Johnson is the executive director of Network of electoral reformersa national nonpartisan organization that advocates for common sense reforms to protect elections from polarization.

For a democracy to work, one simple, central fact must be clear to all: who won? There is no disagreement about the winner of the Super Bowl or the Olympic gold medal in the shot put, and the same should be true about election results. But in polarized America, we have lost that clarity and public consensus.

Different media environments present radically different pictures of the electoral landscape. Citizens increasingly trust only information from their side of the political divide. Who won is starting to sound subjective – a very dangerous trend.

On Tuesday, the Georgia State Board of Elections took a major step that makes the situation even worse.

The committee voted to give the state’s county-level election boards new and unclear powers to conduct election investigations before certifying results. This decision gives a role in evaluating election results to committees composed primarily of members of political parties, whose work is unlikely to be seen as impartial. The decision also includes is in contradiction to long-standing case law which has interpreted county board certification as a ministerial, not discretionary, function. The new powers “would sow disarray in the state’s election administration process, which already has safeguards in place to ensure that election results are accurate and reliable,” the Brennan Center for Justice and United to Protect warned in a Letter to the Board.

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In Georgia and most other states, local certification of results used to be a sleepy bureaucratic act. A county commission or board of elections would receive the results for each precinct from the county’s chief election official and confirm that the numbers added up correctly. Laws and case law in many states make clear that this process is not designed to investigate the results or make independent judgments.

These county boards in Georgia and other states do not need discretion at this stage because other elements of the election are sufficient to protect fair results. State law provides for several checks on preliminary results, including recounts and audits. Party poll watchers are allowed to observe the election process to look for irregularities. Parties and candidates can challenge election results in court.

Since 2020, certification has become a battleground in the polarization wars. In six states, panel members have sowed doubt and rigged elections by refusing to certify results, often based on blatantly arbitrary and subjective arguments. “I don’t trust these (Dominion voting) machines and I want to see a fair election for everyone in Otero County,” said a New Mexico county commissioner who originally voted against certifying the 2022 primary.

In New Mexico and other states, courts intervened to ensure that county boards or commissions followed the law and certified the results. These judicial actions prevented certification problems from seriously disrupting the election schedule, but because of the media attention, the stalemates contributed to distrust and uncertainty about the results.

Some Media coverage The Georgia decision has mentioned a worst-case scenario of deliberate delays in certification to prevent Georgia’s electoral votes from reaching Washington in time to be counted, but there are strong arguments against the likelihood of that scenario. The counties’ certification deadline in state law – one week after Election Day – is fairly early in the process, so any delay long enough to put electoral votes in jeopardy would well exceed the “reasonable” standard set out in the ruling, giving courts free rein to step in and force certification.

The main argument for Georgia’s new rule is that the current “ministerial” approach requires county council members to certify results they have not personally certified. These concerns can be addressed by clarifying the documents that boards should receive, a proposal by SEB Chairman John Fervier.

It is helpful to step back and look at this debate from a comparative perspective. A recent study of 12 major democracies found that none have a separate certification step in their election process. In fact, the word “certification” (or its equivalent) does not appear in any electoral law. What happens instead in these countries is straightforward: the people who run the elections announce the results, courts hear any appeals, and their decisions are final.

The best way for America to restore consensus on who won is not to distribute decision-making among hundreds of poorly resourced partisan bodies, but to follow the model described above: The role of the courts must come first. Imperfect as they may be, no institution is better suited than courts to examine evidence, render verdicts, and enshrine the rule of law in elections.

In 2020, dozens of courts in six swing states decided 64 lawsuits brought by the Trump campaign. All but one were dismissed, withdrawn, or ruled against the campaign. (See this report for an excellent summary of all the cases.) Taken together, these decisions are the final verdict on who won the 2020 election, but they have not been given the importance they deserve. Too often, commentary in the mainstream media cited the Opinions by experts on the trustworthiness of the elections, instead Decisions by judges whose rulings represented the final word on the matter from a constitutional point of view.

The Electoral Count Reform Act, a critically important piece of legislation passed by a bipartisan majority in Congress, is based on the same basic principle that courts play the key role in election disputes and that partisans—such as the vice president and members of Congress—have minimal discretion. This is the direction we should be heading. The laws recently passed in Michigan and Minnesota also reflect this approach, making clear that the certification process is “purely ministerial.”

When the Georgia State Legislature reconvenes, it should follow this trend and override the SEB’s decision.