by Doug Bock Clark
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A week and a half after last November’s vote, members of the Board of Elections in Surry County, North Carolina, gathered in a windowless room to certify the results. It was supposed to be a routine task, marking the end of a controversial season during which election deniers harassed and retaliated against the county’s elections director. Not long into the meeting, however, a staffer distributed a letter from two board members stating that they were refusing to certify.
According to the letter, the two members had decided — “with regard for the sacred blood shed of both my Redeemer and His servants” and “past Patriots who made the ultimate sacrifice”— that they “must not call these election results credible and bow to the perversion of truth.”
In their view, a federal judge who’d struck down a North Carolina voter ID law for discriminating against minorities had transformed the state’s election laws into “a grotesque and perverse sham.” Tim DeHaan, one of the two board members who signed the letter, explained at the meeting, “We feel the election was held according to the law that we have, but that the law is not right.”
This argument failed to win over the three Democratic board members, according to a recording of the meeting. DeHaan eventually agreed to join the three on a technicality, and the board certified the election with a 4-1 vote. Jerry Forestieri, the Republican board secretary who also signed the letter, held out.
DeHaan and Forestieri declined to comment and did not respond to written questions.
Before 2020, local election officials seldom voted against certifying results. But in 2022, conservative officials in North Carolina, Arizona, Nevada, Pennsylvania and New Mexico refused to do so. Some admitted to refusing to certify for political reasons. In all the 2022 cases, the election results eventually were certified, sometimes under a court order.
Election law experts say that these disruptions reveal a weakness in the American electoral system, which relies on thousands of local officials to certify the totals in their counties and municipalities before their results can be aggregated and tallied for state and federal elections.
Local elections officials “could create chaos” all the way up the chain by refusing to certify, said Alice Clapman, a senior counsel in election law at the Brennan Center for Justice. “And in that chaos you have more room for political interference.” Five legal experts described to ProPublica scenarios in which legislatures, courts, secretaries of state or governors could use a failure to certify at the local level to exert partisan influence.
Clapman said that even if refusals to certify don’t affect election outcomes, they can violate state laws and can amplify and validate harmful misinformation that feeds election denialism because of the imprimatur of the officials’ offices.
A ProPublica review of 10 instances of local officials refusing to certify 2022 results in four states found that, for the majority of them, the state election authority did not ultimately pursue official consequences. Two of them have been referred for criminal prosecution, but the attorney general in that state would not comment on whether there is an open investigation. And two — the ones in Surry County — are facing potential removal from their posts by the State Board of Elections.
“There needs to be some sanction when there is lawlessness,” said Richard L. Hasen, an election law professor at the University of California, Los Angeles, and director of the Safeguarding Democracy Project. “If you allow these things to take place without any sanction, then you invite more serious rule-breaking in the future.”
After the DeHaan and Forestieri letter, Bob Hall, the former executive director of the watchdog group Democracy North Carolina, submitted a complaint to the State Board of Elections to start a disciplinary process, as permitted by North Carolina law if board members commit an alleged breach of duty. An attorney for Hall argued in a subsequent document that “if left unchecked, Forestieri and DeHaan may be the first of many board members throughout the state and across the political spectrum who cannot be trusted to faithfully certify election results.”
That led the state board to summon Forestieri and DeHaan to its headquarters in the capital, a roughly three-hour drive from their rural home, for a hearing last month.
At the beginning of the proceeding, DeHaan argued that the hearing itself was “illegal” because it was supposed to be held in the county the board members are from. The Democratic board chairman agreed and voted with a Republican colleague to move the hearing to Surry County. A date has not yet been set. “The relocation to Surry County shows that this isn’t normal,” said Christopher A. Cooper, a professor specializing in North Carolina politics at Western Carolina University. “There isn’t a long history of examples of this sort of thing to lean on.”
Experts point out that efforts to hold local officials accountable for not certifying their elections have been of a patchwork nature across the nation. “I think states are trying to figure out what to do and are approaching it differently, like a prosecutor making a judgment on a case-by-case basis whether to bring a case or not,” said Derek T. Muller, a professor at the University of Iowa College of Law who has researched legal options for ensuring that local officials certify elections. “States need to figure out how to bring these cases in a fair, consistent and lawful way.”
