Elections are conducted by county clerks in each county and “certified” by a County Board of Canvassers. The members of the County Board of Canvassers are the county commissioners or county councilmembers elected by county residents. The Lt. Governor certifies the statewide election results based upon certification of the election by individual counties. Election results are not “final” until the election is certified by each county. The analysis performed by the County Board of Canvassers in each county is the only analysis performed by an independent 3rd party who is not involved in conducting the election prior to certification. What level of investigation of the election data do you think the Board of Canvassers is legally required to perform before they vote to “certify” an election in Utah? According to Bill Lee, who is a former Utah County Commissioner, election certification is nothing more than a “rubber stamp”;
“If the role of the Board of Canvassers is just to rubber stamp and to get a summary, then is that really what we’re looking for? …. In this issue and at this time, there is only one vote that we can cast and it’s “yes”. That’s it. There’s no other options. Because if we vote “no”, they certify [the election] another route anyway. …… Why are we going through [certifying the election]? We want our elected officials to be part of a check and balance and we kind of look at that the Board of Canvassers as part of that check and balance. …… but is it really functioning as a check and balance if that’s the vote that we get is that get to vote yes and that’s it……”1
We rely upon many kinds of certifications in our everyday lives to confirm that we are safe, make the correct purchase decision or hire the right person or company for the job. We take for granted that a “certification” has meaning and is valid. We assume that the group giving the certification has the expertise and access to all the data necessary to confirm that the process, product, or person being certified meets minimum skill, performance, or quality specifications. What if the mechanic that was servicing the airplane that you were about to board wasn’t certified to work on that particular model of aircraft? What if the pilot wasn’t certified to fly the plane? Would you board the plane? Would you trust a doctor that wasn’t board certified?
Should certification of our elections in Utah be to a lower standard than the certifications we rely upon in our everyday lives? The recent collapse of FTX and current bank crises are examples of failed certification processes. The bankruptcies of AIG, Lehman Brothers, Bear Sterns and Merrill Lynch during the 2008/2009 mortgage crises are examples of failed internal certification processes. The rapid financial collapse of Enron and other firms in 2002 lead to passing of the Sarbanes-Oxley Act of 2002 (SOX) which fixed the process used to certify financial statements of publicly traded companies2. The success of SOX can be judged by “…the absence of any financial and accounting scandals like those which spurred the introduction of SOX (e.g. Enron) throughout the 20 years since its inception.”3 We are seeking to introduce and pass legislation that adapts SOX to Utah’s election certification process.
There are 29 counties in Utah and 3,142 counties in the 50 States. Every election certification in every county in the United States is performed to the same level of diligence as described by Mr. Lee (i.e. a Rubber Stamp). For the sake of efficiency and convenience, we have automated the casting and processing of ballots. How we certify elections has not kept up with the technology, we use to conduct our elections. No individual person reading this article has the expertise needed to perform a valid certification of the election results in Utah’s smallest county, let alone certify the election results of Salt Lake County (the largest county by population in Utah). We have put county commissioners and councilmembers across the state of Utah in an impossible position, just as we have in every county in the United States. We are asking them to certify election results when they don’t have the necessary human resource or the data to perform a valid certification.
Election Certification Matters is a citizens group that is drafting new legislation for the 2024 legislative session that will give the Board of Canvassers in each county access to the Election Data Experts, as well as access to all the data necessary to perform a valid certification. The legislation will also give registered voters access to the same information so they can independently confirm the findings of the election experts.
Since the results of the 2022 general election was announced, ECM has been reaching out to, and meeting with Board of Canvass members throughout the state. It is our intent to have met with a commissioner or county council member from each of Utah’s 29 counties, in addition to meeting with many of the county clerks by the end of June 2023. The majority of the clerks and Board of Canvass members that we have met with thus far recognize the need for a robust and valid election certification process and have provided valuable feedback and suggestions as we begin drafting this new legislation.
Election Certification Matters will also be meeting with as many of our State Senators and House of Representative members that will accept our meeting requests, to gather their opinions, suggestions and support as we draft and submit our election certification Bill. We believe that by approaching this issue in a collaborative problem-solving manner, that we will have the best chance of success at submitting and passing meaningful election certification law, and that by doing so, we will truly cause Utah to be the Gold Standard for other states to emulate.