Democracy Decoded: Season 4, Episode 4 Transcript

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Jonathan Diaz: Early voting has already started in a number of states. Ballots have been sent out to military and overseas voters from every state in the country. We're already very much in the general election right now, so it's way too late to be changing the rules that are going to govern how those votes will be counted.

Simone Leeper: I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center. CLC advocates for every voter in America to be able to meaningfully participate in and affect the democratic process. This season, we're looking squarely at elections in the tried and tested systems that ensure our elections are safe, secure, and accurate.

In this episode, we're bringing you another up-to-the-minute interview with an election law expert to help you better understand the issues affecting this year's elections. Our topic for today is something that's been getting a lot of attention lately, election certification. On election day, most American voters don't give a thought to election certification. Their energy, after all, is on deciding how to vote. But the post-election process of counting votes and formally determining a winner can sometimes be politicized, especially in close contests.

In some cases, they're using the systems in place designed to help elections run smoothly to instead attempt to undermine the electoral process. These moves have caught our attention at CLC, so I'm here today with my colleague Jonathan Diaz to talk about them. Jonathan is an attorney who helps lead CLC's work on combating election manipulation as our director of voting advocacy and partnerships. Welcome, Jonathan, and thanks for joining us for this important discussion.

Diaz: Thanks for having me.

Leeper: Okay. Let's start with a foundational question. Can you tell us in a nutshell what election certification is and why it's so important to understand?

Diaz: Sure. Certification is the last step in the election process. It is the official declaration and publication of the final election results, and it comes at the end of a long process of verifying, counting, and confirming that all of the ballots that make up those final totals were properly counted and canvassed.

Leeper: Can you take us through the process as it's supposed to work? What are the key stages that go into certifying an election?

Diaz: So every state uses slightly different terminology for these post-election processes, but they all follow essentially the same framework. It starts with tabulation or just counting, where poll workers, often in bipartisan teams, take each of the ballots that were cast in a given election and add them up, counting who each voter chose in each of the races on the ballots and adding it all up until they've counted every ballot in their precinct or in whatever jurisdiction they're counting for. After the vote counting and tabulation is done at the precinct level, we move on to the process of canvassing.

Canvassing looks at the tabulations of those ballots in the aggregate. Countywide officials will take all of those votes counted at the precinct level, "Here are the vote totals from precinct one, precinct two, precinct three," and add all of those up in the aggregate and make sure that the math checks out. And when the canvassing process is completed, the final canvassed results, so added up all of the tabulated votes, are provided to usually a statewide official, often a Secretary of State or a State Board of Elections, who will sign off on those final results and who will certify that those are the correct totals as reported by election officials at each stage of the process.

Leeper: Okay. With those basics covered, what are you seeing this year regarding election certification that strikes you as a potential issue?

Diaz: Election certification has become a hot-button political issue. What used to be a formal, almost symbolic process of finally declaring that the election was over has become a sort point where people who are dissatisfied with the way that elections are run, or maybe with the outcome of elections, are using the certification process as a platform to air their grievances and make wild claims about election conduct and really causing disruption delays and chaos and confusion around what used to be a pretty mundane kind of bureaucratic process.

In 2022, there were a couple of counties in Arizona and New Mexico where county officials voted not to certify their election results. They even admitted that they didn't have any evidence that anything had gone wrong in their county. They just had concerns about either other counties or the way that the election was run in general. Their secretaries of state and state supreme courts stepped in and required them to fulfill their legal responsibilities and make sure that the votes in those counties were included in the final totals.

What happens when an official who is legally responsible for certifying election results fails to do that or refuses to do that? They are functionally excluding all of the voters from their county from the final election results. So it's a kind of profoundly undemocratic act, and the resistance that we've seen to normal election certification processes has really been fueled by the same kind of misinformation and lack of clarity around election processes and election laws that animated a lot of the efforts to try and overturn the results of the 2020 election.

It comes down to, I think, a fundamental lack of information among the general public about what these post-election processes mean and at what point are we verifying that the election results are accurate. There's a lot of stages of the post-election process that either happen during the canvas or immediately afterwards, or sometimes right after certification, that we use to verify that election results are correct, especially when they're close. That's why we have recounts to make sure that the tabulation occurred correctly and accurately. That's why we have audits to make sure that the machines that we use to help tabulate votes are doing so accurately.

That's why we have legal proceedings and litigation and election contests so that when a candidate or a party or a member of the public thinks that something went wrong in the election process that the rules weren't followed, they can go to a court with rules of evidence and they can show all of the reasons why they think that the election wasn't conducted properly, and we can have an impartial arbiter, a judge, make those determinations based on the evidence. And the certification vote is just not the part of that post-election process where those checks and balances occur.

