The certification process is separate from the process by which a state might investigate any irregularities in an election, like voter fraud. Instead, other state officials such as a secretary of state or governor are vested with the authority and resources to investigate any issues and address them through a recount or audit. The certification process simply affirms that election officials have double checked that they counted correctly and the technology they used was working properly.

Most importantly, election certification is not a discretionary duty. Instead, it is a ministerial responsibility, meaning it is a task that must be completed by the officials elected or appointed to do so. All states have some kind of mechanism at their disposal to ensure that the certification duty is fulfilled. Some states have statutes specifically mandating that election officials complete certification. Others have more general laws to ensure that elected officials fulfill the non-discretionary requirements of their office. In 2022, these mechanisms ensured that election results were certified even in counties where election officials resisted certification.

Who are the election deniers refusing to certify election results?

Five of the election officials identified in the CREW report for refusing to certify past elections are from Nevada. Biden won Nevada by just over 33,000 votes in 2020 and the race could be even closer this year. Three of those officials are from Washoe County, which is the state’s second most populous. The election certification process has already been disrupted in Washoe County in 2020, 2022, and 2024.

In 2020, Washoe County Commissioner Jeanne Herman (R) was the only commissioner to vote against certifying the election results. In the 2022 primary and general elections, she was again alone in voting against certification. But in 2024, Herman has found allies in her crusade to prevent Washoe County from certifying its election results. In this year’s primary election, she was joined by fellow Republican Commissioner Mike Clark, although the two were not enough to hold up the certification by the five-member county commission. 

Herman successfully blocked certification of a recount in July for two local races when she and Clark were joined by the commission’s third Republican member, Clara Andriola. But a week later, the results were certified when Clark and Andriola changed their votes. The AP reported that Clark changed his vote after learning that certification was not a discretionary duty, saying he was “under extreme duress under the threat of both my position, and prosecution.”

Herman and Clark have received financial support from Robert Beadles, a wealthy Washoe County conservative activist who has spread lies about the 2020 election, including that Trump’s loss was caused by a global Jewish conspiracy, using the Protocols of the Elders of Zion as evidence. He has also been a driving force behind efforts to unseat Andriola, who is more moderate than Herman and Clark.

Nevada is not the only swing state with far-right election officials in position to upend the certification of the general election results.

In Michigan, for example, the ACLU sued Kalamazoo Board of County Canvassers member Robert Froman last month for preemptively promising not to certify the 2024 election results. Froman had told a local newspaper that he thought the 2020 election had “most definitely” been stolen and suggested he would not vote to certify the election in 2024. (Republicans in the Michigan Senate found that there was no widespread fraud in the 2020 election.) The case was dropped on September 10, after Froman acknowledged his legal obligation to certify the results.

How 2024 is different

At the federal level, certification of the 2024 presidential election — where Congress accepts the results of the Electoral College — will not play out the same way it did in January 2021. This time, it will be Vice President Kamala Harris (D) and not Vice President Mike Pence (R) presiding over the election certification in Congress. 

Further, in December 2022, Congress passed bipartisan legislation that amended a 1887 law to make it more difficult to object to the results of a presidential election. The new legislation clarifies that the role of the vice president in certifying the election is “merely ceremonial,” and that they do not have the authority to decide the results of the election. The law now states that the vice president “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes” when certifying the election.

The legislation also makes it harder to force a vote for a particular state, with “one-fifth of each chamber” needing to object to certifying the electors instead of just one member of each the House and the Senate. Governors will now have to sign off on one slate of electors to be sent to Congress, countering Trump’s 2020 attempt to send fake slates of electors to Congress.