Votebeat

Would a contentious vote for House speaker affect election certification on Jan. 6?

2025-01-03T17:23:47+00:00

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Newly elected members of the U.S. House of Representatives will convene Friday and vote on whether House Speaker Mike Johnson (R.-La.) will retain his leadership role. With Republicans holding the House by a narrow margin, as few as two GOP defections could prompt the kind of infighting that resulted in Johnson’s turbulent election in October 2023 and force multiple rounds of voting. That’s prompting concern that congressional certification of the presidential election results, slated for Jan. 6, could be disrupted.

Congress has never attempted to certify a presidential election without a House speaker in place, so the prospect of a longer leadership fight worries some people. In a phone interview with Votebeat, Justin Levitt, a constitutional law expert and professor at Loyola Law School, discussed the implications of divisions in the House and the likely paths forward. Levitt worked on the Electoral Count Reform Act and related issues while serving in the White House during the Biden administration. Here’s what he told us:

If the House elects Johnson or someone else as speaker on Friday, things should proceed normally. Does this seem like the most likely scenario right now?

Yes. I think there will be some drama — because, of course. But I think at the end of the day, he gets elected. And if for some reason he doesn’t, they will coalesce behind an alternate very quickly. It could be a very long couple of days, but I think it’s very likely to be resolved by the 6th.

What is the speaker’s role during the counting of electoral votes?

Certification isn’t a House procedure. The Constitution says, “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” It’s an infamously passive passage. It’s one of the very few places constitutionally where Congress doesn’t act as they normally act. They all sit together, and the only constitutional officer is the president of the Senate. [Editor’s note: The current president of the U.S. Senate is Vice President Kamala Harris.]

Statutorily — in both the old and new Electoral Count Acts — there are two roles for the speaker, but neither are very significant. Thing one: The speaker appoints tellers — a role about as close to the Vanna White of the Jan. 6 process as you can get. It’s a purely symbolic role which is responsible for calling out the tally to the president of the Senate. Thing two: If there is an objection that meets the threshold — which is now 20% because of ECA reform — the speaker guides the House through resolution of the objections. But there aren’t going to be objections this time.

What are the ramifications of a dramatic speaker election, beyond presidential certification?

The first official act of the speaker is to swear everyone else in. But nothing in the Constitution says the speaker has to administer the oath. In the unlikely event that there is a protracted problem, someone will swear in the members who have been issued certificates so that they can sit for the session on Jan. 6. And while there’s some weirdness here because we’ve never been in this situation before, the Constitution also doesn’t require a speaker to be in place by the 6th.

Normally, the House doesn’t do legislative business until the speaker is sworn in. But temporary speakers can be appointed if there is something important to do. The clerk of the House will assemble the roster of House members based on election certificates. The clerk sets this up before anyone is sworn in, and unless there is a real dispute about an ongoing election — and there isn’t — everyone is likely to be fine with this.

Are the concerns about certification reasonable, or blowing things out of proportion?

I don’t think there’s a significant risk that a speakership battle will meaningfully impact the Jan. 6 tally. So in that sense, I don’t think it’s worth much anxiety. Just because something is unprecedented doesn’t automatically make it a disaster. The prospect of real constitutional crisis on the 6th this year belongs to the genre of doom-scrolling fantasy. Or, if you prefer, electoral process porn.

But I absolutely understand why there’s profoundly heightened attention. The GOP is divided, and their majority in the House is almost as narrow as it’s ever been … and our last vicious battle over the speaker is far from ancient history. There’s a chaos agent about to inhabit the White House, and he’s got a cohort of chaos agents of their own, including members of that same GOP majority. That’s relevant to a lot, including basic budgetary fights about keeping the lights on, and a lot of other fundamental issues beyond. And I don’t have to remind anyone that there was a pretty significant disruption on the last Jan. 6 of electoral note. So I absolutely understand the conflation of those two streams.

We’ll be fine on the 6th. But that’s not a claim about whether a majority this narrow, this divided, and on some issues, this radical, will be able to be functional on the 7th, or beyond. And if that’s the real source of the anxiety, I don’t think that’s out of proportion at all.

Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica at jhuseman@votebeat.org.

Michigan certifies election in straightforward vote

2024-11-22T20:30:17+00:00

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Michigan’s 2024 general election is certified, making the more than 5.7 million votes cast across the state official.

The certification itself was smooth, a marked difference from 2020, when one Republican canvasser abstained from the certification vote after casting doubt on the validity of Wayne County’s results. This time around, no one protested the results or suggested that certification could be optional. Both have happened in past certification meetings.

But more than ever before, the public and canvassers alike sought to understand every piece of the process: every hiccup, every law, every tabulator program.

Public comment before the State Board of Canvassers largely focused on the Ann Arbor resident who cast a ballot despite not being a U.S. citizen. (In that case, 19-year-old Haoxiang Gao has been accused of two felonies, charges that are working their way through the court system.)

Other questions, primarily from the canvassers themselves to Bureau of Elections Director Jonathan Brater, focused on the nitty gritty of how elections work. How are tabulators programmed? What is an overvote? How were the errors in the unofficial results caught in the canvassing process?

The desire to understand these hidden elements is a new normal, sprung out of the confusion and disarray of 2020 — and it’s not a bad thing, officials say.

“The more that we can educate people, the more we empower people,” Jeannette Bradshaw, one of the two Democrats on the four-member State Board of Canvassers, said shortly after she and her colleagues unanimously voted to certify the election. Bradshaw asked a number of questions to help understand the process herself, she said, and educate anyone else who might be interested.

Not long ago, for the typical voter, canvassing was the most important process they had never heard of. At the county level, the canvassing process entails looking at every precinct’s results, fixing any human errors along the way, and confirming the winners; at the state, it is a matter of further validating that those results are correct. The jobs are largely ministerial and relatively unexciting.

And the 2024 election was especially unexciting. Brater told the board that despite significant recent changes to election procedure, voting ran relatively smoothly. It was the first presidential election to offer voters the chance to vote by absentee ballot, or in person either early or on Election Day, and millions of people were able to cast their ballot without a problem.

“The system worked in 2024, just as it did in 2022 and 2020 and other recent elections,” he said.

But canvassing offers voters and officials alike the chance to look at how well pieces of the system work, even if there is nothing to be changed. It allowed the state canvassers to get a deeper understanding about how human errors led to more scrutiny of unofficial results from Calhoun and Macomb counties, although the problems in both were quickly fixed. It also allowed Anthony Daunt, a Republican on the board, to register his concern over the potential for abuse in same-day registration.

He said that many arguments about noncitizens voting in U.S. elections are “in many ways nonsense and poisonous to the system” — the canvassers cannot do anything about that.

But he said he would like to see something from the legislature or the secretary of state’s office to address the concern, although he didn’t have any specific suggestions. The U.S. Supreme Court has held that people may vote in federal elections without providing documented proof of citizenship, but some states are considering laws to ask for more.

“Those are the types of things that create a climate for ‘conspiracy theories,’” he said. “If we don’t have an answer for that and a solution, I think it just festers.”

Examples of people who are not U.S. citizens casting ballots are extremely rare, and the potential risks are high, including felony charges and loss of legal residency status. As Brater pointed out, there is no single list that officials can use to compare with the Qualified Voter File — Michigan’s file on all voters across the state — to see who might not actually be a citizen.

Michigan instead largely depends on the criminal justice system “as a method of enforcement in deterrence,” Brater said.

It’s likely that questions about that, about canvassing or tabulators, or about any other part of the election are likely to reemerge, board members said, simply because it’s a complex process.

“I think there’s a lot more public education now, and there’s more still” to be done, said Richard Houskamp, vice chair of the board and a Republican. “We’ve had more access, more transparency. I think it’s the key. And as the technology changes, there’s going to be more questions.”

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

As Cochise County certifies election, Peggy Judd looks back at the vote that upended her life

2024-11-21T10:00:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Arizona’s free newsletter here.

WILLCOX, Ariz. — Peggy Judd knew exactly what she needed to do.

Judd, a Republican on the board of supervisors in Cochise County, Arizona, had to vote yes Wednesday on whether to certify the county’s presidential election results. If she didn’t, she would be not only breaking the law, but also violating the terms of her plea agreement.

That’s because, two years ago, after the 2022 midterms, she made a different choice. She and another Republican supervisor voted to delay the certification of that election past the legal deadline.

That decision made her one of a handful of local Republican officials around the country who unsuccessfully tried to halt or delay certification of an election. It also upended Judd’s life.

As she prepares to leave public office at the end of the year, she’s still reckoning with the consequences. And the county, a rural region in the southeastern corner of the state along the Mexican border, is still working through the distrust, turmoil, and national attention that came with Judd’s vote.

After the vote to delay, State Attorney General Kris Mayes launched an investigation into Judd and fellow Supervisor Tom Crosby. A grand jury later charged them with two felonies — conspiracy and interference with an election officer.

Judd initially fought the charges, and amassed $70,000 in legal bills, she told Votebeat in an interview Tuesday. She collected contributions to help pay the tab, including, she acknowledged for the first time, $5,000 wired from the Legal Offense Fund of MyPillow CEO Mike Lindell, who has promoted false theories about elections.

But despite promises from GOP activists and leaders to help anyone who bucked the system, most of the burden fell on her.

Judd, 62, signed a plea agreement last month admitting that she failed to certify the election as required by law. She was sentenced to 90 days of unsupervised probation.

That means that if she didn’t certify this election on time, she could be jailed.

Crosby, for his part, has pleaded not guilty, and his trial is scheduled for January.

Feeling betrayed: ‘I don’t want to be a Republican anymore’

Judd, a former state representative, is preparing to sell her house to her daughter, mostly because she needs money to pay her legal bills. Judd moved in with her mother this summer.

She said the local Republican Party she had helped nurture since the Tea Party movement began in 2008 has turned against her. She doesn’t feel welcome at the local GOP meetings now, she said, and has faced criticism for not going all the way on the effort to hand-count ballots and block certification. She said she plans to unregister as a Republican “soon.”

“When I was behaving, they were very kind to me,” she said. “But the minute I was saying ‘No, wait, whoa,’ then they hated me, like immediately. And that’s why I don’t want to be a Republican anymore.”

Even so, sitting at her sister’s pizza restaurant in Willcox the afternoon before the vote, she said she felt tortured by the thought of voting yes on certification the following morning, because Cochise did experience problems counting ballots.

“So much is going wrong,” she said.

A local reporter had just called her to tell her that the elections director had made a mistake when preparing the hand-count audit of results. And the county had mechanical problems with its tabulator while tallying votes during the initial count.

Judd knew the mistakes did not affect the final vote count. And because Donald Trump won the presidency, Judd said, the community wasn’t claiming fraud this time, or pushing her not to certify.

Still, she said she wanted to be deliberate about her vote. Certifying an election is a ministerial duty in Arizona, not a discretionary one, but she said she didn’t want to vote to certify just because she was obligated to. She wanted to be able to tell her community affirmatively that, despite the mistakes, the election should be certified.

She had been all day waiting for the elections director to send her a post-election report that might help her understand exactly what challenges election officials dealt with during the election, and how they resolved them.

She checked her email inbox one more time. But there was nothing there.

The day before the vote in 2022

Even before her vote not to certify the 2022 midterm election results, Judd was tangled up in lawsuits and drama over how Cochise County would handle them. For months, she and some other elected officials pushed for a full hand count of ballots. A judge blocked the plan, finding it would be illegal under state law.

Around the same time, Crosby and Judd conferred with a private lawyer — separately, they say — outside of a public meeting. They asked him to sue the county’s elections director personally for refusing to hand over the ballots for an expanded audit.

Mayes determined later that the two supervisors’ meetings with the outside lawyer had violated the state’s Open Meetings Act.

