Certification and Non-Discretion: A Guide to Protecting the 2024 Election


In the wake of the January 6, 2021 attack on the U.S. Capitol, lawmakers and advocates focused significant attention towards reforming the Electoral Count Act—an 1887 law that governs the counting of Electoral College votes in Congress. After almost two years, Congress passed reforms to the Act that will make it more difficult for partisan actors to manipulate the outcome of future presidential elections. While this achievement is no doubt critical to prevent another insurrection, partisan attacks on election outcomes remain most likely to occur at the state and local level where the bulk of election administration takes place, long before Congress meets to ratify the Electoral College results. The 2022 election cycle previewed one such attack with alarming frequency: Rogue officials in several states refused to certify election results or attempted to otherwise interfere with certification—the statutory process by which election officials attest to the accuracy and completeness of election results.

While efforts to impede certification are not new, never before have they been deployed on such a large and coordinated scale. For this reason, little academic attention has been paid to the mechanics of state certification frameworks. This Article fills that gap to demonstrate why, and how, state certification frameworks can combat the ongoing threats against them. It begins by providing a detailed overview of how election certification works and how recent attacks on the process have targeted and disrupted certification using false claims of widespread election fraud. It then delves into the rich but often overlooked history of certification as a non-discretionary duty to demonstrate that those attacks flouted hundreds of years of well-established American legal history; recognizing that discretion created opportunities for crises and election fraud, early courts and legislatures purposefully shaped certification into a mandatory, non-discretionary duty. The Article concludes with a roadmap for election officials, candidates, and advocates to resolve future attacks on the certification process in eight key battleground states likely to play significant roles in the 2024 election cycle.


Stanford University Stanford, California
  • Lauren Miller & Will Wilder, Certification and Non-Discretion: A Guide to Protecting the 2024 Election, 35 Stan. L. & Pol'y Rev. 1 (2024).
Related Organization(s):