ELEC-002 — Model State Election Certification and Automatic Substitution Act

A MODEL STATE BILL

To define election certification as a ministerial duty, provide automatic substitution and expedited judicial enforcement when a certifying official refuses or fails to act, preserve lawful investigation and contest procedures, and establish consequences for knowing nonperformance or falsification.

SECTION 1. SHORT TITLE.

This Act may be cited as the “Election Certification and Automatic Substitution Act.”

SEC. 2. DEFINITIONS.

In this Act:

1. Certification means the final official act by which a canvassing or certification authority confirms and transmits the result produced by the tabulation, canvass, recount, audit, and adjudicative procedures prescribed by law.
2. Certification authority means any state, county, municipal, district, or other officer, board, commission, or body assigned by law to canvass, certify, attest, approve, or transmit an election result.
3. Specific certification defect means an identifiable arithmetic, documentary, procedural, or statutory defect that—
4. appears in the official canvass or certification record;
5. falls within the express authority of the certification authority to correct; and
6. is capable of correction without adjudicating an election contest, investigating generalized allegations, or revisiting a matter assigned by law to another official or tribunal.
7. Substitute certifier means the officer, court, or body designated by section 6 to perform a certification duty upon refusal, deadlock, incapacity, disqualification, or failure to act.

SEC. 3. CERTIFICATION AS A MINISTERIAL DUTY.

After completion of the counting, tabulation, reconciliation, audit, recount, and adjudicative procedures required by law, a certification authority shall certify the resulting lawful totals by the statutory deadline.

Certification is ministerial and does not confer authority to—

1. investigate generalized allegations of fraud or misconduct;
2. reconsider ballot-validity questions assigned to another official or tribunal;
3. impose conditions not authorized by statute;
4. withhold certification because of disagreement with election law, policy, procedure, or result;
5. demand an audit, recount, investigation, or prosecution not otherwise authorized by law; or
6. alter or delay a result for the purpose of favoring or disadvantaging a candidate, party, ballot measure, or electoral outcome.

SEC. 4. LIMITED IDENTIFICATION OF DEFECTS.

A certification authority may temporarily defer certification only upon a written finding identifying a specific certification defect.

The written finding shall state—

1. the precise defect;
2. the statutory authority permitting the certification authority to address it;
3. the records supporting the finding;
4. the corrective action required; and
5. the time by which correction must occur.

A deferral under this section may not exceed 48 hours or the remaining time before the statutory deadline, whichever is shorter, unless a court orders otherwise.

Generalized suspicion, personal belief, unsupported allegation, or a matter committed to an election contest, recount, law-enforcement investigation, or other separate process is not a specific certification defect.

SEC. 5. DUTY TO REFER WITHOUT WITHHOLDING CERTIFICATION.

A certification authority that possesses substantial and credible information concerning fraud, crime, or material irregularity outside its certification authority shall refer the information promptly to the appropriate election official, prosecutor, law-enforcement agency, or court.

Unless a specific certification defect exists under section 4, such a referral does not suspend or excuse certification.

SEC. 6. AUTOMATIC SUBSTITUTION.

If a certification authority—

1. refuses to certify;
2. fails to obtain the vote required for certification;
3. does not act by the statutory deadline;
4. is unable to act because of incapacity, vacancy, disqualification, or loss of quorum; or
5. exceeds the maximum deferral period under section 4,

the certification duty transfers automatically and by operation of law to the substitute certifier.

Each state adopting this Act shall designate by statute a substitute sequence appropriate to its governmental structure. The sequence should ordinarily include—

1. the chief state election official or a deputy not involved in the underlying dispute;
2. a designated state canvassing authority; and
3. a court of competent jurisdiction authorized to enter the certification directly if no executive substitute acts promptly.

The transfer of authority does not require removal of the original official from office and does not depend upon a prior finding of misconduct.

SEC. 7. EXPEDITED JUDICIAL ENFORCEMENT.

The chief state election official, attorney general, affected local election authority, candidate, or voter residing in the affected jurisdiction may seek mandamus, declaratory relief, or an injunction to enforce this Act.