Activists also asserted that the voting lab that certified the county’s ballot tabulators had not been properly accredited, a claim that the Arizona Supreme Court had already rejected.

Crosby and Judd said they wanted more information on those claims and voted on Nov. 18 to delay the certification vote until the last day allowed in state law, Nov. 28.

Shortly afterward, the state elections director sent supervisors a letter from the U.S. Elections Assistance Commission confirming that the machines were properly certified.

Nonetheless, Judd said that on the day before the Nov. 28 vote, she met with two activists making the claim. She said she was helping them prepare to present at the supervisors’ meeting the next morning.

When those activists weren’t allowed to speak at that meeting, Crosby and Judd again voted to delay certification — this time, until past the county’s deadline to certify under state law.

Then-Secretary of State Katie Hobbs sued, and a court forced Cochise supervisors to certify later that week, allowing the secretary of state to still meet the deadline for statewide certification.

Judd this week said that no one on her staff had advised her of the county’s statutory deadline to certify, or that her vote to delay meant the county would miss it. But fellow Supervisor Ann English, the board’s only Democrat, says the supervisors were warned of the deadline.

Judd also said she had always intended to certify the election. While she had doubts about the fairness of elections elsewhere, she said she always knew Cochise County’s elections were fair.

What were Judd’s intentions?

A grand jury connected Crosby and Judd’s votes to delay certification with their earlier push for hand-counting all of the county’s ballots, and accused them of an illegal conspiracy to delay the election results.

Judd was putting out Christmas decorations with her family when she got a phone call telling her she had been indicted. She said she was surprised and especially wanted to push back on the idea that she conspired with Crosby. Judd said she never spoke to Crosby outside of public meetings, even about the lawsuit against the county’s elections director.

Judd’s sister, Cindy Chaffey, drove her to Phoenix for her arraignment in December 2023 and described Judd as “really struggling” with the charges against her at that point.

She said Judd is best known in the community not for the election drama, but as a longstanding public servant — one who goes out of her way to help others. Judd, she said, wanted to prove to the community that the county’s election was fair and believed her actions would allow that to happen.

“Because everything she does is with a good heart and with good intentions,” she said.

Not everyone saw Judd’s actions that way.

Sitting at R&R Pizza, Judd puts her phone on the table and replays a voicemail that arrived the day after her Nov. 28 vote to delay the results. The man’s voice on the recording tells her she is “election-denying, crazy, psychopathic anti-American to your very core, for denying people their rightful need to vote.”

“Hopefully you both get hit by semi-trucks,” the voice says, referring to Judd and Crosby. “Get cancer, suffer immensely, and die before the end of the year.”

Judd said she cried when she got that message, and regrets that her staff received messages like that, too. Criticism came from other members of the community as well, especially after Crosby and Judd’s actions prompted the resignation of the county’s well-regarded elections director, Lisa Marra.

English, the Democratic supervisor, said she is disappointed that Judd could get off with “a slap on the wrist.” English said she believes Judd and Crosby should also be held accountable for violating public meeting law.

Judd denies that she did so.

Surprise turned to doubt in 2020

This summer, prosecutors with Mayes’ office questioned Judd about her choices in what Judd called a “free talk” that preceded the plea agreement. She said she was honest when they asked her who had influenced her actions: It wasn’t Lindell, or anyone like that, she said. Mostly, it was her husband, Kit Judd.

Judd grew up in Willcox, and she and her husband raised their family there. She helped organize the Tea Party movement in Cochise, and later served as a state representative.

She and her husband were always Republican, but she said she thought of herself as independent-minded and at one point, voted for Democrat Barack Obama. That’s not something she told her husband about, she said.

But she remembers waking up the day after the 2020 election, surprised that Trump had lost. That surprise quickly turned into doubt about the fairness of the election.

And on Jan. 6, 2021, she was at the rally in Washington, D.C., when rioters broke into the U.S. Capitol, though she said she was with her kids and grandkids and nowhere near the building. She has not been charged in relation to what happened that day. She said she condemns the violence.

During the period after the 2022 election, she was caring full-time for her husband, who had become ill. She attended meetings online and voted from home, with him there, and said his opinions influenced her votes.

Kit Judd died in early 2024.

When trying to decide whether to take a plea agreement, she said she consulted privately with a regional leader in the Church of Jesus Christ of Latter-day Saints, of which she is a lifelong member. He asked her if what she would be admitting to — delaying the results — was the truth. She said it was.

Upon signing her plea agreement, Judd said she felt Mayes launched her investigation for political reasons.

But a week after Judd signed the plea agreement, she said, Mayes came to Cochise County for the opening of the Oletski Border Operations Center. Judd said she approached her for a conversation and found her to be kind. Judd said the talk prompted her to think of Mayes as “more of an ally than an enemy.” Mayes’ spokesperson confirmed the two women spoke, but couldn’t confirm what was said.

Judd said her lawyer will ask the judge who heard her case to end her probation early. She wants a break from holding office for four years, she said, but isn’t ruling out running for supervisor again after that.

She wants to go on a Mexican cruise in January. She plans to try to get approved for a church mission trip later in the year.

First, though, she needed to vote on certifying the 2024 election.

On Wednesday morning, Judd showed up to a nearly empty meeting room. No one from the public spoke before the vote, despite the mistakes that occurred while counting ballots. The elections director had, by then, posted a full report of what occurred, and recommendations for improvements in future elections.

The team was new this year, since Marra’s departure has made it hard for the county to attract and keep elections directors. Joe Casey, associate county administrator overseeing elections, said in an interview that they were learning as they went.

When it came time for her vote, Judd thanked the elections team for “hanging in there” and “putting up with all my questions.”

“You allayed my fears,” she told them.

English and Crosby also thanked the staff. And then, they voted unanimously to certify the results.

“Yay,” Judd said immediately after. “Does it feel like we should have confetti or something?”

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

When will Texas election results come in? Here’s how the process unfolds.

2024-10-31T10:00:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Texas’ free newsletter here.

Soon after polls close at 7 p.m. on Election Day, election officials begin to post early voting totals that will give Texans their first glimpse of results. But knowing the actual outcome of the election could take much longer, as election officials follow a long list of procedures to ensure your vote is counted accurately.

In large counties such as Harris, Dallas, Tarrant, and Collin, where election workers and officials will be coordinating the counting of Election Day ballots coming in from hundreds of voting locations, results are likely to be particularly slow. But it’s not for a lack of effort by election workers often working past midnight to meet the state’s 24-hour deadline.

Securely transporting, counting, and verifying tens of thousands ballots just takes time, experts said.

“Because of the checks and balances, because of the chain of custody, because of the record keeping and bookkeeping, that all takes time after the voters are done voting,” said Tammy Patrick, election administration expert and chief program officer at the National Association of Election Officials. “Then the workers have to secure everything. They have to finish all their paperwork, and then they have to get those results in to the county official.”

Meeting those requirements can be less complicated, and faster, in smaller counties. Here’s what that process will look like in some of Texas’ largest counties.

It’s 7 p.m. on Election Day, and polls are closed. What’s next?

Voters can expect counties to begin reporting early-voting results shortly after 7 p.m. This batch of results includes early-voting ballots and mail ballots received up to that point.

In counties with a population of more than 100,000, election officials are allowed to begin counting received mail-in ballots after polls close on the last day of early voting, to get a head start on reporting results. Smaller counties may begin that process on the morning of Election Day.

Early voting typically accounts for a large percentage of the results, since most Texans vote early. In the 2020 presidential election, 88% of votes in Harris County were reported in the first batch of results released at 7 p.m., said Rosio Torres-Segura, a spokesperson for the Harris County Clerk’s office. Torres-Segura said that this year, the county expects to see a similar percentage vote early.

So what about results from Election Day voting?

Polling places on Election Day are open until 7 p.m., but some polling locations could still have people waiting in line at closing time.

By law, those voters must get the opportunity to cast their ballots. Some voters have had to wait several hours to cast their ballots on Election Day in previous years, such as during the 2020 primaries, when the lines extended for hours after closing time.

This can delay the reporting of election results.

Once all ballots are cast at a voting location, polling location supervisors have a series of security measures to follow. Before leaving the polling location, they must fill out paperwork with details about the number of ballots counted by ballot scanning machines and the number of voters who checked in to vote. They must also pack up the ballots and other items and transport them back to the county’s central counting station — the place where ballots are tallied, vote totals are determined, and unofficial results are generated on election night.

All of this is an important part of the process. Polling location supervisors must pay close attention to detail and ensure everything — ballots, paperwork, and equipment — is accounted for before it’s delivered to the central counting station. In Collin County, this step can take poll workers up to an hour to complete after they have processed all voters and polls have closed.

“What you’re talking about here is election integrity. You have to ensure that you have a good chain of custody, meaning your documents show every single aspect of what’s happened at that polling site,” said Bruce Sherbet, Collin County election administrator.

In large counties, getting ballots and equipment back to the county’s central counting station can take time and delay the election results. Giant Harris County will have election results coming in from 700 polling locations. One of them, in Baytown, east of Houston, is 40 minutes away from county election headquarters.

To speed up the process, Harris and other large counties will have designated substations around the county where election workers can drop off their materials to get the vote counting started.

Tarrant County, which will operate 349 polling locations on Election Day, will have seven sites where election workers can deliver materials, said Clint Ludwig, the county’s election administrator. Harris County officials said they’ll have six sites across the county.

Once everything is turned in, election administrators then review and verify the information from each polling site. Counties must post the comparison of the number of voters and the number of voted ballots on their election websites.

How are votes tallied to produce results in statewide races?

After results from polling locations make their way to the counties’ central counting stations, election officials submit those to the state. Election workers manually enter totals for every race into the statewide election management system, known as TEAM. The Secretary of State’s office then reviews county reports to ensure the information is correct before unofficial election night results are finalized.

If there are any discrepancies between what is posted on a county website and the state’s system, the Secretary of State’s office checks with local officials entering the data to ensure the correct information is included in the state’s unofficial reporting of election night results.

By state law, Election Day totals must be submitted to the state within 24 hours after polls close.

Once vote counting has begun, it cannot stop until it’s done. In large counties, election officials will work in shifts in case counting extends into the early morning hours.

Why are election night results ‘unofficial’?

The election night results are unofficial because counties still must account for late-arriving mail-in ballots, ballots from military or overseas voters, and provisional ballots. The deadlines for receiving different kinds of ballots vary, but all must be reviewed and counted or rejected by Nov. 18, according to the election law calendar.

Once all eligible ballots have been counted, the county commissioners court can conduct the local canvass by reviewing records and finalizing the tally of votes. This must be completed by Nov. 19.

A statewide canvass, in which the governor certifies the results with the secretary of state as a witness, must take place by Dec. 9. At that point, statewide results become official and final.

María Méndez is a service and engagement reporter for The Texas Tribune. Contact María at mmendez@texastribune.org

Natalia Contreras covers election administration and voting access for Votebeat in partnership with the Texas Tribune. Contact Natalia at ncontreras@votebeat.org

Despite federal court ruling, Arizona has power to ensure counties certify election results

2024-09-30T22:01:47+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Arizona’s free newsletter here.

A federal judge has blocked an Arizona rule aimed at enforcing timely finalizing of election results, ruling that the state can’t simply exclude a county’s results if local officials there refuse to certify them, and noting the various legal alternatives that should make the rule unnecessary.

Secretary of State Adrian Fontes had added the rule to the state’s most recent Election Procedures Manual, giving the secretary the power to move forward with the statewide certification without a county’s results.

But following a challenge to the rule led by conservative groups, U.S. District Court Judge Michael Liburdi ruled Friday that Fontes’ office did not address why the additional rule was needed when there are “various alternatives available to the State to ensure finality and prevent disenfranchisement of all voters.”

Liburdi’s order included a detailed explanation of those options to ensure all votes are counted on time.

