Why We Need to Take the Partisanship Out of Certifying Elections

This op-ed by ERN Executive Director Kevin Johnson originally appeared in GOVERNING. Photo by Leon Seibert on Unsplash.

It may be hard to remember now, but Jan. 6, 2021, wasn’t the first time the 2020 presidential election nearly went off the rails. Several swing states had already seen organized efforts to seriously challenge results, nowhere more dangerously than in Michigan, where party representatives tried to weaponize the results certification process to throw the state’s vote into turmoil.

Now, Michigan voters have a chance to fix the source of the problem and prevent further partisan interference in election results. Other states should do likewise.

Proposal 2, a constitutional amendment initiative before Michigan voters this fall, calls for several changes to the state’s elections, including adding early voting, facilitating voting by mail and allowing a voter without ID to cast a ballot after signing an affidavit. Arguably, however, the most important change lies in two provisions that clarify the certification of results. The amendment would confirm that the state and county canvass boards have no choice but to certify results as provided from election officials. And the state Legislature would be prevented from playing any role in certification — cutting off a dangerous notion heavy with conflict of interest that some have argued for in Michigan and other states.

These changes would fix a problem that in theory we shouldn’t have. Michigan’s system for certifying who wins elections is based on faith in bipartisanship in election administration — the idea that elections will work best when the two largest parties are deeply and equally involved. In accordance with this belief, the state’s constitution establishes a four-person state Board of Canvassers made up of two representatives from each party. They vote on a range of key political issues in the state, including certification of state results. Similar two-by-two partisan pairs make up the canvass boards of all 83 Michigan counties.

Following presidential voting in 2020, the two Republican members of the canvass board for Wayne County, the state’s largest, refused to certify the results based on the totals reported from the county’s precincts. The board members were responding to a concerted campaign by supporters of then-President Donald Trump to raise unfounded fears about voter fraud in the county. After the board members backed down, the problem shifted to the state level, where one of the Republicans on the state Board of Canvassers abstained from certifying Joe Biden’s victory, further undermining trust in the outcome.

In the months after the election, Republican party committees in many Michigan counties changed their nominees for county canvass board positions, replacing people who’d certified losses for the party with individuals known for fervent belief that the 2020 election was stolen. Partisan weaponizing of certification spread, including to the Otero County Commission in New Mexico and three counties in Pennsylvania.

These developments reflect a new reality making election administration that is dependent on bipartisan cooperation less and less sustainable. The two parties, and their voters, hate the other side too deeply for a system to work that relies on partisans doing the right thing.

What do we do instead? Here learning from other democracies can help.

A recent analysis of 12 peer democracies by the Election Reformers Network found important differences from U.S. practice. First, “certification of results” does not exist in any of these countries’ election law; there is no separate phase where a board or set of individuals distinct from the officials who’ve managed the election intervene to confirm the total. Second, the role of the parties is to observe, via poll watchers stationed throughout the process to monitor whether election officials are following the law; it is not to have party representatives actually declare winners. Lastly, challenges to results are heard in courts, not by boards that lack judicial capability. In sum: elections run by technocrats kept in check through courts.

Proposal 2 essentially moves Michigan toward this international norm, at least as regards state-level results. Existing law already establishes the right of candidates and parties to observe all processes and to challenge results in court. The amendment reinforces that judicial path as the sole avenue for election disputes by removing all discretion over results from the party representatives on the state canvassing board.

This flaw that Michigan voters can fix is widespread across U.S. states. The Election Reformers Network analysis, released in September, found that 39 states give party-appointed boards or partisan-elected officials exclusive authority over certification at the state level. And every state except Hawaii gives the parties some role in the process. Laws in many of these states are sufficiently ambiguous to allow hyper-partisans to argue they have the right to refuse to certify a result they don’t like. We saw on Jan. 6 where that can lead.

Based on current polling, Proposal 2 seems likely to pass. That would be an achievement akin to the expected final approval of the Electoral Count Reform Act in Congress. That bill likewise removes ambiguities in existing law and takes away any basis to argue that self-interested partisans have discretion over results.

For decades, we got by with rules giving partisans a role in running elections. But in today’s hyper-partisan climate, those rules increasingly undermine fair elections and voter trust. Just as our system of partisan chief election officials has opened the door this year to election deniers, giving partisans a key role in certification likewise invites danger. With elections today facing so many overlapping threats, states should act to cross this one off the list.