Experts: Pro-Trump officials could face "severe" punishments if they refuse to certify election

Pro-Trump local election officials may try to slow down the certification of election results in November based on unsubstantiated allegations of widespread voter fraud – but legal experts say those efforts alone won’t secure the White House for the former president.

Instead, legal experts say they’re more concerned about the role of state legislatures and the Trump-friendly Supreme Court coming to Trump's aid as he sows the kind of discord and doubt in the nation’s electoral processes that preceded the violence of the riot in the U.S. Capitol on Jan. 6, 2021.

“I think there's every indication that Trump and perhaps other candidates will try to disrupt or overturn results if they lose,” said Ben Berwick, a former DOJ trial attorney who is now counsel leading advocacy group Protect Democracy’s election law and litigation team.

Berwick said four years after Trump and his allies failed to overturn the results of the 2020 election based on unsubstantiated allegations, the rule of law still weighs against such legal arguments. Protect Democracy released a March report that stressed that courts and lawmakers have created a certification process that will hold up to manipulation.

“Bottom line is, there is really nothing that local election officials and state election officials can do legitimately or legally to overturn election results,” he said. “That doesn't mean it won't be tried.”

In a report released this week, watchdog group Citizens for Responsibility and Ethics in Washington found 35 rogue election officials in eight states have refused to certify election results since 2020.

"So far, states have shut down these dangerous efforts to sabotage the certification process—including in Arizona and New Mexico where state authorities secured emergency court orders, called writs of mandamus, compelling county officials to follow the law," reads the report. "But the threat of disruption looms large in this year’s election."

Harvard Law School professor Lawrence Lessig, a 2016 Democratic presidential candidate and the co-author of the book “How to Steal a Presidential Election,” said he's more troubled by potential scenarios where Trump and allies could exploit gaps in existing election law, put pressure on state legislatures or governors and get their case to the Supreme Court.

All those scenarios, Lessig said, require more than actions by local election officials alone.

“I think all of these strategies require something more than just as county officials or election boards screwing around with the results,” he said. “We don't know what's actually being planned, beyond what we've seen on the surface so far.”

In Pennsylvania, Montgomery County Commissioner Neil Makhija said legal safeguards ultimately protected the results of the 2020 election – but he said he’s concerned about Trump loyalists in the GOP, as well as the conservative super majority on the Supreme Court.

“2020 taught us that from the very top, the former president is willing to go through extraordinary lengths to call into question the entire process if he loses,” said Makhija, who has taught election law as a professor at the University of Pennsylvania Law School. “And thankfully, there were a number of safeguards that protected us from a situation where the election was successfully overturned.”

Makhija said his county is the third largest in the state, with 865,000 people. 

“It's one of the most critical and will be very closely watched, and is closely watched, and so what I'm making sure is that everyone who wants to cast a ballot can and that their vote will be counted,” he said.

Makhija said local election officials are tasked with certifying election results as a ministerial duty under statute. 

“It's our job to certify the election once it's done,” he said. “In terms of people wanting to challenge the election, there needs to be actually specific charges and proof which there never was in 2020.”

Certification doesn't happen until local election officials have repeatedly verified the results during the canvas and audit process — which includes everything from cross-checking ballots and tallies against voter lists to verifying signatures on mail-in ballots. States can address suspected errors and fraud with mechanisms from recounts, to audits, to evidentiary hearings before state election boards.

State laws make it clear that election officials have no discretion to refuse to certify election results, according to the CREW and Protect Democracy reports.

"It is not an opportunity for county officials to politically grandstand, lodge protest votes against election practices they dislike or investigate suspected voter fraud," reads the CREW report.

Makhija said voter fraud is rare and doesn’t tip elections, with officials rooting out fraud beforehand or prosecuting afterward. 

But, he warned: “But the bigger threat really is in what could happen if individuals calling to question the election without any specific allegations essentially attempt to find the right forum in court to uphold their attempt to overthrow the results,” he said.

Berwick said that reports of county election officials either delaying certification, or certain board members issuing minority votes to refuse to certify votes, have swirled since 2020, increasing in 2022 and continuing in 2024 primaries.