For example, Fontes, a Democrat, can sue county supervisors and ask a judge to immediately force them to certify, and the state can bring criminal charges against the supervisors personally — both of which happened in connection with the 2022 election.

A spokesperson for Fontes’ office said the office was reviewing the order and deciding whether to appeal.

The question of what happens when an Arizona county refuses to certify its results is not at all hypothetical.

During the 2022 midterm, two Republican supervisors on the three-member Cochise County Board of Supervisors refused to certify the county’s results before the county’s deadline. A court ordered them to do so before the secretary’s deadline to finalize statewide results, prompting a hurried vote. The two supervisors were indicted last year on felony charges of conspiracy and interference with an election officer. A trial is set for January.

In right-leaning counties such as Mohave, supervisors have openly considered voting against certification in recent years, under pressure from GOP leaders and constituents who did not believe the elections were fair.

The rule Fontes added created a pathway for the state to certify statewide election results without including vote totals from a county where the board of supervisors refused to do their duty to certify.

In a court filing in August, Fontes’ office wrote that the new rule was intended to be a last resort in the “extremely remote possibility” that other backstops failed and the secretary would need to act in time for statewide certification deadlines.

Before relying on it, his office wrote, he would first use " all of the tools at his disposal to include every legally-cast vote in the state’s vote totals.”

Arizona’s Election Procedures Manual is meant to act as a rulebook for county officials on how they must follow state election law. When Fontes rewrote it last year, he took into consideration how the midterm election played out, and added new rules on controversial topics such as hand-counting ballots and certifying results. Gov. Katie Hobbs and Attorney General Kris Mayes, both also Democrats, signed off on the manual in December.

Several other conservative groups sued in state court earlier this year, including Republican legislative leaders who focused their complaint in part on the rule about excluding a county’s results. That case is still pending.

Then in July, other conservative groups, including the Trump-aligned America First Policy Institute, brought the federal lawsuit that prompted Liburdi’s ruling last week. The lawsuit also challenged other rules in Fontes’ manual that restricted activities that the office felt would intimidate voters. A state court had already temporarily blocked those rules, and Liburdi ruled Friday that he would do the same until a hearing on the matter.

Fontes’ office had asked the judge to dismiss the lawsuit, writing that its characterization of the rule on excluding a county’s results set forth “a parade of horribles that could only occur if a lengthy chain of contingencies” occur.

Liburdi on Friday rejected that argument and approved the conservative groups’ request for an injunction, comparing the new rule to a “nuclear weapon” that had the potential to disenfranchise voters at the secretary’s whim.

“Defendants’ position is that it is better for election results to be final, as opposed to accurate, and, in true utilitarian fashion, it is better to disenfranchise ‘a few’ (potentially millions), as opposed to all,” he wrote. “But what value does finality accomplish when it is attained at the expense of democracy?”

Liburdi acknowledged three alternatives proposed by America First to certify a county’s results if supervisors are refusing to do so by its deadline, including allowing the secretary to certify the canvass in lieu of a board, seeking a declaratory judgment from a court as to the correct vote counts, and providing for the appointment of an auditor or special master to certify the results.

“Under any of these alternatives, the State would achieve finality in election results by the statutory deadline, and in a manner that ensures all voters are enfranchised,” Liburdi wrote.

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

ACLU drops preemptive lawsuit after Michigan county canvasser swears he’ll certify November election

2024-09-10T19:28:43+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Michigan’s free newsletter here.

A Kalamazoo County canvasser has signed a sworn affidavit pledging to fulfill his legal obligation to certify the November election, in response to a lawsuit brought by the American Civil Liberties Union of Michigan after he originally said he might decline to sign off on the election results.

Having reached a satisfactory outcome, the ACLU will voluntarily drop its suit against the canvasser, the organization said.

“This is a clear recognition there is no legal defense if you are sued for these things,” said Phil Mayor, senior attorney for the ACLU of Michigan. “This is establishing the principle that if you refuse to certify, you will be held responsible.”

The lawsuit stemmed from comments the canvasser, 73-year-old Robert Froman, was reported to have made to The Detroit News last month. Froman, a Republican, said that he believed the 2020 election was stolen from former President Donald Trump, and that if the 2024 election went the same way, he would not certify, the News reported. Trump lost Michigan to now-President Joe Biden by about 150,000 votes.

Michigan law makes clear that certification is not optional for any canvassers, whether at the county or state level. Those who shirk their duty face potential misdemeanor charges as well as fines. The ACLU’s lawsuit asked a judge to declare that Froman must certify. With the signed affidavit from Froman, Mayor said, the ACLU had achieved its goal.

If Froman does refuse to certify in November, the ACLU would sue him again, Mayor said, along with any other canvasser who refused.

Froman said Tuesday that he was glad the lawsuit was over and that he got the result he wanted. He previously told Votebeat he would certify the election and felt his words had been misconstrued in the News’ report. (In a letter included in the ACLU’s original filing, The News stood by its reporting.)

“The process doesn’t change just because it’s November,” Froman told Votebeat. “To sign a letter that says I’m going to do what I already committed an oath to was easy.”

The lawsuit is bigger than just Froman, though. It’s part of a growing effort nationwide by election officials and voting rights groups to ensure that elections results are certified on time, and to forewarn those who might consider not certifying.

The lawsuit against Froman may be one of the first preemptive lawsuits filed against a potentially defiant election official, experts say, but there’s a good chance it won’t be the last as officials aim to prevent potential crises like the ones seen in 2020.

That was the year that two Republican canvassers in Wayne County who were allegedly under pressure from Trump said they wouldn’t certify the election results because of concerns in Detroit. At the state level, too, a Republican initially refused to certify, putting Michigan’s certification in limbo until the other Republican canvasser voted to approve it.

Several states have since made it harder to not certify an election.

Michigan’s laws are clearer than most states on the requirement to certify, and state officials have made clear they are willing to enforce them. When the two Republican members of the Delta County Board of Canvassers refused to certify a recall election in May, in part because of a push from local advocates demanding a forensic audit, the state pressured them to follow the law, and they eventually complied and signed off on the election results.

Secretary of State Jocelyn Benson and Attorney General Dana Nessel used the incident as an opportunity to make clear that failing to certify would be a violation of a canvasser’s duties and would invite civil and criminal charges as well as fees.

Other states have used their similar laws to resolve certification crises. An Arizona court, for instance, forced a county board to certify its election results in 2022. Two of those board members were then indicted for initially refusing to certify.

That kind of pressure is necessary anywhere in the country where voters risk not having their votes counted because of outside concerns about the legitimacy of the election, Mayor said.

“This is 100% a victory not only to ensure the vote is protected in Kalamazoo but also to make clear to canvassers around the state that they have a clerical and ministerial duty that is not up for debate,” he said.

Disclosure: Reporter Hayley Harding was previously employed by The Detroit News.

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

A Michigan canvasser said he might not certify the election. Now the ACLU is suing him.

2024-09-05T17:04:56+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Michigan’s free newsletter here.

The American Civil Liberties Union of Michigan is suing a member of the Kalamazoo County Board of Canvassers, hoping a judge will declare that the man must certify the November election results, after a newspaper reported him saying that he might not.

The suit is part of a growing legal effort around the country to ensure that the November election is certified on time by making it clear to any potentially defiant officials that they’re not allowed to refuse to certify, and that they could face charges or penalties if they do.

Update: ACLU drops preemptive lawsuit after Michigan county canvasser swears he’ll certify November election

The ACLU suit follows a Detroit News report that Robert Froman, a 73-year-old Republican canvasser in Kalamazoo County, said he would not certify the 2024 presidential election if it went the same way as the 2020 election, which he believed was stolen from former President Donald Trump. Trump lost Michigan by about 150,000 votes to Joe Biden.

The ACLU, representing two Kalamazoo County residents, is asking the court to declare that Froman is legally required to certify the election. State law already requires canvassers to certify elections within 14 days or face potential misdemeanor charges for “willful neglect of duty” and huge potential costs.

Froman told Votebeat on Wednesday that he would certify the election and said his words were taken out of context. The Detroit News, in a letter included in the ACLU’s filing, stood by its reporting.

“I think this whole thing is kind of ridiculous,” Froman told Votebeat, arguing that it made no sense to sue him over something he hasn’t done. “I don’t care about 2020. ... I just want to make sure everyone who walks into a precinct gets their vote counted.”

Why would the ACLU sue preemptively?

It’s not unusual to sue over something that has not happened, although plaintiffs don’t often ask a judge for something as straightforward as declaring that someone must follow a law.

Cases where a person or board is actually taken to court over certification are relatively rare, although officials and outside groups do threaten legal action. Lawsuits over mere threats of refusal to certify appear to be rarer still, and Froman’s case could be the first of its kind.

It makes sense in this case for the ACLU to file the suit preemptively, and in general for officials and advocates around the country to zero in on the legal obligations of canvassers, said Quinn Yeargain, a professor of law at Michigan State University.

Election officials acting proactively across the country now can help minimize problems after the election, Yeargain said. The goal is to keep people from trying to act outside of the prescribed duty of their job to protect the sanctity of elections.

“It’s an unfortunately necessary course of action that has been taken to respond to truly unnecessarily, highly egregious conduct” across the U.S., Yeargain said, referring to the string of certification battles since the 2020 election.

Before 2020, certifying an election was generally uneventful and took place behind the scenes after an election. But in Michigan and other states that year, Trump and his allies roiled the certification process by promoting unsubstantiated claims of voting irregularities and fraud.

In Wayne County, the state’s most populous, two Republicans fought certification and were allegedly pressured by Trump himself to not certify. At the state level, a Republican initially refused to certify, putting Michigan’s certification in limbo until the other Republican canvasser voted to approve it, saying the board had “a duty to certify based on these returns.”

The effort to reinforce the duty to certify is “a logical, rational response, based on what we’ve seen so far, seeking to prospectively guard against the further erosion of democratic norms,” Yeargain said.

A 2022 law clarifies what canvassers do — and can’t do

Michigan’s laws make it clearer than many states that canvassers must certify elections based on vote totals presented to them. They are not allowed to investigate the election or question its legitimacy based on outside factors. If county canvassers don’t certify an election, they’re required to turn the results over to the Board of State Canvassers, who are then required to certify the election. And in that case, the county that didn’t certify would have to pay for the state-level canvass, a cost that could be passed on to the individual canvassers.

A constitutional amendment adopted by the 2022 passage of Proposal 2 clarifies that only election officials — not canvassers — can audit elections. Proposal 2, which included a series of election reforms and was approved with nearly 60% of the vote, also requires canvassers to verify elections based only on compiled vote totals.

Officials saw an example of what a failure to certify could look like in May, when Delta County canvassers initially refused to certify a recall election after advocates called for a forensic audit despite no evidence of irregularities. After pressure from the state, canvassers did eventually certify the election.

Secretary of State Jocelyn Benson and Attorney General Dana Nessel used the incident as an opportunity to make clear that failing to certify would be a violation of a canvasser’s duties, and involve civil and criminal charges as well as fees.

Other states are invoking similar laws to resolve or head off certification fights. In Arizona, a court forced a county board to certify its election results after it failed to do so by the state deadline in November 2022 under a similar statute. Two of those board members were then indicted for initially refusing to certify.

In Georgia, the state Democratic Party and the national party have sued to prevent the state election board from implementing new rules they say could prevent certification come November. Specifically, Democrats cite two new rules in their lawsuit as violations of the state’s requirement to certify: one that requires election officials to certify after conducting a “reasonable inquiry” without defining what that might be and another that appears to give county election boards the ability to investigate elections if vote totals are off.

The rules were approved with support from State Election Board members whom Trump later praised by name at a rally.

In Michigan, the lawsuit against Froman seeks to have a judge declare that canvassers must abide by their constitutional duties and cannot “unlawfully foist his obligations onto members of the Board of State Canvassers.” A refusal to certify would violate Kalamazoo County residents’ right to vote, the suit says.

