Election Skeptics Target Voting Officials With Ads in Swing States — ProPublica

Earlier this month, subscribers to the Wisconsin Law Journal received an email with an urgent subject: “Upholding Election Integrity — A Call to Action for Attorneys.”

The letter began by talking about fairness and following the law in elections. But it then suggested that election officials do something that courts have found to be illegal for over a century: treat the certification of election results as an option, not an obligation.

The large logo at the top of the email gave the impression that it was an official correspondence from the respected legal newspaper, though smaller print said it was sent on behalf of a public relations company. The missive was an advertisement from a new group with deep ties to activists who have challenged the legitimacy of recent American elections.

The group, Follow the Law, has placed ads in Pennsylvania and Wisconsin news outlets serving attorneys, judges and election administrators — individuals who could be involved in election disputes. In Georgia, it ran ads supporting the State Election Board as its majority, backed by former President Donald Trump, passed a rule that experts warned could have allowed county board members to exclude enough Democratic votes to impact the presidential election. (A judge later struck down the rule as “illegal, unconstitutional and void.”)

In making its arguments about certification, Follow the Law has mischaracterized election rules and directed readers to a website providing an incomplete and inaccurate description of how certification works and what the laws and rules are in various states, election experts and state officials said.

“Anyone relying on that website is being deceived, and whoever is responsible for its content is being dishonest,” said Mike Hassinger, public information officer for Georgia’s secretary of state.

Certification is the mandatory administrative process that officials undertake after they finish counting and adjudicating ballots. Official results need to be certified by tight deadlines, so they can be aggregated and certified at the state and federal levels. Other procedures like lawsuits and recounts exist to check or challenge election outcomes, but those typically cannot commence until certification occurs. If officials fail to meet those deadlines or exclude a subset of votes, courts could order them to certify, as they have done in the past. But experts have warned that, in a worst-case scenario, the transition of power could be thrown into chaos.

“These ads make it seem as if there’s only one way for election officials to show that they’re on the ball, and that is to delay or refuse to certify an election. And just simply put, that is not their role,” said Sarah Gonski, an Arizona elections attorney and senior policy adviser for the Institute for Responsive Government, a think tank working on election issues. “What this is, is political propaganda that’s dressed up in a fancy legal costume.”

The activities of Follow the Law, which have not been previously reported, represent a broader push by those aligned with Trump to leverage the mechanics of elections to their advantage. The combination of those strategies, including recruiting poll workers and removing people from voting rolls, could matter in an election that might be determined by a small number of votes.

Since Trump lost the 2020 election, at least 35 election board members in various states, who have been overwhelmingly Republican, have unsuccessfully tried to refuse to certify election results before being compelled to certify by courts or being outvoted by Democratic members. Last week, a county supervisor in Arizona pleaded guilty to a misdemeanor for failing to perform election duties when she voted to delay certifying the 2022 election. And last month, the American Civil Liberties Union sued an election board member in Michigan after he said he might not certify the 2024 results. He ultimately signed an affidavit acknowledging his legal obligation to certify, and the ACLU dismissed its case. Experts have warned that more could refuse to certify the 2024 election if Trump loses.

Follow the Law bills itself as a “group of lawyers committed to ensuring elections are free, fair and represent the true votes of all American citizens.” It’s led by Melody Clarke, a longtime conservative activist with stints at Heritage Action, a conservative advocacy organization, and the Election Integrity Network, headed by a lawyer who helped Trump try to overturn the 2020 election results in Georgia.

This summer, Clarke left a leadership position at EIN to join the Election Transparency Initiative, a group headed by Ken Cuccinelli, a former Trump administration official. The two groups work together, according to Cuccinelli and EIN’s 2024 handbook.

The banner ads that appeared in Georgia and Wisconsin outlets disclosed they were paid for by the American Principles Project Foundation. ETI is a subsidiary of a related nonprofit, the American Principles Project. Financial reports show that packaging magnate Richard Uihlein has contributed millions of dollars to the American Principles Project this year through a political action committee. Uihlein has funneled his fortune into supporting far-right candidates and election deniers, as ProPublica has reported.

Cuccinelli, Clarke and a lawyer for Uihlein did not respond to requests for comment or detailed lists of questions. Cuccinelli previously defended to ProPublica the legality of election officials exercising their discretion in certifying results. “The proposed rule will protect the foundational, one person-one vote principle underpinning our democratic elections and guard against certification of inaccurate or erroneous results,” Cuccinelli wrote in a letter to Georgia’s State Election Board.

