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The Georgia Election Commission recently enacted two new rules that appear designed to allow local election officials to undermine the state’s vote-counting process. Republican candidate Donald Trump praised the three commission members who supported the new rules. Both are Previously questioned the results of the 2020 election that Trump lostknown as “a bulldog fighting for honesty, transparency and winning.”
The rules are intended to change the duties of local election officials, known as supervisors of elections, whose job it is to collect vote returns from polling places within their jurisdictions, compile the results, and report those numbers to the Georgia Secretary of State. For at least a century, the Georgia Supreme Court has held that this duty is “purely a ministerial one” and that these supervisors of elections “have no authority to adjudicate irregularities or fraud in elections.”
However, the first new rule from the state board requires these local school superintendents to conduct “Reasonable Inquiry” can only certify the election results to ensure that the results are “a true and accurate record of all votes cast in that election.”
That upended long-standing rules that had limited local election monitors to the ministerial task of counting votes and gave them broad new powers to look for alleged irregularities in elections and to refuse to certify them if they claim to have found them.
The second rule states that all county election board members must have access to “all election-related documents created during the election process prior to the certification of the election results,” but the rule does not specify which documents must be made available. In most of Georgia, the county election board also serves as the supervisor of counting the county’s votes.
To be clear, Georgia election law already allows political parties that believe there was misconduct, fraud or other irregularities during an election to file a petition Filing a lawsuit to challenge the results. That way, the question of whether the initial count was reliable can be decided using the same rules of evidence that apply to any other Georgia court case and after both parties in the dispute have had an opportunity to file briefs.
By contrast, the state board’s new rules allow local election officials to rummage through documents, look for what they believe to be potential irregularities, and then refuse to certify the results based on their own unique conclusion that the election was not conducted properly. Moreover, if Trump loses Georgia in November, his campaign will likely lobby local officials to use this power aggressively, similar to Putting pressure on Trump and his allies Local officials will be appointed in 2020.
There are several ways to defeat these new rules before November. Earlier this week, Democrats and several Democratic officials Litigation challenging new rulesThe lawsuit says the rules violate state election law, which requires the superintendent of schools to certify all local election results by a certain date, that the new rules violate a state Supreme Court ruling limiting the superintendent’s duties and that the state board did not follow proper procedures in setting the new rules.
Meanwhile, Republican Gov. Brian Kemp Has clashed with Trump in the pastRecently sought “guidance” from the state attorney general, asking whether Kemp had the authority Fire three MAGA board members Who is responsible for making new rules?
So there’s a good chance the new rules won’t take effect in this November’s election anyway. But if the state board’s gambit succeeds, prepare for chaos.
The Democratic Party’s lawsuit against the Georgia Election Commission was only filed last Monday, so it remains to be seen how the state court will handle this brand new lawsuit. First application to the court It makes a strong case that Georgia law does not allow local election directors to delay election certification or adjudicate election-related disputes.
The lawsuit’s theory of how Georgia elections should be conducted is simple. After the ballots are cast, local superintendents count them under tight deadlines. Those counts are then transmitted to the secretary of state, who personally counts the votes and certifies the results to the governor under tight deadlines. In addition, in presidential election years, federal law requires the state to appoint members of the Electoral College “to ensure that the electoral college is properly governed by the law.”No later than 6 days before the scheduled time of the voters’ meeting”
Missing a deadline can set off a chain reaction of consequences. If a local supervisor fails to meet a deadline, it could set off a chain reaction of more senior officials failing to meet deadlines as well — unless they keep ballots out of the recalcitrant supervisor’s jurisdiction entirely.
Election challenges can occur, but they are resolved by the courts, not supervisors, as Georgia law requires. Recertification Election A successful challenge would change the outcome.
The Democrats’ legal theory is supported by several provisions of Georgia’s election law. First, state law imposes mandatory deadlines on local officials, requiring that local election results “be finalized.”Must be certified by supervisor No later than 5:00 p.m. on the Monday following the election.” So state law doesn’t just impose a strict deadline on local election officials; it also states that they “must” certify the election, regardless of how they feel about the results.
So while election directors might exercise some authority in the days between an election and a certification deadline — perhaps chasing down some precinct returns that were mistakenly not transmitted or correcting transcription errors made in the process of tabulating the results — they might not refuse to certify after the deadline arrives. Allowing election directors to do so would not only cause states to miss critical deadlines, but also give too much power to faceless local officials who are simply not equipped to adjudicate election disputes.
This reading of state law is supported by other state law provisions cited in the Democratic lawsuit and by a 1926 state Supreme Court ruling Bacon v. BlackThe case established that the inspector’s duty to certify an election is “purely an administrative duty.”
Georgia’s practice of instructing local election officials to simply count votes and leave election-related disputes to the courts appears to be a long-standing practice that is almost universal in the United States.
The Democrats cited 2024 Law Review Articles election certification, which notes that “since 1897, the mandatory and public character of election certification has become so entrenched that one leading paper declared that ‘the principle that election boards and election judges are public officers, without discretionary or judicial powers, is well established in nearly all states.'” In other words, the Democrats aren’t asking Georgia to do anything out of the ordinary. They’re asking the state to conduct its elections the way nearly every state has since the McKinley administration.
Meanwhile, the three Make America Great Again members of the state elections board did more than just overturn Georgia’s election laws. They were clearly trying to overturn the standard voting practices that have been prevalent in the United States since the late 19th century.
So while it remains to be seen how the Georgia courts will react, the Democrats’ case against the state election board appears to be fairly strong.
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