Phil Mayor, senior attorney for the ACLU of Michigan, said that the major goal of the suit was to prevent the politicization of the canvasser’s job, which he referred to as “the simple ministerial duty of grade school math”: adding vote tallies together and confirming that the stated winner has the highest total.

Refusing to certify comes with an immense financial cost that is unfair to taxpayers, he said, and sows doubt in the election that can have long-term consequences.

“Mr. Froman may have said the quiet part out loud, if his reported comments are true, but there’s a very good reason to believe that there are other canvassers who feel the same way but aren’t saying the quiet part out loud,” Mayor said. “This lawsuit ought to be a message to them that they too will be held accountable if they refuse to do their duty.”

Nathaniel Persily, a Stanford law professor who specializes in election law, said it wasn’t clear if the suit would achieve its stated goal of getting a judge to remind Froman of the requirements of being a canvasser. But legal success isn’t the only thing on the line, he said.

“They want to put officials in Michigan and elsewhere on notice that there will be legal consequences for officials who fail to perform their duties required by law,” Persily said.

Disclosure: Reporter Hayley Harding was previously employed by The Detroit News.

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

Amid fears of a November crisis, states have legal mechanisms to ensure votes get certified

2024-08-22T21:34:55+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

New rules in Georgia governing how local officials finalize vote totals have some election watchdogs worried that loyalists of former President Donald Trump could trigger a crisis if he loses the state in November, by abusing their authority to delay or avoid certifying results.

Election experts say they’re confident that the system’s checks and balances will quash those efforts and that each state has the legal authority to force members of county election boards to fulfill their duty to certify results. But they and state election officials are still concerned that the attempts could push the process close to strict deadlines and stoke doubts about the integrity of the election.

While the rule changes have put Georgia in the spotlight in recent days, several other swing states are also bracing for battles over the administrative process known as certification.

Each state handles certification differently, and the process used to be a routine part of election administration that took place mostly behind the scenes after votes were cast. That changed after the 2020 presidential election, when some Republican members of Michigan canvassing boards initially refused to vote to certify the results amid challenges from Trump, though they ultimately did so.

Since then, some local officials in states including Georgia, Arizona, Michigan, Nevada, and Pennsylvania have declined to certify elections, often at heated public meetings packed with people airing unsupported conspiracy theories or baseless allegations of election fraud.

In every such case, after intervention by state officials or the courts, the election was certified.

Several swing states, including Arizona and Michigan, have taken steps since 2020 to explicitly clarify that local officials cannot legally refuse to certify election results, and to spell out potential consequences if they try, including criminal charges.

But experts say that contentious certification processes erode trust in elections, and they’re wary of rule changes, such as the ones in Georgia, that could be used to justify delaying or refusing certification.

“I think courts are equipped to handle this,” said Derek Muller, a law professor at the University of Notre Dame who specializes in election law and has blogged about the changes in Georgia. “The problem is really foaming up the public anger and dissension.”

Nathaniel Persily, a Stanford University law professor who specializes in election law, agreed. “I don’t think this particular problem is an unsolvable one or one that the courts are unable to address, but it’s emblematic,” he said. “The fact that we are even talking about it as a possibility tells you about the multiple fronts on which the war for a secure election is being fought.”

Peter Bondi, the managing director of Informing Democracy, a nonpartisan, nonprofit election watchdog group, said he believes that changes Congress and some states have made since 2020 have strengthened safeguards, but there is a “strong movement and a growing movement to try to bend the system.”

Informing Democracy is monitoring states, specifically Wisconsin and Michigan, for late changes, but Bondi said he believes Georgia is the only state considering large-scale changes at this point.

Because the rules around certification and the state-local power dynamics vary from state to state, Votebeat’s journalists examined what has happened since 2020 with election certifications in key states, and how well states are prepared to enforce proper certification in 2024.

Jump to each section about:

• Georgia
• Arizona
• Michigan
• Pennsylvania
• Wisconsin
• Texas

Georgia: Rule changes raise prospect of delayed certification

Democrats and election watchdogs say two rule changes this month by the Georgia State Election Board appear to be partisan efforts that threaten to sow doubts about election integrity.

The board includes three members whom Trump has personally praised. With those three votes, the board adopted a new rule this month that said local officials should certify that the results are complete and accurate “after reasonable inquiry,” but it did not define what constitutes a “reasonable inquiry.” Muller and other experts said that introduces ambiguity into an otherwise straightforward process.

This week, the board voted 3-2 to adopt a separate rule saying members of county election boards “shall be permitted to examine all election related documentation created during the conduct of elections prior to certification of results.” The new rule also requires county boards to meet and verify vote counts before the deadline for certain types of ballots to be accepted or processed.

The rule also appears to give the board a new investigative role, saying that in any precinct where the number of ballots exceeds the number of unique voters, the board “shall investigate the discrepancy.”

The rule says that if any error is discovered “that cannot be properly corrected, the Board shall determine a method to compute the votes justly.”

Board members who supported the new rules said they will help ensure election integrity. “If the board or the superintendent found that there were votes that were made illegally, they should not be counted,” said one board member, Janice Johnston, according to the Atlanta Journal-Constitution.

But election fraud is rare, and some election officials noted that once a ballot is cast, it is impossible to tell who cast it, leaving them no way to pull an illegally cast ballot from the count.

Minor discrepancies between ballot counts and voter totals are not uncommon, and typically aren’t a sign of malfeasance.

The rule echoes a court case filed earlier this year by Julie Adams, a Republican member of the Fulton County elections board. Adams refused to vote to certify the results of two primary elections, saying she had not been permitted to fully examine election records and confirm the results to her satisfaction. She is now seeking a court ruling that would affirm her right to see such records.

State officials and local election administrators opposed both of the new rules, to no avail. Secretary of State Brad Raffensperger, a Republican, said in a statement that the board was engaged in “activist rulemaking” that would “delay election results.” The Georgia Association of Voter Registration and Election Officials submitted comments opposing the proposals and, in the case of the second rule, arguing that it didn’t align with existing legal deadlines.

On Tuesday, the association, which has more than 500 members statewide, implored the state board to stop changing the rules this close to an election. “In a time when maintaining public confidence in elections is more important than ever, making changes so close to Election Day only serves to heighten concerns and fears among voters,” it said in a press release.

Rick Pildes, a constitutional law professor at New York University’s law school and a specialist in legal issues concerning democracy, said he thinks there’s likely to be a lawsuit challenging the new rules, to “get clarity from the Georgia courts well in advance of the election about what Georgia state law does and doesn’t permit or require of these county boards.

“It’s ultimately state election law that is going to determine what power and limitations these county boards operate under,” he said.

Joseph Kirk, the elections supervisor in Georgia’s Bartow County, said he isn’t as worried about the rule allowing a “reasonable inquiry” because he always investigates any discrepancies and provides his local board with explanations and a report between the election and the certification vote.

But the rule passed this week requires each county board to meet by 3 p.m. on the Friday following Election Day to review vote totals by precinct and method cast, Kirk said. That’s earlier than an end-of-day Friday deadline to determine whether to count provisional ballots, accept any additional verification needed in order to count absentee ballots, and receive military and overseas ballots.

“I’m just confused how they got that 3 p.m. number when it doesn’t align with anything else,” he said.

—Carrie Levine

Arizona: Indictment may influence supervisors considering certification

Arizona found out in November 2022 what would happen if a county board refused to certify its election results by the deadline in state law: A court forced them to immediately certify their results, and they did.

That’s because state law says county supervisors have a non-discretionary duty to certify their county’s results as presented by election officials, unless there are results missing. Even then, they can delay the certification only for a short period of time. If a county refuses to approve its results this year, a judge will again force it to, said Phoenix-based election lawyer Andy Gaona.

“There is no serious dispute about (the law), so the courts may again have to serve as the ‘backstop’ against a county that chooses to go down that dangerous path,” Gaona said.

In an attempt to fortify the law, Secretary of State Adrian Fontes in December added a new rule to Arizona’s election manual.

The rule states that if a county doesn’t send its certified results to the Secretary of State’s Office by the deadline for the secretary to certify the statewide results, the secretary must proceed with the state canvass without that county’s results. This could effectively disenfranchise an entire county’s voters. It’s most likely this would affect voters in conservative counties, where Republicans control the boards and where recent efforts to block certifications have been debated.

Republican legislative leaders have sued Fontes over this rule and others. They told a judge that the supervisors’ duty to canvass “does not require it to blindly accept the returns if legitimate concerns are present” and that Fontes does not have the authority to canvass without a county’s results. The judge heard the case this spring and has yet to issue a ruling.

Also pending are the ultimate consequences for the two Republican supervisors in Cochise County, Tom Crosby and Peggy Judd, who voted to delay a certification after the 2022 midterm election. In November, a state grand jury indicted them on charges of conspiracy and interference with an election officer. The trial in that case isn’t expected until after the election, in early 2025.

Still, the case may influence supervisors considering how to approach certification of their election results in November, Gaona said.

“I think it’s safe to assume that the pending criminal charges against Supervisors Judd and Crosby will be on the minds of those county supervisors who are debating whether to play games with their county’s canvass,” he said.

Indeed, in Pinal County this month, Supervisor Kevin Cavanaugh voted to certify the county’s primary results even though he said he didn’t believe they were accurate, telling Votebeat later that he feared prosecution if he voted no.

Cavanaugh also said he was voting yes “under duress” — and the legal implications of that type of vote have not yet been explored.

— Jen Fifield

Pennsylvania: Delays in certification cut close to deadlines

Pennsylvania has faced a number of delays in certifying its elections in recent years, fueling concerns that protracted certification disputes could cause the state to bump up against or possibly miss the new federal deadline for certifying presidential results.

Following the May 2022 primary, three counties engaged in a dispute with the state over certifying their results that took two months to resolve. Berks, Fayette, and Lancaster counties originally refused to include mail ballots that lacked a handwritten date on the return envelope in their certified results, despite a federal court ruling that the date was immaterial to a voter’s eligibility, meaning the ballots should be counted.

The Pennsylvania Department of State sued the counties, and eventually got a court order compelling the counties to certify new results including those ballots.

Then, after that year’s midterm elections, precinct-level recount petitions delayed certification in some counties, which in turn delayed the state’s certification until Dec. 22.

During the primary this April, a Republican lawsuit in Centre County, home to Penn State University, delayed the state’s certification more than a month after the election.

If delays of the same length were to occur in this November’s election, the date of state certification would fall two days after the new Dec. 11 deadline for certifying presidential results.

The Department of State, however, is confident the state will meet its certification deadline for Electoral College votes this fall. It said that the situation in Centre County was resolved in a “timely manner” and that it is confident the judicial branch will “faithfully fulfill its duty to expeditiously resolve post-election disputes.”

“Pennsylvania is prepared for this election, and voters should have the utmost confidence in the electoral system,” press secretary Matt Heckel said.

The department did not respond to a question from Votebeat about whether it was prepared to again take legal action against counties that refuse to certify. But in a statement in May to radio station WITF, Deputy Secretary for Elections Jonathan Marks said the department would be monitoring court cases and “take whatever action is appropriate.”

A bipartisan bill that passed the state House in July — and awaits action in the Senate — would help firm up Pennsylvania’s certification timeline. That would mitigate the risk of missing the new federal deadline for presidential certification, said Marian Schneider, senior voting rights policy counsel at the American Civil Liberties Union of Pennsylvania.

Certification has also been a concern for the ACLU, one of the most active groups in election litigation in recent years.

“I definitely think counties refusing to certify is a risk in the fall,” said Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania.

She noted certification is not a discretionary act for county commissioners, and that the ACLU was prepared to step in to help litigate a certification dispute if necessary.

“The ACLU is ready and willing to protect the rights of voters,” she said.