“They often have done it based on vague assertions of irregularities or fraud or error, often based in conspiracy theories about voting machines or about illegal voting,” Berwick said. “It seems like the most recent one is the idea that lots of undocumented immigrants are voting. None of this is true, of course.”

Berwick said Trump and allies’ narratives about undocumented voters on the voter rolls will set the ground for their plan to fight the election results.

“We're likely to see mass challenges to voter eligibility,” he said. “We're likely to see more threats to election officials. We're likely to see post-election litigation based on some of these conspiracy theories. We're likely to see officials, some county, refusing to certify results.”

HOW STATES ADDRESS ROGUE ELECTION OFFICIALS

Berwick pointed to the presence of Democratic secretaries of state in battlegrounds including Arizona, Nevada, North Carolina, Michigan and Wisconsin.

“Fortunately, we're in the position where state officials who oversee elections in many of the critical states in the country are pro-democracy and have demonstrated they will step in and you will use the legal tools at their disposal to force certification if that becomes necessary,” Berwick said. 

States with Republican secretaries of state include Pennsylvania, Georgia, Ohio, Virginia, Florida and Texas.

Makhija said that in Pennsylvania and elsewhere, district attorneys and the state’s attorney general enforce an election code that prohibits interfering with free and fair elections. Those provisions have fines up to $15,000 or jail time up to seven years. 

“So if there are individuals who are willing to commit that fraud under the guise of what they claim is combating fraud for which they have no specific allegations or proof, that would be one of the ways that we could enforce the law and prevent interference with the free and fair elections,” he said.

In Arizona, a judge in May tossed a lawsuit lodged by Republicans who wanted the court to throw out the secretary of state's election — "including one that forces supervisors to certify their election results without delay or changes," reported Votebeat.

In Georgia, the state election board last week approved a new rule requiring county election officials to conduct an undefined “reasonable inquiry” before they certify results — a move the Atlanta Journal Constitution reports could give partisan officials more discretion to reject the outcome.

Republican Secretary of State Brad Raffensperger defended his state's election integrity laws and blasted "unelected bureaucrats" on the board for advancing a proposal to require hand counting of ballots at polling locations.  

Also in Georgia, courts are weighing a lawsuit to make certification of votes discretionary as the state election board adopted a rule to do so. 

Berwick said he believes that Georgia lawsuit will fall apart – but said the effort alone is troubling.

“That's not consistent with Georgia law,” Berwick said. “So those rules appear to be illegal, and I think if challenged would be very likely to be overturned in court. But it’s very clear. They're not hiding the ball here. It's a very clear signal of what they are trying to do, which is to give officials, county officials, in particular, the ability to basically block certification and overturn the will of the voters if they don't like the results.”

Berwick said delayed certification efforts have yet to prove successful.

“In all cases, they are ultimately forced to certify, and in some cases, they can face pretty severe civil or even criminal consequences for refusing to certify,” Berwick said.

But Berwick said that delay can create havoc – as seen in the Jan. 6 riot at the U.S. Capitol.

“They can create delay, which in the very sort of tight timeline of the post-election process, can cause real problems,” Berwick said. “And it can be a real locus for conspiracy theories, further undermining confidence of voters and election results.”

The 2022 reform law set a federal deadline of December 11 for states to certify election results. 

Berwick and others said that prosecutors across the country are showing they're serious about holding election officials who violated the law accountable.

In Colorado, a former election clerk was found guilty this week of tampering with voting machines in 2020. 

In Arizona, the attorney general indicted the election board members in Cochise County, Arizona who refused to certify after the 2022 election – that prosecution is ongoing.

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Loyola Law School professor Justin Levitt said too many news stories are focusing on "scare hypotheticals that are never going to happen."

"I don't think that there are election officials who are actually running the elections in either areas inclined to vote for Democrats, or in purple-y areas who have any desire to do anything other than administer the election as it's supposed to be administered, and count the votes as they're supposed to be counted," he said. "There have been people who have wanted those jobs, but they haven't gotten them."

Levitt said he thinks any spectacle of delayed certification will last for a "couple of days or a week" and come from heavily Republican counties.

"The certification process is widely misunderstood," he said. "I add them up, and here are the results. That's it. It's a process of affirming, yes. When I get these results, this is how they add up. That's it."