In Cochise County, a rural part of Arizona on the Mexican border, a pair of county supervisors refused to certify their November 2022 results despite state officials warning them multiple times that doing so would be illegal under state law. In early December, a court ordered them to certify, but one supervisor, Tom Crosby, still skipped the vote.
The next day, the state elections director, at the urging of a former Republican Arizona attorney general, sent a letter to the state attorney general referring the supervisors for criminal investigation, arguing that they had committed “potential violations of Arizona law.” The letter concluded, “This blatant act of defying Arizona’s election laws risks establishing a dangerous precedent that we must discourage” by taking “all necessary action to hold these public officers accountable.” A spokesperson for the Arizona Attorney General’s Office wrote that they “cannot confirm or deny any potential investigation” that may have resulted from the letter.
In January, a group of Cochise County voters launched a petition to recall Crosby. As of late February, it had approximately a quarter of the 6,000 signatures it would need by early May to result in a new election, according to Eric Suchodolski, the chairperson of a committee leading the effort. “It’s our best recourse as citizens,” he said. “I didn’t think the authorities would ultimately do something, and even if they did, it can take awhile.”
In response to a request for comment, Crosby said: “If I get into defending myself it will never end. I’ve already answered all this stuff.” In the past, he has disputed the validity of the certification of the county’s voting machines, despite assurances from the state.
While in North Carolina and Arizona there are ongoing efforts to hold accountable local officials who didn’t certify their elections, Nevada and New Mexico decided not to pursue such efforts.
In Nevada, one Republican commissioner in Washoe County and another in Nye County refused to certify, though in both cases the other four commissioners outvoted them. A spokesperson for the Nevada Secretary of State’s Office said that “our office is not aware of any legal consequences for that action” by the commissioners.
In Otero County, New Mexico, the county’s three commissioners initially voted unanimously against certifying the June 2022 primary elections. This followed months of disputes about election security driven by conservative activists who also fueled protests in Surry County.
New Mexico law requires commissioners to approve election results unless they can point to specific problems. The Otero commissioners only raised debunked concerns about hacked voting machines, with one of the officials, Couy Griffin, referencing his “gut feeling.” The New Mexico secretary of state subsequently asked the state’s Supreme Court to step in, and it ordered the commissioners to certify. The secretary of state also sent a letter to the state’s attorney general notifying him of “multiple unlawful actions by the Otero County Commission” and asked for “a prompt investigation.” Faced with this, two of the commissioners switched their votes, certifying the election. Griffin did not. (In Sandoval County, on the other side of the state, one commissioner voted against certification, though the four others on the panel outvoted him.)
Griffin did not respond to a request for comment.
The New Mexico Secretary of State’s Office decided not to further pursue “punitive action” against the officials who did not certify, according to Alex Curtas, its communications director, because “our concern was getting the election certified, so that’s where that ended.”
“Once it became clear that we had that state Supreme Court precedent and this wasn’t really a widespread thing, just two hard-right commissioners, we felt comfortable that this wouldn’t be a major problem in the general election,” he said, “and in our perspective it became a bit of a moot point.”
Griffin eventually was subsequently removed from public office and banned from holding it by a judge’s order as part of sentencing for participating in the Jan. 6 insurrection.
Part of the challenge for states seeking to crack down on officials who refuse to certify elections is that many of the laws that provide recourse were written more than a century ago. “We’re dealing with modern issues with very old statutes,” said Quinn Yeargain, a professor at the Widener University Commonwealth Law School in Pennsylvania.
Some states recently enacted new regulations. Last year, Colorado legislators passed the Election Security Act, which mandates that the secretary of state certify a county’s results if it misses the deadline to do so. In Michigan, voters passed a wide-ranging voter-protection ballot proposal in November that made certification a “ministerial, clerical, nondiscretionary duty.” This clause was in response to conservative members of a county canvassing board for Detroit refusing to certify the 2020 presidential election for a few hours, momentarily threatening to throw its certification into chaos.
Election legal experts note that holding local election officials accountable for voting against certifying elections will continue to be complicated. Muller, the Iowa law professor, favors what he calls the “least invasive process,” one that would allow courts to replace local officials who refuse to certify elections with other officials who would do their duty.
But he said any process that results in an official being forcibly replaced is likely to carry political risks, including the potential to abuse the system to disempower political opponents.
“We haven’t seen fallout from local election officials being removed yet, because these processes are just beginning,” Muller said. “But we could see that soon.”