— Carter Walker

Michigan: State set safeguards after 2020 debacle

In Michigan, state law requires that county canvassers certify elections. It’s not a matter of choice — it is a requirement of the job, one that carries a potential misdemeanor charge of “willful neglect of duty” for anyone who refuses to do it.

Each board of county canvassers in the state is made up of four people, two Republicans and two Democrats. They have 14 days after an election to certify the results, although it is often done earlier than that.

State law makes clear that results must be certified based only on a review of the compiled voting totals themselves, without regard to anyone’s concerns about potential wrongdoing or the legitimacy of the election.

If canvassers at the county level fail to reach a majority vote to certify the vote within 14 days, they’re then required to turn over the results to the Board of State Canvassers, who are also required to certify the results. A county that failed to certify would have to pay for that state-level canvass, and state officials have made clear those expenses can be passed on to the canvassers themselves.

Those mandates are a change in Michigan, where in 2020, Republicans on the bipartisan Wayne County Board of Canvassers initially declined to certify election results. Later reporting from The Detroit News showed that Trump had personally pressured the county canvassers to not certify the results, which showed Joe Biden winning. One Republican member on the four-person Board of State Canvassers also resisted certification in 2020, citing concerns about the election in Detroit and elsewhere.

Michigan largely defanged future attempts to refuse certification in 2022 when nearly 60% of voters approved Proposal 2, a large-scale expansion of voting access in the state at the constitutional level. Proposal 2 is best known for extending early voting access as well as the right to be a permanent absentee voter who automatically receives a ballot each election. But the constitutional amendment also made clear in the state’s laws that only election officials, not canvassers, can audit elections. It also established that canvassers are required to certify results based only on the compiled voting totals, documents known as “certified statements of votes.”

Even with new laws, though, certification disruptions continue. As recently as May, two Republican county canvassers initially refused to certify a county commissioner recall election, as advocates called for a hand count and forensic audit. The Delta County clerk told CBS News that there were no irregularities, and canvassers eventually did certify after pressure from the state, but the threat remains.

An analysis from The News earlier this month found that 55% of the current county canvassers were not in that position back in 2020, and nearly two-thirds of Republican canvassers are new. Officials have expressed concern the change might mean that despite the potential penalties, canvassers loyal to Trump may again try to block certification in the state if he does not win it.

State officials have made clear that the statute does not allow that. After the Delta case, Secretary of State Jocelyn Benson and Attorney General Dana Nessel issued a joint release reminding canvassers of their ministerial duty with the elections.

“There is no room for canvassers to go beyond their authority, take the law into their own hands, or undermine the will of Michigan’s voters,” Benson said. “Any canvassing board members that fail to fulfill their responsibilities under the law will see swift action to ensure the legal certification of election results, which will involve significant unnecessary costs for their local communities, along with possible civil and criminal charges against those members for their actions.”

— Hayley Harding

Wisconsin: Law is clear on canvassers’ duties

Unlike some other swing states, Wisconsin has had no instances in recent memory of counties or municipalities refusing to certify elections. And there aren’t any notable murmurings of any canvassing boards preparing to block certification of the November 2024 election.

One reason counties aren’t likely to refuse certification is that state law holds that canvassing boards’ duties are mandatory, said Mike Haas, Madison’s city attorney and the former administrator of the Wisconsin Elections Commission.

“If they refuse, then somebody could take them to court to get a judge to require that the results be certified,” he said.

There are several additional reasons why experts say Wisconsin canvassing boards are unlikely to object to certification, and why any objections that did occur would likely be futile.

One reason is a state law that provides the Wisconsin Elections Commission a path to step in and secure returns from a county that fails to provide them. Another law allows county officials to step in and get returns from a municipality that doesn’t provide them.

The Wisconsin Elections Commission doesn’t appear to be anticipating any local boards blocking certification.

“We are confident Wisconsin’s local election officials are committed to administering elections in a fair, impartial and efficient manner,” commission spokesperson Joel DeSpain said.

By law in Wisconsin, county canvassing boards must be bipartisan. They consist of a clerk, or in some cases a deputy clerk, along with two other county residents, one of whom must be from a political party different from the clerk’s. That mix could also help keep certification objections from taking hold, said Jeff Mandell, an election attorney and co-founder of the liberal group Law Forward.

“I have every confidence that were this to pop up in Wisconsin, we would get it resolved, and we would get it resolved in time,” Mandell said.

Another reason there appears to be little momentum behind stalling certification is that under state law, recounts and post-recount litigation constitute “the exclusive judicial remedy” for challenging election results related to an alleged irregularity, defect, or mistake committed during voting or canvassing. Recounts can take place only after a jurisdiction’s canvassing is complete.

“There are sufficient safeguards in Wisconsin’s process for certification to really head off a lot of possible problems,” said Bryna Godar, a staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative. “There is also a strong tradition and practice of county clerks and other election officials really just being committed to getting their results correct and getting results reported correctly.”

— Alexander Shur

Texas: Recounts create delays

Texas hasn’t seen state or local officials being unwilling to certify election results in recent history, and the state is unlikely to see an effort by Trump supporters to overturn its election results in November, given that Trump won the state by a healthy margin in 2020 and is likely to do so again, in keeping with Republicans’ decades-long dominance in the state.

Increasingly, an obstacle to certification in Texas is delays due to requests for recounts of local races — even in counties that lean heavily Republican.

The Texas Secretary of State’s office did not respond to questions from Votebeat about whether the office anticipates a push to prevent local officials from certifying election results in November.

A request for a recount in Texas doesn’t affect whether local officials can canvass the results. The canvass is mandatory and done during a public meeting by the election administrator and the county commissioners court or by the political party chairs during a primary election. The canvass must be completed no later than the 11th day after Election Day, but no earlier than three days after Election Day — and only after all absentee, overseas, military, and provisional ballots have been counted.

Although a request for a recount does not delay the canvass, according to state law, it does halt the issuance of “a certificate of election and qualification for the office involved” until after the recount is completed, which can take weeks. That’s the document that’s signed by a county or city executive, or party chair, to finalize the outcome of a race and authorize the candidate to take office.

Recounts rarely change election outcomes. A recount of one race doesn’t delay the certification of the results in all other races of an election. But experts say the unresolved challenges create chaos and undermine the public’s trust in the process.

Aside from certification delays due to recounts, another ongoing concern in finalizing election outcomes is an increase in lawsuits challenging the results. An election contest can be filed the day after Election Day – and a runoff election for the contested office cannot be held until a judge makes a final ruling on the election contest.

At least one election contest in Texas, dating back to 2021, has yet to be resolved by the courts — a challenge filed by a conservative group questioning a measure in a constitutional amendment election. Despite the ongoing lawsuit, Gov. Greg Abbott certified the election.

— Natalia Contreras

Carrie Levine is Votebeat’s managing editor and is based in Washington, D.C. She edits and frequently writes Votebeat’s national newsletter. Contact Carrie at clevine@votebeat.org .

Five of Pennsylvania’s ‘fake electors’ from 2020 are back on Trump’s 2024 slate

2024-08-16T23:40:27+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Five Pennsylvania Republicans who joined an alternate slate of electors for Donald Trump in 2020 will again serve as presidential electors in this year’s contest.

William “Bill” Bachenberg, Bernadette Comfort, Ash Khare, Patricia Poprik, and Andrew Reilly are included on a list of electors submitted to the Pennsylvania Department of State by the GOP.

Those electors, along with 15 others, drew criticism after submitting their names as electors for Pennsylvania in December 2020 and casting votes for then-President Trump, even though Joe Biden won the state’s popular vote. But unlike similar groups of alternate or “fake” electors in other swing states in 2020, the Pennsylvania slate avoided legal repercussions because of a caveat they included in the certificate documenting their vote.

Of the five electors appearing again on this year’s slate, three who spoke to Votebeat and Spotlight PA indicated they would be open to doing the same this year if they felt there was a similar legal dispute over the results.

“I honestly believe any electors for either party would do that,” Poprik said.

Pennsylvania, like most states, allocates its presidential electors according to who wins the popular vote. This year, the winning candidate’s electors will meet Dec. 17 to cast their votes.

One elections expert said people who participated in a 2020 elector scheme shouldn’t be allowed to do so again this year.

“It is the voters who determine elections — not ‘fake electors’ who attempt to upend the results of a fair election,” said Lindsey Miller, director of strategic research at Informing Democracy, a nonprofit made up of lawyers, election experts, and researchers that focuses on vote-counting and certification.

“Those who participate in election fraud should be held accountable, not given another bite at the apple,” Miller said.

Who are the electors who choose the president?

In the United States presidential election system, each state is represented by a certain number of electors based on its population. Electors are citizens of the state whose vote determines who wins the presidency. In 2020, Pennsylvania had 20 electoral votes. This year it has 19.

Each political party selects a slate of electors before the general election. Once the winner of the state’s popular vote is determined, the governor authorizes that candidate’s slate to cast their votes in the Electoral College (except in two states, Nebraska and Maine, which award some of their electoral votes proportionally and can split them between candidates). Each state’s electors then submit a certificate of their votes to Congress, which accepts and counts those electoral votes on Jan. 6 of the year following the presidential election. A presidential candidate needs 270 or more electoral votes to win.

Because Joe Biden won the popular vote in Pennsylvania in 2020, his slate of electors were chosen to be part of the Electoral College, and Congress counted the state’s electoral votes for him. But a slate supporting Trump also convened and cast purported electoral votes.

How did Pennsylvania’s alternate electors come together?

According to reporting from The New York Times and other news organizations, as well as Votebeat and Spotlight PA interviews with participants, the plan to convene alternate electors was organized by the Trump campaign.

Lawyers for the campaign, including former New York Mayor Rudy Giuliani, appointed a “point person” in each state to help organize the alternate electors, according to the Times. In Pennsylvania, that person was state Sen. Doug Mastriano, who reportedly needed assurances that the plan was legal.

However, two of the electors — Sam DeMarco and Charlie Gerow — said they mainly interacted with Trump attorney James Fitzpatrick.

On Dec. 14, the alternate GOP electors met in the offices of Quantum Communications, Gerow’s Harrisburg-based public affairs firm, to cast votes for Trump. Pennsylvania law requires that the electors meet in the state capital. Biden’s electors also met in Harrisburg to cast their votes on this day.

Unlike the Republicans in some other states, Pennsylvania’s GOP electors added an important caveat to the certificate they signed, saying that the votes they were casting should be counted only if a court found that they were the “duly elected and qualified electors.”

That likely shielded them from the legal consequences faced by participants of similar plots in Michigan and Arizona. But it was unlikely anyway that the alternative GOP slate could emerge as qualified electors.

Many of Trump’s lawsuits challenging Pennsylvania’s results had concluded by Dec. 14. Some of the original Trump electors, such as Pennsylvania GOP Chairman Lawrence Tabas, also declined to sign the certificate either due to concerns over its legality or because they recognized Biden as the legitimate winner, according to the final report of Congress’s January 6 committee, which investigated the 2021 attack on the Capitol on the day the electoral votes were tallied.

What they’re saying this time

Votebeat and Spotlight PA sought comment from the five 2020 GOP alternate electors who are electors again this year to ask them what they would do if they felt there was again a dispute over the results.

Khare and Reilly both disputed that the 2020 document they signed was an “alternate” slate, citing the caveat the electors added about the courts. Poprick also said the caveat was a “big” sticking point for the group.

“We were unanimous in saying we don’t have authority, so we made it contingent,” Reilly said. “If I am a 2024 elector and I am asked to cast a contingent vote, and if it’s legally proper, I will do so again.”

Reilly added that under “no circumstances” would he cast a vote for a candidate who was not certified and had “no path to victory.”

Khare said that in 2020, the alternate electors were not trying to evade the law and that the election was still “in dispute.”