He said he expects the vast majority of counties will follow processes for checking voting machines, reconciling precinct counts, challenging individual voters and adjudicating those challenges — with a legal process to ensure those results hold up in court. 

Federal voting rights law makes it a felony to refuse to accurately report election results, while state and federal law criminalizes interference with the election process. And courts, he said, are ready to issue injunctions if needed to protect the true results. 

"When it comes to the public feeling confident that election officials will produce the results that the public themselves occasioned, that election officials will actually report what the people have decided, here's an awful lot of history showing that that's not only what's happened every election that we've had, but will continue to happen," he said.

He added: "January 6 was a travesty for a lot of reasons, but not because it had the potential to actually magic away the election results. That was the one thing it never had the capacity to achieve."

OTHER LEGAL CONCERNS

Lessig outlined several scenarios that could provide favorable legal arguments for Trump.

The 2022 electoral count reform law requires the governor of a state to certify the winner six days before the electors are to vote.

Lessig said hypothetically, a governor could certify that Trump is the winner “only because those other counties have not sent in their votes."

"That creates a real problem, because there's no mechanism on the Electoral Count Reform Act to recognize a recount,” he said.

Lessig said if that happens and Democratic presidential nominee Kamala Harris takes it to court, the legal battle could stretch until after the day electors are supposed to vote. “It could be that even if the Harris team should win, they can’t win,” Lessig said. 

“So there'll be a lot of pressure to get them to cast their vote, but there'll be a lot of people who say: ‘Well, you know, we prosecuted all these Trump electors for being so-called fake electors,’” Lessig said. “Why should the Harris electors be allowed to gather and vote when they're not yet certified as the electors?”

Lessig said Congress should pass a law addressing the so-called fake electoral issue, and arguments raised by Trump’s lawyers concerning the 1960 election in Hawaii.

Hawaii declared Nixon the winner originally and certified him. Kennedy asked for a recount, which couldn’t be completed until after electors were supposed to meet. 

“So the Kennedy electors were the first fake electors,” Lessig said. “They met on electors day with the Nixon electors. They signed a certificate that said, we are the duly elected electors in the state of Hawaii, even though they weren’t.”

The recount ended up going for Kennedy, the governor certified the state for Kennedy, and Nixon as president said he’d count the votes for Kennedy. 

Lessig said he believes Trump’s lawyers have a point that those electors shouldn’t have cast a ballot given the ongoing litigation about election results. 

He said instead, Congress should allow both set of electors to vote contingently so “you have time to work through the recount or the litigation about the election without rushing it.”

But Lessig said he’s not optimistic that Congress will address the problem before the election. 

Lessig outlined another scenario, where a state legislature could decide to pick electors themselves on Election Day.

“The state legislature can meet on Election Day and say we picked a Trump slate of electors,” Lessig said. 

“But you can easily imagine the Republican machine saying: ‘Well, we have all sorts of reasons to be suspicious about the election. There's all sorts of fake people who are going to try to vote, or a lot of immigrants, whatever,’" Lessig said. "They can make all sorts of stuff up and say, because we have no confidence in the actual vote, we're going to make sure that our view of the public's will is reflected. And so we're going to need and cast our need and pick our electors on our own.”

Lessig said to do so, lawmakers might have to pass a law and get the governor to sign on – which could prove unlikely in a swing state with a Democratic governor like Wisconsin.

“But there's a view of the law that says it's the legislature and not the governor, who gets to say who the electors are,” Lessig said. “So you can imagine the legislature asserting that it has the right, on its own, independent of the government, to pick the electors.”

Lessig said beyond Trump’s unsubstantiated allegations of massive voter fraud in 2020, his lawyers raised a handful of plausible legal arguments about the electoral process in Wisconsin.

Wisconsin’s law about absentee ballots is particularly strict, according to Lessig. 

“If you don't follow the rules on the absentee ballot precisely, the ballots must be thrown out,” Lessig said. “That's what the law expressly says. And it's completely clear that in Wisconsin, because of the pandemic, there was lots of fudging on the rules to try to make sure people would have access to ballots.”

Lessig said that “fudging” made sense – but he said he’s concerned the Supreme Court could have taken up Trump’s case and said “All of these absentee ballots that you counted need to be thrown out.”

“And if you threw those ballots out, Trump easily could have won Wisconsin,” Lessig said.