Leeper: You mentioned a few things about the aftermath of the election or the process. I'd like to dig into some of those now. We've all been there watching the news on election night and after, and it seems like some election results seem to come out within hours of polling places closing, and others can take days or weeks. What's going on there?

Diaz: It's really important to distinguish between media projections of election results and actual final certified results. There is no state in the country that has final results on election night. Media outlets, TV networks, newspapers, are able to make projections based on early returns based on the precincts that have reported results earlier in the process and based on complicated statistical models that they use to project who will ultimately be the victor once all the votes are counted and certified.

That's easier for media to do when elections are not particularly close. To take the presidential race, for example. If there's a state where the presidential election is not likely to be particularly close where one candidate might win by 25%, media will probably have an easier time projecting that race sooner on election night than, for example, in... to take 2020, Georgia and Pennsylvania and Wisconsin were all very, very close races. Media didn't make projections in those states until several days after election day, and it wasn't because those states were the only ones who weren't done counting.

It was just that those were so close that we needed to count every vote before anybody could make any predictions. But every state goes through the same post-election day process of counting every ballot, canvassing every precinct's results, and voting to certify at both the county and state level. And that always happens weeks after election day. We'll never have final election results in any state until well after election day is over because election officials are carrying out all of these processes to make sure that the final results are accurate.

Leeper: Do some kinds of ballots take longer than others to counter canvas? I'm thinking of mail voting ballots or provisional ballots.

Diaz: Yeah, absolutely. The process for verifying and processing mail ballots, in particular, is different from when somebody votes in person, whether they're voting early or on election day because there's extra steps, extra information that the election workers have to check to make sure, for example, that a voter hasn't voted already in that election and that the information on the voter's mail-in ballot envelope matches their voter registration and that they're a registered voter, and that process can take a little bit longer. That's one of the reasons we saw so many delays in 2020 because of the pandemic. The volume of mail ballots because of COVID was so much higher than it usually is.

The timing of counting and processing those ballots also varies from state to state. A state like Florida, where you and I are both from, starts processing those mail ballots much earlier in the election calendar than some other states do, and that's why Florida is able to report results, including the results of mail ballots, so much faster than some other states like Pennsylvania, where they're not allowed to start processing their mail ballots until election day itself. So because of the way that different state laws are structured, some states are able to get a head start on the processing of early and mail ballots. They don't start counting them until election day, but they can do some of the preliminary steps to verify them.

Leeper: How do we know when an election is finally certified? Who's in charge of that?

Diaz: That depends on which election we're talking about. If it is a municipal race or maybe a state legislative election where the whole legislative district is inside one county, it'll be the county's responsibility to certify those election results. But for statewide races, for federal races like Congress, or for maybe a state senate seat that stretches across multiple counties, it'll ultimately be up to the state to certify those election results. And again, who exactly is the certifying official varies from state to state. Usually, it will be the Secretary of State.

Sometimes, it's the governor. Sometimes, it's a State Election Board or a State Canvassing Board. For the presidential race in particular, because we don't directly vote for presidential and vice presidential candidates and we vote for electors who will represent us in the Electoral College, and there's a whole additional layer of certification that goes on where the Secretary of State and usually the governor will issue a certificate of ascertainment to the electors, identifying who the electors are that have been chosen so that when the Electoral College meets in December to officially cast its votes, we know who the proper electors are.

Leeper: You touched on this a bit earlier about how close elections affect media projections about who's winning, but how does that play with certification? What happens when an election is very close or when one party wants to challenge the results? Does that delay certification?

Diaz: It can, which is why states have these post-election timelines built in. That's why you never see a state certify official results on election night or even the next day because there's time built into the canvas and certification process for things like recounts, which are sometimes required if the initial tabulation is within a certain margin. If the top two candidates in a race are within 1%, a state might have a law that requires an automatic recount.

In that circumstance, if a candidate wants to dispute the election results because they think that one county didn't tabulate votes properly, or there were problems with machines, or there was a group of votes that weren't counted that should've been counted. Every state has its own election contest procedures, usually going through state courts where the candidates and their campaigns can make those arguments, and a judge can issue an order either requiring the counting of those ballots or not.

There's time built into the system to have all of those processes play out, but when it comes to the presidential race, there is a federal deadline where all of these disputes have to be resolved by December 11th. That's the very last day for states to certify their presidential electors. December 11th is more than a month after election day. So there's a lot of extra buffer time built in for states to make sure that they can do all of these processes to verify that the results are accurate and even build in a cushion for things like recounts and election contests.