When asked if he would sign a similar alternate slate this year, Khare said, “This is a hypothetical, and in politics, we do not answer hypothetical questions. It depends on what happens.”

Khare added that in 2020 things were “a mess” and that he didn’t expect that scenario this time because “people are aware of election integrity.”

Poprick also said she would be open to again putting her name on an alternate slate of electors.

“If the circumstances were the same and there were pending legal matters that had to be adjudicated, and you had to meet by that date, I would,” she said.

Comfort and Bachenberg did not immediately return phone messages or emails requesting comment.

Miller, of Informing Democracy, said the public should remain vigilant about efforts to weaponize misinformation, undermine the vote-counting process, and attack certification.

“These efforts will fail,” she said. “We remain committed to identifying any officials who may pose a threat to fair elections this November so that they may be monitored and held accountable for every step of the post-election process.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Lawmakers hope this bill will help Pennsylvania avoid November election certification crisis

2024-07-10T17:48:04+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Listen to an audio version of this story produced in partnership with WITF News.

In a bipartisan effort to avert a potential crisis in certifying November’s election results, the Pennsylvania House passed a bill Tuesday that would cement the timelines for resolving post-election legal battles and prevent delays in finalizing the state’s electoral votes.

A federal law passed in 2022, the Electoral Count Reform Act, set a strict deadline for states to certify slates of presidential electors: Dec. 11. But Pennsylvania doesn’t have its own set of deadlines to meet that target, which could set the state up for a potential conflict with the federal law.

“This gap poses a significant risk of missing the federally mandated deadlines for certifying presidential election results,” said Rep. Benjamin Sanchez (D-Montgomery), the bill’s prime sponsor. “Our goal with HB 2473 is to mitigate this risk and guarantee Pennsylvania’s voice is heard and respected when Congress counts the state’s electors.”

This year, Pennsylvania officials are again preparing for a contentious presidential election, with former President Donald Trump returning as the likely Republican nominee. The Trump campaign in 2020 used the courts to challenge its loss in Pennsylvania, and seized on ambiguities in the U.S. Electoral Count Act to try to overturn the election, leading to the Jan. 6, 2021, attack on the Capitol. Trump has repeatedly declined to commit to accepting the results of the 2024 election, most recently in his debate with President Joe Biden in June.

As Votebeat and Spotlight PA reported in March, various scenarios risk pushing Pennsylvania’s electoral vote certification past the Dec. 11 deadline, potentially forcing the courts to intervene.

In Pennsylvania, election results must first be certified by a county board of elections, and a majority of that board could withhold their signatures from documents needed to certify a county’s vote, as happened with three counties in the 2022 primary.

Another delay could result from Pennsylvania’s law allowing as few as three voters to seek a recount in their local precinct. An influx of such recount petitions could tie up county certification in the courts, as the recount requests are processed. This, in turn, would delay the state’s certification. That’s what happened after the November 2022 midterm elections, delaying state certification until Dec. 22. In that year, there was no presidential race, though, and no federal deadline by which the state had to certify its election.

The bill tries to head off these scenarios in a number of ways. If a voter, candidate, or party wants to challenge a decision of a county board of elections — such as a county’s decision whether to count certain ballots — the bill would require that courts resolve that appeal within seven days.

In the event of contested presidential election results, if a party in a case wants to challenge a lower court’s decision, they have one day to appeal to the state Supreme Court. The Supreme Court must resolve the dispute no later than seven days before the presidential electors meet to cast their votes. This year, the court’s deadline would be Dec. 10, the day before the federal deadline for states to certify their slates of electors under the Electoral Count Reform Act.

The bill also places requirements on the Department of State. The secretary of the commonwealth would be required to certify the state’s election results by the fifth Tuesday after the election, which also falls on Dec. 10. It would also require the secretary to notify legislative leaders if they are going to miss the federal deadline to certify the election.

Twelve states have passed similar laws since 2022 to clear up conflicts between their state law and the Electoral Court Reform Act, according to the National Conference of State Legislatures.

Rep. Seth Grove (R-York) co-sponsored the bill, and two of his Republican colleagues joined him in voting for it. It passed 105 to 97.

“It’s a good step in building a complete election timeline (for the) judiciary, counties, state to make sure that we get to a point where we’re not a laughingstock of the country,” Grove said.

Grove noted, however, that judges sometimes hesitate to enforce deadlines set by the legislature.

Susan Gobreski, vice president of policy at the League of Women Voters of Pennsylvania, said she was glad to see the bipartisan support for “a centrist approach” to avoiding problems in the state’s election certification.

The bill still needs to pass the Republican-controlled Senate, where its prospects remain uncertain. Neither Sanchez nor Grove said they had reached out to their Senate counterparts about the bill. The state’s budget is still not finished, several days past the June 30 deadline, and that’s currently lawmakers’ focus. It’s unclear when the legislature will finalize a deal or when the state Senate will recess for the summer.

A spokesperson for Senate Republicans did not respond to a request for comment.

Update, July 10, 5:05 p.m.:

A spokesperson for the Department of State said they are confident Pennsylvania will meet every election-related deadline under federal law and are “reviewing the bill in its current form.”

“We would welcome any changes to the Election Code that ensure state law reflects federal requirements,” said Ellen Lyon, deputy director for communications.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

New U.S. deadline for certifying election results adds to pressure on Pennsylvania officials

2024-03-28T09:00:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

After the 2022 elections, a flurry of precinct-level recount petitions prevented Pennsylvania from certifying its election results until Dec. 22 — weeks later than usual.

This year presents an even more difficult scenario: a new federal law that says states must certify their slate of presidential electoral votes by Dec. 11. That’s about five weeks after Election Day.

Election officials and policy advocates are concerned that another influx of recount petitions after a much busier election could make it harder for Pennsylvania and its counties to meet the tighter timeline. If the state can’t comply, they worry, the courts may have to get involved and force certification, providing fodder to those looking to challenge the state’s results in a year when the margin of victory is expected to be much closer than in most midterm races.

“Because of the challenges we saw in 2022 and 2023, the concern is we’ll see a repeat,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. If the petitions number in the hundreds or thousands, “that could cause delays in the courts or to certification.”

What ECRA requires, and what state law allows

The new federal deadline came out of the Electoral Count Reform Act of 2022, a law that Congress passed and President Joe Biden signed as a way to try to prevent the kind of post-election chaos that then-President Donald Trump and his allies created after the 2020 election, culminating in the Jan. 6, 2021, attack on the Capitol.

The law cleared up much of the ambiguity created by the original law governing electoral vote certification, the Electoral Count Act of 1887, said Derek Muller, an election law professor at Notre Dame Law School. In particular, the reform requires a firm deadline by which executives in each state must certify presidential election results and provide them to the National Archives.

Previously, there was only a functional deadline by which states were expected to provide their certified slate of electors, known as the “safe harbor” date.

Under the ECRA, Pennsylvania’s Department of State and Gov. Josh Shapiro are required to certify the state’s slate of presidential electors by Dec. 11.

Join us for a live discussion with Pennsylvania’s top elections official

To meet that deadline, the state has told counties — which are responsible for conducting the election, counting results, and providing original certification — that they must certify their general election results by Nov. 25.

That timeline is already effectively written into state law: Pennsylvania’s Election Code states that counties must certify by the third Monday after the election — this year, that’s Nov. 25.

But the rule has not been strictly observed, or enforced.

“Historically, we have not seen the enforcement of that date,” said Miller, of Protect Democracy. “There’s no mechanism for the secretary [of the commonwealth] to force counties to certify or take up the certification themselves, absent a court order.”

And according to the Election Code and Department of State guidance, if a county is facing a recount petition, it may delay its certification.

“Frankly, Pennsylvania has some issues when it comes to things like recounts. It’s a very decentralized process,” said Muller, the election law professor. “It’s not an ideal situation to be resolving disputes on a statewide basis in a timely fashion.”

Why the courts may have to step in

In 2020, the state had no issue certifying its election by late November. But after the 2022 midterm election, groups of voters statewide filed more than 100 petitions, seeking to have ballots recounted at the precinct level in the gubernatorial and U.S. Senate races. Most of those petitions were filed not with any specific claim of fraud or error, but rather based on the petitioners’ belief that something improper occurred.

The petitions appeared to be part of a loosely coordinated effort by online groups of supporters of that year’s Republican gubernatorial candidate, according to The Philadelphia Inquirer.

For weeks after the election, many of the petitions wound their way through county courts. Judges offered varying opinions on whether evidence of fraud was needed or if the petitions needed to be filed in every precinct where the election took place. For statewide contests, that would be over 9,000 precincts.

Forrest Lehman, the election director for Lycoming County in north central Pennsylvania, said he had hoped the legislature would shore up vulnerabilities in the post-election process in response to Congress passing the Electoral Count Reform Act, though that now seems unlikely.

“We need to look at what needs to be clarified, maybe what parts need to be hardened a little bit so that someone can’t take advantage of them,” he said. “The recount petitions are one example, but also [there’s] the potential for a repeat of what we saw previously, where a county simply refused to certify its results and they had to be taken to court.”

Lehman was referring to a dispute between the Pennsylvania Department of State and several counties after the spring primaries in 2022. Berks, Fayette, and Lancaster Counties refused to include mail ballots without handwritten dates in the certified results they provided to the state, despite a federal court ruling that the date was immaterial to a voter’s eligibility.

The department sued the counties, and eventually got a court order compelling the counties to include the votes. But the process took over two months.

A similar scenario could play out this year, according to Muller. If a county misses the Nov. 25 deadline, or if it fails to include all ballots in its certification, the Department of State could file suit in state court.

The Department of State could also be the target of legal action if it misses the Dec. 11 federal deadline.

In this scenario, Muller said, the presidential candidate who won the state would likely sue in state court for an order forcing the department to certify the results.

The courts would need to move quickly, as members of the Electoral College meet in each state to vote six days later on Dec. 17.

Even if the certification came after that date, it would still be legally valid, Muller said. The Electoral College Reform Act requires Congress to accept a certificate ordered by a court.

Still, such a delay could provide fodder for members of Congress to challenge the state’s slate of electors when they meet to ratify the Electoral College vote on Jan. 6.

A court-ordered certification could spark a political dispute over the role of the judiciary in the process.

In 2020, Republicans at the state and federal levels criticized state courts for taking actions they viewed as an overstep of authority. For example, state GOP leaders claimed the Pennsylvania Supreme Court had opened “the door to serious questions about the integrity of the process” when it ruled that counties could count mail ballots postmarked, but not received by Election Day. The number of ballots affected by that ruling was not enough to sway the presidential race.

In a statement, the Department of State said it has been working to educate courts and county officials “and to highlight the need for elections returns to be certified by the Electoral Court Reform Act’s deadline and for all post-election legal proceedings to be expedited to ensure deadline mandates can be met.”

Recount petitions are easy to file

The likelihood of precinct-level recount petitions being used again this cycle is high, as the barrier to file them remains low. The fee to file a recount is just $50, the same as it was in 1927. Adjusted for inflation, the equivalent is $887 today.

Susan Gobreski, vice president of policy at the League of Women Voters of Pennsylvania, said there needs to be a balance between making it possible for voters to challenge results when something is wrong and making sure those challenges are not specious.

“It shouldn’t be so expensive or so complicated that someone with valid concerns can’t raise them, but they have to be credible concerns,” she said, adding that it frustrated her in 2022 that many of the people who filed petitions based on fraud claims did not report their claims to law enforcement.

Democrats in the state House proposed changes to the petition process as part of a larger group of amendments to a bill seeking to move the 2024 primary. However, those amendments ultimately sank the entire effort.

Miller, of Protect Democracy, said advocates are again pushing this year for changes to the recount process that would create a firm requirement for specific allegations of fraud and increase the filing cost. But he’s not counting on them happening.