The court shall—

1. exercise original or specially assigned expedited jurisdiction;
2. hold a hearing as soon as practicable and ordinarily within 24 hours;
3. decide the matter before any downstream statutory deadline where reasonably possible;
4. compel performance of a ministerial duty;
5. authorize or confirm automatic substitution; and
6. preserve all downstream certification, recount, contest, elector, ballot-access, and transition deadlines.

A court may enter the certification directly where necessary to prevent disenfranchisement or failure of the election process.

SEC. 8. NO EFFECT ON LAWFUL RECOUNTS OR ELECTION CONTESTS.

Certification does not extinguish a recount, election contest, judicial challenge, criminal investigation, or other post-certification remedy authorized by law.

A later lawful determination may amend or supersede the certification as provided by state law.

SEC. 9. REMOVAL FROM THE CERTIFICATION MATTER.

A person who refuses or fails to perform a certification duty without lawful basis may be removed immediately from further participation in that certification matter by the substitute certifier or a court.

Removal from the matter does not itself constitute removal from office and does not preclude separate disciplinary, civil, or criminal proceedings.

SEC. 10. CIVIL AND ADMINISTRATIVE CONSEQUENCES.

A certification official who knowingly refuses, delays, conditions, or obstructs certification without lawful basis may be subject to—

1. a civil penalty;
2. reimbursement of reasonable public costs caused by the refusal or delay;
3. disqualification from serving on a canvassing or certification authority for a defined period;
4. removal, suspension, censure, or other discipline authorized by state law; and
5. attorney’s fees and costs awarded to a prevailing governmental plaintiff.

No public funds shall reimburse a personal civil penalty imposed for a knowing violation.

SEC. 11. CRIMINAL OFFENSES.

A person commits a misdemeanor if, while serving as a certification official, the person knowingly and without lawful basis refuses or fails to perform a mandatory certification duty after written notice of the duty and a reasonable opportunity to comply.

A person commits a felony if the person knowingly—

1. falsifies, alters, destroys, conceals, or manufactures a certification record;
2. certifies a result known to be materially false;
3. accepts or solicits a benefit in exchange for certification or noncertification;
4. obstructs certification for the purpose of changing or preventing a lawful electoral outcome; or
5. conspires with another person to commit conduct described in this section.

Penalty levels shall be calibrated by each adopting state consistently with comparable public-corruption, records, and election offenses.

SEC. 12. ANTI-COERCION AND ANTI-RETALIATION.

No person may threaten, intimidate, coerce, bribe, or retaliate against a certification official for performing, attempting to perform, or refusing to violate a duty under this Act.

Nothing in this section narrows any more protective state or federal law.

SEC. 13. PUBLIC RECORD AND TRANSPARENCY.

All votes, written defect findings, referrals, substitution notices, judicial filings, and final certification documents under this Act are public records, subject only to lawful protections for ballots, voter information, investigative material, privilege, and security-sensitive information.

SEC. 14. UNIFORM APPLICATION.

This Act applies without regard to the identity, party, affiliation, office, candidate, ballot measure, or anticipated outcome involved.

SEC. 15. SEVERABILITY.

If any provision or application of this Act is held invalid, the remainder shall not be affected.

Budgetary Impact Statement

Administrative workload is possible; no new appropriation is specified.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Drafting Notes

• The model separates certification from investigation and election-contest adjudication.
• Automatic substitution prevents a single official, board minority, or deadlocked body from becoming an electoral veto point.
• The proposal preserves lawful correction of specific defects while rejecting generalized suspicion as a basis for noncertification.
• The standing provision should be conformed to each state’s constitutional rules governing taxpayer, voter, candidate, and governmental standing.
• States should adapt the substitute sequence, deadlines, and penalties to existing offices and court structures.
• A federal minimum rule may separately be considered for elections containing a federal office, but this model is designed for state adoption.

Source Notes

• Source review for federal-election interactions should include the Electoral Count Reform Act amendments to 3 U.S.C. § 5, 3 U.S.C. § 12, and 3 U.S.C. § 15, plus each adopting state's election-certification statutes.
• The further internal review should prioritize primary court orders or official state records for Wayne County, Otero County, Cochise County, and Fulton County before publication-ready reliance.