Leeper: Earlier, you talked a bit about the difference between some states, like Florida and Pennsylvania. Is there any benefit for the electorate in getting election results out sooner, and can you go a little bit more into what states can or should be doing to process ballots and release election results sooner if there is that benefit?

Diaz: It really does go a long way towards building voter confidence in the election system when we get results of the election faster. We would always rather our elections be accurate than fast, but it would be nice if we could have both. The problem is that many election offices, especially county and local election offices, are working with really limited resources and really limited funding. They get some help from the federal government, but most election funding comes from states and state legislatures.

Over the last several decades, state governments across the country have been really woefully underfunding election offices and, in some instances, prohibiting election officials from accepting outside funding from grants, nonprofits, foundations, things like that to help make up some of the difference. So increasing funding for election officials is one, I think, really simple way to allow them to hire and train more staff so that they can count and process these ballots more quickly. We've mentioned that some states allow for the processing of mail and absentee ballots earlier in the process.

It's been pretty clear, especially over the last couple of elections, what a huge difference that makes in terms of a state's ability to get through these post-election processes on a faster timeline, but unfortunately, there's been some resistance from state legislatures to allow election officials to process mail ballots earlier. Election officials are dealing with a lot in that post-election window. Let them start earlier, you'll finish faster. And if you have more resources to hire more staff to reserve more space to get more tabulating machines, that's also going to speed up that process.

Leeper: Obviously, not everyone is on the same page about wanting this to be a smooth process. And I know in recent years we've seen a move for state officials to either refuse to certify elections, as you've talked about, or to complicate the certification process.

Georgia is the example that comes to mind where the State Election Board has made it easier to challenge results and possibly delay certification, most recently requiring the hand counting of ballots in an 11th-hour ruling just a few weeks ago. What does the law say about refusing to certify election results, and what actions is CLC taking to push back on those efforts?

Diaz: It has been, I think, a notable shift over the last couple of years to inject these kind of partisan disruptions into the post-election process. Fortunately, there are a lot of legal tools and responses from CLC and other organizations that we work with to make sure that every vote is counted and that election results, as certified, reflect the will of the voters. Under state and federal law across the country, election certification is mandatory. The officials who are charged by their state laws with certifying election results don't have the discretion to refuse to certify election results because they don't like the way the election turned out or they don't like the way the election was conducted.

That has been made extremely clear by state supreme courts, by statewide election officials, by good government groups like CLC. We recently published, in partnership with Protect Democracy, the Brennan Center for Justice and All Voting is Local, seven state-specific guides focusing on the guardrails that protect election certification in seven key states that we think are going to be drawing a lot of attention this election cycle. Those guides not only outline all of the legal reasons why certification is a necessary and non-discretionary part of the post-election process but also all the tools that statewide officials and voters have at their disposal to make sure that these officials perform their legal duty and certify election results.

This is not a particularly controversial issue, or at least it shouldn't be. You mentioned Georgia and these last-minute rules that the State Election Board has adopted. A bipartisan group of local election officials, the people who are actually responsible for carrying out elections in Georgia at the county level, opposed those rules because they would make election officials' jobs so much harder without adding any kind of security benefit or doing anything to improve the accuracy of election results. Georgia's Republican Secretary of State, Attorney General, and governor have all criticized the board for doing these things, in particular for trying to change these regulations so close to an election.

I think the most recent board meeting looking at changing some of these rules happened around 45 days before election day, which is crazy. Election officials have been preparing to conduct this election for months. They've trained their staffs. They've got their materials ready. Early voting has already started in a number of states. Ballots have been sent out to military and overseas voters from every state in the country. We're already very much in the general election right now, so it's way too late to be changing the rules that are going to govern how those votes will be counted. And if I could just make one quick point about the hand-counting too.

The push to hand-count ballots is something that we've seen pop up across the country over the last year, really pushed by people who don't seem to trust voting machines and the tabulators, the machine-assisted tabulation that we do pretty much everywhere across the country. But multiple scientific studies and the experience of thousands of election officials across the country have demonstrated to us that counting by hand is actually less accurate than machine tabulation, and it takes so much longer. One county in Texas tried to hand-count all of their ballots after the primaries earlier this spring. That's a county with about 8,000 voters. And they started counting at 7:30 AM and they didn't finish until 4:30 AM the next night, and that was for 8,000 ballots in a primary election.