The most recent ads appear to be an extension of a monthslong effort that started in Georgia to expand the discretion of county election officials ahead of the November contest.

In August and September, Follow the Law bought ads as Georgia’s election board passed controversial rules, including one that empowered county election board members to not certify votes they found suspicious. As ProPublica has reported, the rule was secretly pushed by the EIN, where Clarke worked as deputy director.

Certification “is not a ministerial function,” Cuccinelli said at the election board’s August meeting. The law, he argued, “clearly implies that that board is intended and expected to use its judgment to determine, on very short time frames, what is the most proper outcome of the vote count.”

However, a state judge made clear in an October ruling the dangers of giving county board members the power to conduct investigations and decide which votes are valid. If board members, who are often political appointees, were “free to play investigator, prosecutor, jury, and judge” and refuse to certify election results, “Georgia voters would be silenced,” he wrote, finding that this would be unconstitutional. The case is on appeal and will be heard after the election.

Despite that ruling, and another from a different judge also finding both certification rules unconstitutional, Follow the Law’s website section for Georgia still asserts that a State Election Board rule “makes crystal clear” that county board members’ duty is “more than a simple ministerial task” without mentioning either ruling. The state Republican party has appealed the second ruling.

In a Telegram channel created by a Fulton County, Georgia, commissioner, someone shared what they called a “dream checklist” for election officials this week that contains extensive “suggestions” for how they should fulfill their statutory duties. The unsigned 15-page document, which bears the same three icons that appear on Follow the Law’s website, concludes, “Resolve all discrepancies prior to certification.”

On the same day the Georgia judge ruled that county board members can’t refuse to certify votes, Follow the Law began running ads in Pennsylvania and Wisconsin legal publications. The communications argued that certification is a discretionary step officials should take only after performing an investigation to ensure an election’s accuracy, largely continuing the line of argument that Cuccinelli pushed to Georgia’s election board and that the lawyers took before the judge. “Uphold your oath to only certify an accurate election,” said banner ads that ran in WisPolitics, a political news outlet. Another read: “No rubber stamps!” WisPolitics did not respond to requests for comment.

In Pennsylvania, the ad claimed that “simply put, the role of election officials is not ‘ministerial’” and that election officials are by law “required to ensure (and investigate if necessary) that elections are free from ‘fraud, deceit, or abuse’ and that the results are accurate prior to certification.”

Follow the Law has also directly contacted at least one county official in Eureka County, Nevada, pointing him to the group’s website, according to a letter obtained by ProPublica and Wisconsin Watch.

Follow the Law’s ads and website overstate officials’ roles beyond what statutes allow, state officials in Georgia, Arizona, Pennsylvania and Wisconsin said.

The group’s Wisconsin page reads: “Canvassers must first ensure that all votes are legally cast and can only certify results after verifying this.” But officials tasked with certifying elections are scorekeepers, not referees, said Edgar Lin, Wisconsin policy strategist and attorney for Protect Democracy, a nonprofit that works to protect the integrity of American elections. Lin and other experts said officials ensure the accuracy of an election’s basic arithmetic, for example, by checking that the number of ballots matches the number of voters, but they are not empowered to undertake deeper investigations.

Gonski said that in addition to overstating certifiers’ responsibilities, Follow the Law’s messaging underplays the protections that already exist. “Our election system is chock-full of checks and balances,” Gonski said. “Thousands of individuals have roles to play, and all of them seamlessly work together using well-established procedures to ensure a safe, accurate and secure election. No single individual has unchecked power over any piece of the process.”

Ads in the Wisconsin Law Journal and the Legal Intelligencer in Pennsylvania also presented the findings of a poll that Follow the Law said was conducted by Rasmussen Reports, a company whose credibility the ad emphasizes. But Rasmussen Reports did not conduct the poll. It was conducted by Scott Rasmussen, who founded the polling company but has not worked there in over a decade.

Both the company and pollster confirmed the misattribution but did not comment further. The Wisconsin Law Journal and ALM, which owns the Legal Intelligencer, declined to comment.

Sam Liebert, a former election clerk and the Wisconsin director for All Voting is Local, said he wants the state’s attorney general to issue an unequivocal directive reminding election officials of their legal duty to certify.

“Certifying elections is a mandatory, democratic duty of our election officials,” he said. “Each refusal to certify threatens to validate the broader election denier movement, while sowing disorder in our election administration processes.”