Even Republicans are ringing alarm bells about the last-minute changes Georgia’s State Election Board is making to election procedures in the state. Despite a multiple challenges to the new rules — which could sow chaos in the election — many are doubtful that any action will be taken to clarify the state’s rules before Election Day.
Earlier this week, a group of Republican and independent attorneys and interested parties penned a letter to Governor Brian Kemp, Attorney General Christopher Carr and Secretary of State Brad Raffensperger expressing concern about the recent rulemaking of Georgia’s State Elections Board.
The board is an unelected five-member body charged with ensuring “the fair, legal, and orderly” administration of elections across Georgia as well as keeping uniform electoral procedures across the state’s 159 counties. This year, however, a three-member pro-Trump majority consisting of Rick Jeffares, Janice Johnston and Janelle King, passed a spate of new election rules that even has Republicans concerned.
The two rules that have raised the most eyebrows are the “reasonable inquiry” rule, passed in August, and a hand-count rule passed last week. The first rule allows county election officials to conduct a “reasonable inquiry” — an undefined term — before certifying the results of an election. This rule appears to defy state law, which says county officials “shall” certify the vote.
The second rule requires three separate election workers to hand count the total number of paper ballots in each of Georgia’s 2,400 precincts, which counted some 5 million votes in 2020. They also require the poll workers to sort the ballots into stacks of 50 for the purposes of the hand count.
In the eyes of the 16 signatories of the letter, the hand-count rule “risks delaying certification, which could prevent Georgia from certifying election returns by December 11, 2024.” In an earlier letter, the group of conservatives concluded that “No reasonable observer could conclude that these three people are upholding that duty, according to the complaints,” noting that former President Donald Trump himself had praised the board at a rally where Johnston was in a front row seat and stood up to receive applause from both the crowd and Trump.
Richard Painter, a former Republican White House ethics lawyer who now teaches law at the University of Minnesota, told Salon that he sees these rules as “artificial delays” put in place so that Trump and his surrogates can spread their own theories about what he characterized as “mythical fraud” and cast doubt on the results of the election in the event of a Trump loss, adding that “if you see a story on Fox News about fraud, suddenly you can hold up the results.”
“We have not ever overturned an election in a court because of real fraud or real deprivation of voting rights,” Painter said. “It would be incredibly ironic [to overturn an election based on unsubstantiated claims of fraud] when we had literally a century when voters who were supposed to be allowed to vote couldn’t vote.”
Painter said, however, that he suspected any action from state officials in Georgia such as Kemp, Raffensperger or Carr would be more likely after the election, rather than before.
The problem with taking action after the election, in the opinion of Natalie Crawford, a former Republican county commissioner and the executive director of Georgia First, is that these rules pave the way for inconsistent election procedures across the state.
“Regardless of what the intention is, the effect is that it will create chaos,” Crawford said. “The State Elections Board has passed rules that are vague and undefined and, regardless of what the intention is, it sets up the system for chaos. They’re not providing in these rules any strict guidance to require that these processes are done uniformly across all 159 counties.”
In Crawford’s opinion, the State Elections Board is attempting “to legislate by rulemaking.” She pointed to a rule they passed requiring the video surveillance of locations with a ballot drop-box after the polls close. The Georgia General Assembly recently considered this policy and decided against implementing it. The State Elections Board, however, decided to pass the rule itself.
“The law is very clear, they cannot create rules that are more restrictive or expansive than what is state law. Their role is to ensure compliance with election law,” Crawford said.
Crawford’s group, Georgia First, which is focused on election access and security, has signaled that it plans to file amicus briefs in two pending court cases against the State Election Board, one filed by a Republican group and the other by Democratic groups. Both are challenging the new State Elections Board rules.
A representative from the governor’s office said in response to a question about the recent State Election Board rules that the governor’s office has no authority to remove members of the board until there have been formal charges filed against them. They added that Kemp does not have the authority to overrule the board under the current circumstances. The governor’s office was not able to give further comment for this article due to Hurricane Helene.
There are currently two court cases pending in Georgia concerning the recent rule changes. One, filed in Fulton County by a Republican-led group, Eternal Vigilance Action, is seeking to have the state courts prevent the board from enforcing the rules in question, arguing that they created rules without sufficient guidelines from the general assembly.
In a filing Thursday, the group amended its suit to address the hand-count requirement as well as the “reasonable inquiry” rule. The suit is set to be heard by Fulton County Superior Court Judge Thomas Cox on Oct. 4. The group is asking the court to either overturn the rules or put them on hold until after the election.
The second suit, filed by the National Democratic Committee and the Democratic Party of Georgia is set to be heard at a bench trial on Oct. 1. They are also seeking to have the rules thrown out.
The Georgia attorney general’s office previously issued a warning to the State Elections Board, indicating that they saw the then-proposed rules as “very likely exceed the Board’s statutory authority and in some instances appear to conflict with the statutes governing the conduct of elections.”
“The board risks passing rules that may easily be challenged and determined to be invalid,” Senior Assistant Attorney General Elizabeth Young wrote in the memo. “There are several proposed rules before the board that appear to either impermissibly conflict with or otherwise expand the scope of Georgia statutes.”
Ty Cobb, a former White House lawyer to Trump and a signatory of the letter warning about the rules, told Salon that “I worry that nothing will be done,” despite the push to challenge these rules.
“These unlawful and unlawfully enacted rules really need to be clarified soon,” Cobb said, adding that there “will be real confusion and controversy on voting day if no action is taken.”
In Cobb’s opinion, Georgia officials were more likely to take action after the election than before, an opinion shared by Painter and Crawford. Painter indicated that he thought the detente between Kemp and Trump would last through Election Day, a reading of the situation shared by Stuart Gerson, an assistant attorney general who served under former President George H.W. Bush.
“I think challenges to the Georgia rule itself are very well placed, especially in light of the fact that the security and accuracy of voting machines has been affirmed time and time again,” Gerson said.
Gerson also believes that the federal judiciary is well equipped to handle the post-election blitz of litigation expected from the Trump camp, citing the 65 challenges brought by pro-Trump groups after the 2020 election.
While there have been exceptions to the judiciary’s impartiality, like U.S. District Judge Aileen Cannon’s handling of the Trump documents case in Florida, Gerson said, “in the election law area, you have to say the judges have acted quite independently,” adding, “I hope that continues with the challenges we’re going to see.”