It's really just not possible to do a full hand count with no machine assistance, and it certainly won't be any faster. So introducing a rule like that in a state like Georgia, that has 159 counties and more than 7 million registered voters, is just a recipe for delays and confusion and disruption to the post-election process. Fortunately, the Secretary of State and the Attorney General have made clear that despite these new rules from the State Election Board, the counties still have a mandatory duty to certify their election results by the deadlines under state law. CLC and our partners in Georgia and nationally are watching that situation very closely, much like others across the country, so that we can make sure that the post-election process runs as smoothly as possible and every eligible vote is counted.

Leeper: That is certainly a comfort. We talked in last week's episode about the Electoral Count Reform Act or the ECRA, which is the law that Congress passed in the wake of January 6th, 2021, to ensure that casting and counting of Electoral College votes in a presidential election goes smoothly. How does the ECRA relate to election certification?

Diaz: The ECRA mostly governs the process by which Congress counts the electoral votes and ultimately certifies the result of the presidential election, but Congress has to get those electoral votes from somewhere, and they come from the states. And so, the ECRA also sets a firm deadline of December 11th this year for each state to certify its presidential election results.

It also makes clear that the governor of each state is the certifying official responsible for certifying presidential election results unless a state, by law, designates another statewide official to perform that duty. But under the ECRA, the presidential election has to be conducted under state laws enacted prior to election day. So the ECRA prohibits a state legislature from coming in after election day and changing the rules.

The ECRA also sets up an expedited federal court process so that if, come December 11th, there is any dispute over who are the proper slate of electors for a given state, the candidates can go to a federal court and through an expedited process get an answer to that question and a final conclusive certification of the presidential election results before December 17th, which is the day that the Electoral College meets to cast its votes.

So the ECRA, in addition to modernizing the way that Congress counts electoral votes, puts some pretty robust guard rails on the state process for certifying presidential election results to make sure that we don't find ourselves in a situation where we've got two competing slates of electors from one state, and questions about the legitimacy, which is the right one.

Leeper: Jonathan, we've covered a lot of ground today. Are there any final thoughts you'd like to add?

Diaz: So I think most Americans have a pretty good sense of the voting process because most Americans have voted, but I think that most voters, even most pretty engaged voters, have relatively little understanding about what happens after that. What happens to your ballot after you drop it in the ballot box or send it in the mail? I think, as a country, we've learned a lot about those post-election processes and canvassing and certification, but it's something that's less familiar to a lot of people, and the best source for that kind of information is always going to be the election officials themselves, your state's Secretary of State, your county election official.

Those are the people who live and work in your community who are running your elections, and they know firsthand how this process works because they're the ones doing it. Folks should really lean on their local officials for information. When you see somebody post on social media or hear something on the news about the post-election process, if you don't know whether that's true or not, the best way to get good information about how the process works is to go directly to the source and to talk to your local election officials.

Most election offices have posted explainers or videos or have done a lot to try and educate voters about these post-election processes. The more that you know about that process, the more that you can help educate people in your life, in your community about what's really going on, and the more you can maybe put to rest some of the fears and the concerns that come when election results may take a couple of extra days because you know that it's only because election officials are working tirelessly behind the scenes to make sure that they're accurate.

Leeper: Jonathan, thank you for the work that you're doing on this front and thank you so much for being here to talk with us today.

Diaz: Thank you.

Leeper: The threats to election certification are, as Jonathan said, going to strike a lot of Americans as technical and opaque, and I sympathize with voters' frustration. If you grow up in a democracy, you expect to choose your leaders at the polls without partisan politicians trying to interfere in the process. But that's why it's all the more important that we all take the time to get familiar with post-election practices. If our elections are truly going to reflect the will of the voters, we have to be ready to identify and confront challenges that partisan actors impose on the process. So I want to give you, the listener, a special thanks for engaging with this topic.

Hopefully, we're equipping you with the information that you can bring to your local precincts, wherever that may be. Special thanks as well to Jonathan Diaz for joining us and sharing his expertise. You can find more background information on the topics discussed in our show notes, along with a full transcript of the episode. This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. CLC is a nonpartisan nonprofit organization that advances democracy through law at the federal, state, and local levels, fighting for every American's right to responsive government and fair opportunity to participate in and affect the democratic process. You can learn more about us and support our work at campaignlegal.org.

I'm your host, Simone Leeper. Thanks so much for listening. If you learn something today, we'd really appreciate it if you could leave us a review on your podcast platform of choice and hit subscribe to get updates as we release new episodes in the coming weeks. Leading the production for CLC are Casey Atkins, multimedia manager, and Matty Tate-Smith, senior communications manager for elections. This podcast was produced by Sam Eifling and Reaon Ford, edited and mixed by Luke Batiot. Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at  democracygroup.org.