Local Election Administration and the 2022 Elections: Resilience, Risks, and Reform

Richard Briffault, Joseph P. Chamberlain Professor of Legislation | Columbia Law School

In this week’s “Constitutional Conversations” post, Richard Briffault observes that although in the 2022 midterm elections, local election administration “once again met the test” of counting millions of votes in free and fair elections, demonstrating resilience, there are reforms states could make that would prove “useful in strengthening our decentralized election system.”

Now that the last votes in the 2022 midterm elections have been counted and certified, and final results have been determined in all but a handful of races, it is safe to say that our highly decentralized, underfunded, and often-partisan structure of election administration once again met the test. Local elections offices processed more than one hundred and ten million votes in free and fair elections, notwithstanding relentless denials of the integrity of the electoral system and personal threats to election administrators. The principal lessons concerning our locally-run system of administering elections from 2022 can be summed up in these three “r”s – resilience, risk, and reform.

As in 2020, the beleaguered system of local election administration proved to be surprisingly resilient, despite the charges and disruptive tactics of conspiracy theorists, election deniers, and partisan and ideological interest groups with an evident commitment to discrediting our elections. But local election administration remains subject to risks, as the standard hiccups attendant on any system of handling tens of millions of votes get seized upon by conspiracy theorists as evidence of administrative misconduct and new challenges to the electoral system emerge.  We continue to need reforms to protect election administration and the integrity of electoral results from ongoing subversive threats.

Resilience: The challenges to local election administration in the aftermath of the 2020 election were manifest and multi-faceted. Since 2020, local election administrators across the country, but particularly in battleground states, have been subject to an unprecedented and ongoing barrage of complaints, threats, abuse, and personal attacks. In many states their troubles were compounded by legal changes. In many states, new laws prohibit elections offices from accepting financial support or volunteer assistance from non-profits; give partisan poll watchers new protections to oversee and potentially disrupt Election Day operations; and impose new limits, often backed with criminal or civil penalties, on the ability of local officials to help voters to vote. In the late summer of 2022, some groups sought to disrupt the ability of local election offices to get ready for the fall elections by inundating them with carbon-copy demands for documentation of the voting record from 2020, demands comparable to “a denial of service attack.” In other states, litigation limited administrative authority or blocked the adoption of guidelines intended to clarify and aid in the implementation of new state laws. Unsurprisingly, since 2020 large numbers of local administrations and poll workers have quit, retired, or in some cases were forced out of office by local activists. For example, by one count, in Nevada, ten of the seventeen chief county election administrators will have been replaced between 2020 and 2023.

Yet, in the end, across the country, Election Day went off with little more than the usual Election Day glitches. In the months before the election, local election administrators increased their public information programs and social media profiles, learned to react quickly to problems and false claims, got better at answering voter claims questions at improving the transparency of the electoral process. Poll workers got better at answering voters questions and de-escalating conflicts. In the county with the most serious Election Day problem – Maricopa County, Arizona – election administrators figured out and resolved by early afternoon the problems besetting printers in multiple vote centers, while providing voters with alternative means of casting their ballots. No voters were unable to vote. Similarly, in Luzerne County, Pennsylvania when polling places temporarily ran out of paper, voting hours were extended. In Philadelphia, local election officials took the initiative reaching out to voters who cast mail-in ballots to enable them to correct technical errors or omissions that might have led to the ballots being rejected. They also strengthened their ties with local law enforcement to provide better security for polling places and tabulation centers. Overall, preliminary estimates are that turnout was only slightly down from the 2018 midterm record high, with few incidents to mar the Day and few challenges to the results.

Risks: Yet, significant risks remain. The fallout from 2020 persists, with a high level of election distrust in many areas. There is a hair-trigger response to minor election problems, with the occasional malfunctions in election machinery leading to charges of intentional misconduct and vote suppression. Groundless suspicions about electronic tabulators have led to calls for hand recount audits and hand tabulations, even though those are more far prone to error than electronic counts. More troubling has been the takeover of some local elections offices by activists willing to accept or propagate groundless theories and willing to refuse to accept election results. 

During the past election cycle, election deniers mounted serious candidacies for secretary of state in a half-dozen key battleground states. In the end, all lost – although election deniers did win election, or were appointed to office, in a handful of other states. Having election deniers at the top of a state’s election administrative hierarchy would have been a disaster, but misconduct by rogue local election boards indicate that risks to the system remain. On several occasions this year, county boards – in Otero County, New Mexico after the state’s June primary; in Cochise County and Mohave County, Arizona, and Luzerne County, Pennsylvania – refused to certify unchallenged election results, either relying on unsubstantiated theories of problems with the election, or, for the Arizona counties, as a protest about alleged election issue elsewhere in the state. Each county, following public pressure, threatened litigation, or actual litigation eventually backed down, but the precedent of rogue counties blocking the certification of election results is a troubling one. To be sure, misconduct at the local level is far less threatening to democracy than an election denier as state secretary of state.  But given the considerable decentralization of election administration, having local boards run by – or subject to pressure from -- local parties or interest groups that are not committed to electoral integrity is a serious problem.

Reform: The challenges that local election administration face are many, but the events of this past election cycle highlight the need for action in two areas in particular – protection of election workers from threats, and precluding local boards from refusing to certify election results. For the first, states should enact laws that impose penalties for pressuring, coercing, or intimidating election workers in any manner that would interfere with their ability to carry out their responsibilities. For the second, states should make it clear, where it is not already clear, that election boards have a nondiscretionary duty to certify election results after the votes have been counted and any challenges to the votes cast and tabulated have been resolved. Michigan’s just-adopted “Proposal #2” amends the state’s constitution to provide that the outcome of an election “shall be determined solely by the vote of electors casting ballots in the election” and that ‘[i]t shall be the ministerial, clerical, nondiscretionary duty of a board of canvassers and of each individual member thereof, to certify election results based solely” on the election returns. This could be a useful model for other states to prevent unjustified refusals to certify results. Certainly, other reforms would be useful in strengthening our decentralized election system. But these two would be important first steps.