The Georgia State Board of Elections recently enacted two new rules that appear to be designed to allow local election officials to sabotage the state’s vote counting process. Republican nominee Donald Trump praised the three board members who supported the new rules, all of whom Earlier he questioned the outcome of the 2020 election which Trump lostAs in “Fighting Pit Bulls for Integrity, Transparency and Victory.”
The rules seek to change the role of local election officials, known as superintendents, whose job it is to collect votes from polling places within their jurisdictions, add up the tallies 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 ministerial” and that these superintendents “have no right to prosecute irregularities or fraud.”
In the first of the State Board’s new rules, however, these local superintendents must have a “reasonable inquiryBefore certifying an election to confirm the results “a true and accurate account of all the votes cast in that election.”
It overturns the long-standing rule that superintendents only perform the ministerial function of tabulating votes, and it will give these local superintendents broad new powers to investigate alleged irregularities in an election and refuse to certify an election if they claim to find any.
The second rule provides that all county election board members must have access to “all election-related documents produced during the conduct of the election prior to the certification of results,” although the rule does not define which documents must be provided. In most of Georgia, the county board of elections serves as the superintendent that tabulates the polls in that county.
To be clear, Georgia’s election law already allows a party who believes that misconduct, fraud or other irregularities occurred during an election. File a case challenging the result. It allows questions about whether the initial count was reliable to be decided using the same evidentiary rules that apply to any other court in Georgia and after both sides of the dispute have had an opportunity to submit briefs.
The state board’s new rules, by contrast, allow local election officials to search for documents they believe may lead to an irregularity, and then refuse to certify the results based on their own subjective conclusion that the election was not properly administered. If Trump loses Georgia in November, however, his campaign will likely lobby local officials so that Trump and his allies can use this power aggressively to pressure local officials in 2020.
There are several ways to kill the new rules before November. Earlier this week, the Democratic Party and several Democratic officials filed a lawsuit challenging the new rules. The lawsuit claims the rules violate state election laws, which mandate that superintendents must certify the results of all local elections by a certain date, that the new rules violate state Supreme Court decisions limiting the role of these superintendents, and that the state board did not. . Not following proper procedure while making new rules.
Meanwhile, Gov. Brian Kemp, a Republican who Trump has clashed in the pastRecently asked the state attorney general for “guidance” on whether Kemp has the authority Fire three MAGA board members Who is responsible for the new rules.
So there’s a decent chance that, one way or another, the new rules won’t be in effect during this November’s election. Should the state board’s strategy succeed, however, prepare for chaos.
Is the new rule valid?
The Democratic lawsuit against the Georgia State Board of Elections was only filed last Monday, so it remains to be seen how state courts will handle this new case. Despite this, the party Filing in primary court Makes a persuasive case that Georgia law does not allow local election superintendents to delay a certificate of election or adjudicate election-related disputes.
The theory of the case as to how elections are to be conducted in Georgia is straightforward. After the ballots are cast, their numbers are tallied by local superintendents within a strict time frame. These tallies are then forwarded to the Secretary of State, who himself tabulates them and certifies the result to the Governor, within a tight deadline. Additionally, in presidential election years, federal law requires states to appoint members of the Electoral College.Not later than 6 days before the date fixed for the meeting of electors”
A missed deadline risks triggering a chain of consequences. If a local superintendent doesn’t meet their deadline, it can set off a cascade in which more senior officials don’t meet their deadlines either — unless they vote out of the recalcitrant superintendent’s jurisdiction entirely.
Election challenges can occur, but they are resolved by the courts and not by the superintendent, and Georgia state law requires officials to be involved. Re-certify an election If a successful challenge changes the result.
The Democratic Party’s legal theory is supported by several provisions of Georgia election law. For starters, state law imposes a mandatory deadline on local superintendents, stating that local election results “to be certified by the Superintendent Not later than 5 p.m. on the Monday following the date on which such election was held. So state law not only imposes a strict deadline on local election officials, it says they must “certify” an election regardless of what they think about the results.
So, while superintendents may exercise some authority in the days between an election and certification period — perhaps tracking down certain returns that were mistakenly not sent or correcting transcription errors during the process of tabulating election results — they cannot deny them. Confirm when the deadline arrives. Allowing superintendents to do so would not only cause the state to miss key deadlines, it would place extraordinary power in obscure local officials who are ill-equipped to adjudicate election disputes.
This reading of state law is reinforced by state Supreme Court decisions such as 1926, as well as other provisions of state law cited in the Democratic Party case. Bacon vs BlackThat case established that the superintendent’s duty to certify an election is “purely ministerial.”
Georgia’s practice of instructing local election officials to simply count the votes and leave election-related disputes to be decided by the courts also appears to be a longstanding practice that is nearly universal across the United States.
In its lawsuit, the Democratic Party cited a 2024 Law Review Article on the election certificate, which states that “[b]By 1897, the ministerial, mandatory nature of certifying returns was so well established that a leading treatise declared ‘[t]His doctrine that Boards of Canvassing and Judges of Return possessed no discretion or judicial power over ministerial officers was settled in almost all the States. The Democratic Party, in other words, isn’t asking Georgia to do anything out of the ordinary. It has been asking nearly every state since the McKinley administration to conduct its elections the same way.
Meanwhile, three MAGA members of the state election board do not appear to support Georgia’s election law. They are apparently seeking to promote standard practices for conducting elections in the United States that have been common since the late 19th century.
So, it remains to be seen how the Georgia courts will react, the Democratic case against the state election board seems pretty strong.