“It’s very unlikely, in my opinion, that the General Assembly would take up any legislative efforts on the Election Code that take effect by the 2024 election.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Arizona moves up 2024 primary as part of bipartisan fixes to election timeline problems

2024-02-09T16:51:28+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

Arizona has fixed a looming crisis for the election in a way that election officials say will allow them to submit presidential results to Congress in time. Republicans are touting the fix as a boon for election integrity, and Democrats say it protects voters in the long run.

State lawmakers voted nearly unanimously Thursday in favor of a bill meant to fix the problem by altering several deadlines in state law, including moving the primary election up a week to July 30. The vote came after months of fraught negotiation and a final, painstaking week of closed-door deliberations, and a couple of the negotiators teared up as they realized the bill would become law.

The legislation, HB2785, also includes several smaller changes that will produce faster final results, including one controversial change that will give voters fewer business days to respond if county officials see a problem with the signature on their mail-in ballot.

Coming to an agreement was a feat for the closely divided Legislature, which Republicans control by just one seat in each chamber. Lawmakers last year failed to advance any major election bills that Gov. Katie Hobbs, a Democrat, was willing to sign.

Why Arizona is worried about finishing the presidential election on time but other states aren’t

But Hobbs praised the bipartisan solution on Thursday, and her office said she would likely sign the bill Friday.

“Arizonans can rest assured that their voices will be heard and that our elections will run free of political interference,” Hobbs said in a statement.

Lawmakers were under pressure to act after recent changes to state and federal law juxtaposed in a way that made the state’s election timeline unworkable. In 2022, state legislators tightened the threshold that triggers automatic recounts in a way that ensures statewide recounts will be common and Maricopa County, at least, expects a recount after every election. Meanwhile, changes to federal law pushed up the date when states’ presidential election results must be final.

The fix came just in time: Election directors said that the last possible date to move the primary election was Feb. 9. After that, it would be too late to change the cascading deadlines that dictate how elections are run.

But negotiations over a fix dragged out. Republicans tried to use the dilemma as leverage to advance election-related measures they have wanted for years but that weren’t related to the timeline problem, and Democrats balked, saying the proposals would negatively affect voters.

Republicans did win one major battle, putting into law specific requirements for how officials must verify voter signatures on mail-in ballots. County recorders that control this process said it won’t change how they do their job.

State Rep. Alex Kolodin, who carried the Republican bill to the finish line this week, said upon voting that even though Republicans had to “give up things we didn’t want to give up,” they still secured changes grassroots groups have wanted for years.

State Rep. Laura Terech, who helped lead negotiations for Democrats, said she has barely eaten or slept this week. Watching from the Senate gallery, she said she began crying as the “yes” votes came up on the board. “I was so relieved,” she said.

A key to winning votes for the deal was making some of the changes temporary. For example, the primary date is changing for this year only. And the change to the length of time voters have to respond to problems with their mail-in ballot signature, from five business days to five calendar days, is only in effect through the 2026 elections. Then, it reverts back to five business days.

These temporary changes will allow lawmakers to gauge how the changes are working. But it also means that county officials will need to advocate in 2026 for a longer-term solution, said Jen Marson, executive director of the Arizona Association of Counties, who represented county election officials in the negotiations.

Still, Marson said she was glad that there was a fix for this year, and stressed that it was satisfying to watch everyone work together. Marson often takes heat from Republican lawmakers during legislative sessions as she explains why election officials are opposed to proposed changes.

“It was very satisfying. I’m actually pretty emotional about the whole thing, honestly,” Marson said, choking up. “It’s very nice to see everybody come together.”

“Voters > power grabs”

Election directors sounded the alarm last fall on the timeline problem, saying the expected recounts would push the primary results so late that officials would miss the deadline to send mail ballots out to military and overseas voters in the general election. They warned that the recounts also would push general election results so late, they wouldn’t meet the federal deadline for sending presidential results to Congress.

Election officials called for a special session in the fall, or in early January, to fix the problem quickly. That didn’t happen, but the fractious negotiations continued.

Marson said there has not been one easy week since negotiations began. Eventually, on Monday, Kolodin and Terech introduced two separate bills on the week of the deadline.

Democratic lawmakers were not supportive of the change that reduces the so-called “curing” period for mismatched signatures from five business days to five calendar days. While most recorders were OK with it, the idea did concern Pima County Recorder Gabriella Cazares-Kelly, who said Monday she thought it would reduce the ability of rural and tribal voters, especially, to respond to the county and ensure their ballot is counted because of their reliance on public transportation and public wifi at libraries, both which will be unavailable on weekends when the curing period now ends.

“Taking a day away from a cure period could have significant impact,” she said.

The agreement requires county offices to stay open on the weekend for signatures to be cured, and requires the officials to give political parties a list of voters that need to correct signatures earlier and more frequently than is typical, so they can also try to reach those voters.

Democrats also pointed to the signature verification requirement changes as one way Republicans were trying to muddy what they said should be a clean fix to the problem sparked by the recount law.

At a news conference Monday morning, voting rights groups gathered with Democratic state lawmakers holding signs that said “voters > power grabs.” State Sen. Priya Sundareshan, a Democrat, said at the podium that Republicans were trying to “Christmas tree” their proposal.

Kolodin said Monday that the changes he was proposing to signature verification were non-negotiable. “It will now be coming out only over my dead body,” he wrote in a statement.

Lawmakers, county and state officials – including Hobbs – gathered in the basement of the Capitol on Tuesday night to negotiate out of the public eye. Sundareshan said she left that meeting unsure whether an agreement would be reached.

When Kolodin got to the Republican caucus meeting on Wednesday, he wasn’t happy. He had agreed to remove from his bill a Republican proposal that would have moved the primary election to May starting in 2026, and one that would have closed high schools on Election Day so they could be used as polling places.

He gripped the podium tight and raised his voice as he went back and forth between urging his colleagues to vote for the bill on Thursday and saying how angry he was about the concessions he had felt pressured to make when negotiating with Democrats to keep the bill alive.

“I just want to pull the freakin’ bill, just because I’m so pissed,” Kolodin said.

Some representatives told him the last-minute nature of the bill and its amendments were concerning them. One, state Rep. Matt Gress, told him he was “deeply concerned,” in part because the legislation didn’t do much to speed up ballot counting.

Arizona allows voters to drop off mail-in ballots at polling places on Election Day. Those ballots then must have their signature checked after polls close, which in populous Maricopa County slows counting considerably. The new law allows voters, starting in 2026, to show an ID to bypass the signature check, but it doesn’t require them to do this, which Gress thought it should.

It was unclear whether Hobbs would sign the bill because of the new requirements for verifying voter signatures. She vetoed a bill to put these requirements into law last year.

The changes require county officials comparing the voters’ signature with signatures from their voter record to use a list of specific characteristics, the way loops are written and the way the signature trails off, to confirm that the voter was the one who signed the envelope that contains their mail-in ballot. This is a list that county officials already use to train workers that review signatures, but it’s currently a recommendation and not a requirement.

The bill includes last-minute amendments that, presumably, helped win Hobbs’ support. For example, it specifies that the past and current signatures don’t have to match exactly, and that workers don’t need to consider each characteristic one at a time.

These changes will make it harder for candidates to challenge election results in court based on a claim that workers did not diligently review signatures, as GOP gubernatorial candidate Kari Lake unsuccessfully tried to do after her 2022 election loss to Hobbs.

Other small changes will have more effect on those administering elections than those voting.

For election officials, the new law means having less time to proof ballots before they are sent to voters. They will be required to prepare their final results more quickly for certifying, and will have less time to research the status of voters who cast provisional ballots. They will, though, be able to submit results to the state electronically instead of driving to Phoenix to deliver them in person, as the law currently requires.

County supervisors, under the agreement, will not be able to postpone certifying the results for any reason – state law currently allows for a short postponement in specific circumstances when results are missing.

The agreement speeds up the process of recounts, but it doesn’t change the threshold that triggers an automatic recount, which means Maricopa County, at least, will still likely see recounts after every election.

But it does tell candidates involved in these tight races that they can opt out of having the recount completed, if they choose.

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

Arizona Republicans sue secretary of state over rules on election certification, claiming disenfranchisement

2024-02-01T22:47:56+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

Update, Feb. 1: This story has been updated to reflect a response from Secretary of State Adrian Fontes.

Arizona Republicans filed a lawsuit Wednesday asking a judge to throw out numerous election rules made by Secretary of State Adrian Fontes, including one that forces supervisors to certify their election results without delay or changes and another that could potentially lead to a county’s election results not being counted if county officials don’t finalize them on time.

The rules are included in the Elections Procedures Manual approved in December by Fontes, the governor and the attorney general — all Democrats. It says county supervisors have no authority to change vote totals, reject the election results, or delay certifying the results without statutory authority or a court order. And it says if a county doesn’t provide the secretary of state its certified results, known as a canvass, by the time the secretary must certify statewide results under state law, the secretary “must proceed with the state canvass without including the votes of the missing county.”

This appears to be an attempt to address the potential that county supervisors could protest election results by delaying or blocking certification, as two Republican Cochise County supervisors tried to do after the midterm election.

State Senate President Warren Petersen and state House Speaker Ben Toma, both Republicans, filed the lawsuit in Maricopa County Superior Court on Wednesday alleging that state law doesn’t give the secretary of state the authority to make rules about how election results are finalized, and even if Fontes did have this right, these rules are not in alignment with state law.

They say Fontes’ new manual is an attempt to “disenfranchise voters and subvert state election laws.”

“Arizona law does not require boards to vote a certain way,” Petersen wrote in a statement. “If a board improperly fails to certify election results, the proper solution is to turn to the courts for help, not disenfranchise all voters within an entire county.”

The challenges to the manual come as the 2024 election is already underway, with counties sending out ballots for the state’s March 19 presidential preference election to military and overseas voters this week. Legal fights can be lengthy, and it’s hard to say whether the lawsuit will be resolved in time to affect the way this year’s elections are run.

A spokesperson for Fontes said Thursday the office is preparing a legal response to the lawsuit.

“The EPM was created with input from county officials, tribes and through public comment before forming a consensus with Governor Katie Hobbs and Arizona Attorney General Kris Mayes,” said communications director Aaron Thacker. “Secretary Fontes is prepared to defend the EPM that was created to provide uniformity and clarity for elections officials, so they can administer free and fair elections for the people of Arizona.”

In addition to the conflict over certification, Petersen and Toma allege Fontes is illegally delaying the implementation of a new law enacted in 2021 that requires county recorders to take voters off the mail voting list if they don’t use a mail ballot for two consecutive election cycles. The lawmakers believe that the first removals under the new law should happen after the 2024 election cycle, rather than after the 2026 election cycle, as Fontes said.

Other disputes included in the lawsuit include how and when recorders are instructed to remove non-citizens from the voter rolls, and some requirements for people who collect signatures for ballot measures.

In 2022, as Republicans pressured county supervisors across the state not to certify their elections over unproven claims of fraud and illegal voting machines, it was unclear what would happen if a county did not certify its results in time. When two Republican Cochise County supervisors refused to vote to certify the county’s election by the deadline, then-Secretary of State Katie Hobbs and other parties sued. A judge then ordered the supervisors to vote to certify, and the majority of the board complied.

State Attorney General Kris Mayes later opened an investigation into the Cochise delay, and a state grand jury has indicted the two supervisors for conspiracy and interference with an election official. A trial is scheduled for May.

State law requires county supervisors to canvass their election by 20 days after the election, a non-discretionary duty. The only exception is if there are any missing returns among polling place results — and even that only warrants a temporary postponement.

The language Fontes has in the manual on this topic is similar to that in the prior manual, from Hobbs in 2019, but he added the language regarding delaying the certification.

State law also requires the secretary of state to canvass statewide general elections on the fourth Monday following the election.

