Edgar Lin on State Law and Certifying 2024 Election Results

Frederica Freyberg:
Certify election results or face legal consequences. That’s the message from a group of nonpartisan voter advocacy groups to election clerks in Wisconsin and six other battleground states. The groups are detailing state-specific election laws, including how any clerk choosing not to certify results could be prosecuted. They say since 2020, more than 30 local election officials across the country have tried or threatened to refuse to certify results. None of them in Wisconsin. But the groups are trying to get out ahead of any problems with rogue clerks following the 2024 presidential election. Protect Democracy is among the groups releasing the rules guidance. Its Wisconsin lead for policy and litigation on election subversion is Edgar Lin. So what makes you and others believe that there are election clerks out there that might refuse to certify results?

Edgar Lin:
Yeah, that’s an excellent question. And to answer it, I like to just give a little context if you don’t mind, and talk about two terms: canvasing and certification. You are a voter and after you cast your ballot, there’s a robust process to make sure every valid vote is verified and tabulated. That process is called the canvass. Certification ends the canvass. The role of certification is not about verifying the final count, but simply to kind of sign off on the verification process that’s already been performed. So if I may use a sports analogy, you can think of the certifying election official as a scorekeeper in a basketball game. A scorekeeper’s sole job is to make sure that the number of the points for each team add up correctly so we know who the winner is, right? It’s the referee and not the scorekeeper who is responsible for enforcing the rules of the game. And at the end of the game, the scorekeeper doesn’t get to go back and say, “I don’t think X, Y, and Z shots should have counted because I don’t believe the shooter — I believe the shooter traveled” or something like that. It’s just not the scorekeeper’s job. So to your question of why would a clerk refuse to certify? Certification used to be a pretty quiet, mundane part of the election process. People don’t pay attention to it. Things started to change in 2020 when we saw a rise in election-related conspiracy theories and accusations, baseless accusations of fraud. So to answer your question, since then a small number of officials motivated by partisanship or conspiracy beliefs have targeted the certification or the sign-off process as a place to disrupt the election when they don’t like the results. So I’ll just emphasize that this has happened a few dozen times, as you mentioned earlier in various states in the last four years. But the vast majority of election officials across the country and here in Wisconsin have been committed to performing their jobs, doing their jobs, certifying the election results. And to date, all these attempts have failed. Courts have promptly ruled against these efforts as they violate the law just because refusing to certify isn’t legal.

Frederica Freyberg:
So even in Wisconsin, where Republican false electors’ scheme played out, as you say, no clerks have refused to certify results here. And still you see the need to remind Wisconsin clerks of this.

Edgar Lin:
I do. I think part of it is just also a public education. There might be folks who are not aware of this, but it’s very clear both state and federal law. Wisconsin law says certification is mandatory. It’s a ministerial duty. In other words, scorekeepers or scorekeepers and referees or referees. Our state law and legal precedent are clear. Election officials have a duty to follow the law. So but I do think the more education we can give, the better.

Frederica Freyberg:
Are there any legal reasons why a clerk could not certify results?

Edgar Lin:
No. They are required to certify results.

Frederica Freyberg:
What happens to the process if any, you know, so-called rogue clerk were to not certify?

Edgar Lin:
Yeah. It would be met with swift legal action. But let me start with this. As you mentioned, Wisconsin has not had anybody attempt to not certify or refuse to certify since 2020, unlike other states. We just had a really smooth primary. Our local election officials are doing their jobs, regularly fulfilling their roles as stewards to our democracy. But if a county official refused to certify, either in bad faith because of partisanship or baseless claims of fraud, or because they genuinely misunderstand their legal duties, say at the county level, state actors like the attorney general or the Wisconsin Election Commission, and even voters can bring legal actions to compel them or to make them do that job. It’s called a mandamus action. The attorney general or local district attorneys may also prosecute bad actors for election fraud by election officials. Again, attempts in other states have all failed so far, as I mentioned earlier. And that’s because our courts operate on law and facts and not on conspiracies and conjecture.

Frederica Freyberg:
All right. Well, thank you for the education on this. Edgar Lin, thanks so much.

Edgar Lin:
Thank you.