The prior Elections Procedures Manual did not address what the secretary of state should do if the secretary didn’t have a county’s results by the secretary’s deadline. Neither did Fontes’ initial draft of his new manual, submitted to Hobbs and Mayes for review in October.

The new language to the manual came after Hobbs, now the governor, and Mayes began suggesting edits in October. It does not mention the courts as a potential remedy to solve disputes over election results, the solution advocated by Republicans.

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

Why Arizona is worried about finishing the presidential election on time but other states aren’t

2024-01-11T22:26:46+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

The officials who run Arizona’s elections put out a blunt reminder last week: If lawmakers don’t soon change key dates related to the upcoming presidential election, military voters may get their ballots late, and results might not be delivered to Congress in time.

Their letters, addressed to Gov. Katie Hobbs and Senate President Warren Petersen, raise important questions: Why is Arizona the only state that appears to be facing this conundrum, and how can it be solved?

Votebeat’s review of election timelines and voting rules across multiple states shows a combination of factors in Arizona have created a long, unique, and unforgiving timeline for the upcoming election. Those factors include a new state law that basically guarantees recounts every election and a new federal law hardening a deadline for the presidential race, but also the state’s voter-friendly rules for mail ballots and a long timeframe for counting ballots.

Other states have a shorter mail ballot timeframe, faster counting laws, quicker certification dates, less risk of recounts — or a combination of the above — which allow them to get everything done faster, according to Votebeat’s review.

Update, Feb. 9: Arizona moves up 2024 primary as part of bipartisan fixes to election timeline problems

A spokesperson for the Massachusetts Secretary of the Commonwealth said even with the state’s quicker counting laws and fewer recounts, deadlines are still tight. “We are lucky we are not a swing state,” communications director Debra O’Malley said.

There are potential remedies in Arizona, and the governor may soon call a special session that would fast-track solutions. But it is proving tricky to get Republican lawmakers and county officials aligned. And they must propose changes that won’t be vetoed by Democratic Gov. Katie Hobbs.

If lawmakers don’t change the timeline by March 1, the current calendar is locked in for good because of an important candidate-related deadline on March 2, said Jen Marson, executive director of the Arizona Association of Counties.

But Hobbs didn’t mention the issue in her state of the state speech on Monday, the first day of the legislative session, which worried some who hoped it would be a priority when the session began. Maricopa County Supervisors Chairman Jack Sellers sent out a statement the next day urging elected leaders in both parties to act quickly, saying “a solution cannot wait any longer.”

Not everyone sees the timeline as problematic, though. Michelle Ugenti-Rita, a Republican and former state senator who sponsored the new recount law and is now running for Maricopa County supervisor, called the issue a “red herring” and said election officials are no longer credible because of mistakes they have made running elections.

“They constantly change why they can’t do something,” she said. “They can never, ever, do their job.”

Overall, election directors say they need to compress their primary plan by 19 days to fit between the Aug. 6 primary and Sept. 21, the day general election ballots need to be sent to military voters. And they say they need to cut their general election plan by 17 days to meet a Dec. 11 presidential elector deadline. Many of the cuts would require changes to state law.

Here’s where the timeline could be tightened, and potential roadblocks.

Primary date

Widening the timeline between the primary and general election would give officials more time. Arizona’s primary election, on Aug. 6, is one of the later primaries among the states, though by far not the latest.

The county association has proposed moving it up by a week or two, to July 24 or July 30. This may be a hard sell to incumbent candidates in the state Legislature who use the time after the session ends to focus on their campaigns — including sometimes collecting contributions from lobbyists who are banned from giving during the regular session. While the session is only meant to be 100 days, last year’s was double that and didn’t end until July 31.

Spreading out the primary from the general is also seen by some political observers as benefiting more moderate general election candidates, since it provides more time after the highly partisan-charged primaries for independent voter outreach.

However, changing this date would shift all other deadlines in the primary election calendar, which could cause confusion among candidates and voters. And as the election gets closer, changing the primary date becomes less appealing for those running the election. They’ve already secured polling locations, poll workers have blocked out dates, and deadlines are looming.

“If you had asked me back in October, that would have made a lot more sense,” said Eslir Musta, elections director in northern Arizona’s Coconino County. “A lot of good things could have come out of it because we would have planned around it. Now, seven months away from the primary election, it does make me cringe.”

Scott Jarrett, elections director in Maricopa County and president of the Arizona Election Officials Association, says election officials across the state remain united in their belief that an earlier primary date is necessary to meet their deadlines.

“We are prepared to overcome any obstacles that may occur by changing the date of the Primary, including renegotiating agreements for Vote Centers and the hiring of temporary election staff,” Jarrett said. “The more quickly a decision is made on the timeline, the easier it will be to address the change and educate the public.”

Voter-friendly rules

Glancing at other states with late primaries, such as Florida on Aug. 20 and Massachusetts on Sept. 3, it’s easy to spot a major difference that allows them to get their elections done more quickly.

Under law, they have to wrap up counting quickly. In Massachusetts, the law requires the municipalities that run elections there to finish all counting on the night of the election, with some exceptions. In Florida, counties have to get all early voting results out by election night, and most day-of voting results are out then, too.

Maricopa County typically takes a few days or more to get the vast majority of ballots counted. One main reason is because Arizona allows voters to drop off mail ballots at polling places on Election Day, which then still need to be verified — and hundreds of thousands of voters used this option in 2022. On top of that, there’s a five-day cure period that allows voters to fix signature and eligibility issues.

Cutting back the mail drop-off date at polling locations, or changing the cure period, could save some days. Florida cuts off mail ballot drop-offs at polling places on the Friday before the election, and the cure period is only two days. But this type of change might be seen by some — including Hobbs — as negatively affecting voters.

Musta said election officials are wary of making changes that would “change the nature of voting.” “That’s why we are doing the work we are doing,” he said, “to serve the voters and to provide better access.”

Also built into the results timeline are a few post-election audits, including a partial hand count of ballots, which typically take a day or two.

Long timeline before certifying results

Even if a county is super quick at counting, their deadline for getting the state final results after a primary election isn’t until 14 days after the election, and the secretary of state certifies the election on or before the third Monday after the election. Other states have quicker timelines for certifying the primary, or don’t do a statewide certification at all.

The county association has proposed moving these dates forward a few days and allowing counties to send results electronically instead of physically taking them to the Secretary of State’s Office in Phoenix.

Recounting and finalizing results

A recount can begin in Arizona only once statewide results are certified. This differs from some states that do local recounts, at least, before the statewide certification. That both requires them to finish quickly, and also prevents adding days onto the timeline just for recounting.

Most states also don’t need to worry about having recounts as frequently as Arizona does, if any, because they don’t have the same automatic recount trigger. Only a handful of states have the same law as the one Arizona enacted in 2022, which triggers a recount if the difference between the winner and the runner-up was less than 0.5 percent of the total votes cast for the two candidates.

Maricopa County, at least, expects a recount after every election under the new law. If the law had been in place for the 2020 primary, one state senate race and two local contests would have been recounted. If it had been in place for the 2022 primary, two local contests would have been recounted, according to the county association.

Arizona’s 2022 statewide recount stretched out for weeks. The process starts with a court order, and then the Secretary of State’s Office goes to each county in-person to re-test their tabulation machines. The secretary’s tests took five days in 2022, but the county association is proposing cutting it to two.

Recounting the ballots took counties anywhere from a few days to a week or so, depending on the county’s size – with Pinal County taking more than two weeks.

Along with re-tabulating all ballots by machine, the counties also must re-do a post-election hand-count audit of a portion of ballots. Allowing this to happen during the machine count, or not requiring it all, would save days, according to the county association.

Only once the primary results are final, after any potential recount, can the counties design their general election ballots. The county association has proposed cutting a ballot proofing period for cities and candidates from five to two days.

The changes that would help tighten the timeline between the primary and general would also help after the general election. To tighten the general election plan further, the period for candidates to challenge their results could be reduced from five to three days after the statewide certification.

County officials are willing to negotiate, Marson said, as long as it gets them the extra days they need.

“This is not the year for trying,” Marson said. “This is the year to figure it out.”

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org.

Arizona’s presidential election timeline doesn’t work. Election officials want a quick fix.

2023-10-19T16:20:14+00:00

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Election officials in Arizona are pushing Democratic Gov. Katie Hobbs and state lawmakers to hold a special legislative session to correct what they see as a potentially impossible timeline for next year’s presidential election resulting from new federal and state laws.

County election directors and officials with the Arizona Association of Counties have been meeting with Hobbs’ staff and Republican legislative leaders, asking them to convene a special session by mid-November to consider fixes such as moving up the primary election date, condensing the timeline for counting and recounting ballots, and changing certification deadlines, Jen Marson, AACO’s executive director, told Votebeat on Wednesday.

Republican legislative leaders said in statements on Wednesday that they will work in coming months to address the issue. House Speaker Ben Toma has told AACO that the issue will be expedited during the regular session beginning in early January, likely in a concurrent special session, according to House spokesperson Andrew Wilder. A concurrent special session would allow lawmakers to address it quickly.

If the timeline is not fixed before the election cycle begins, the election directors warned in a Sept. 11 letter first reported by the Washington Post, any statewide recount in the primary election could result in military and overseas voters not getting their ballots on time. And any statewide presidential recount in the general election could mean that the state misses the federal deadline to send in the state’s presidential electors.

Coconino County Elections Director Eslir Musta said without a change for the general election, “quite frankly I don’t see a path forward in meeting the statutory deadline.”

So far, Marson said, the leaders they have spoken with have understood the timeline is a problem — but that doesn’t mean that the state’s divided leadership will be willing to consider the same solutions.

In a pair of news releases Wednesday, the Republican chairs of legislative election committees, state Sen. Wendy Rogers and state Rep. Jacqueline Parker, pledged to meet with election officials and others over the next few months to come up with a solution to the problem, which they called “urgent election deadline discrepancies.” But while Marson said simple calendar adjustments might offer the best fix, the lawmakers indicated they see this as an opportunity to make wholesale changes to election policy — something that Hobbs isn’t likely to entertain, considering her vetoes of election bills last legislative session.

“Our objective is to address the root of the problem,” Rogers wrote, “rather than simply treat the symptoms. … A true legislative fix will provide clarity, promote transparency, and will save taxpayer dollars.”

Marson and election directors that lead the Election Officials of Arizona met with Parker and Rogers on Wednesday afternoon to discuss the problem further. Waiting until January to consider legislative fixes means that any legislation would need an emergency provision to take effect in time for the primary election.

The troublesome timeline in 2024 stems from two changes: a new recount law in Arizona enacted in 2022 that was always expected to cause problems, and especially likely to drag out finalizing primary election results, but wasn’t yet in effect for 2022’s primary, and a new federal law hardening presidential election deadlines that would affect the 2024 general election.

The changes are likely on a crash course, the election directors warn.

The new recount law widened the margin of votes that triggers an automatic recount, and is expected to trigger a time-consuming statewide recount every election.

The directors have said they will likely need to start designing ballots for the general election, which rely on the primary results, before any primary recount results are final. The current timeline gives only four days for designing, proofing, and printing ballots. Musta said that typically takes weeks, including a state law-required 5-day proofing period for candidates and political parties.

“What worries me with the timeline is it doesn’t give you enough time to proof and reproof and create the checks and balances in our system to make sure that the end product is correct and it’s not rushed,” Musta said.

For the general election, any presidential recount results will need to be final before Dec. 11 for a federal deadline related to the casting of electoral votes. In 2022, half of counties weren’t done with statewide recounts at that point, and statewide recount results weren’t final until Dec. 29.

Marson said that elections directors began to realize this problem with the general election timeline as they prepared their 2024 election calendars this summer. By September, she said, they had agreed it was a universal problem.

Jen Fifield is a reporter for Votebeat based in Arizona. Contact Jen at jfifield@votebeat.org .