The latest election-protecting lawsuit filed this week in Georgia goes straight to the heart of the contest in the country over the survival of freedom’s most basic institutions: our vote and the rule of law. The suit is also vital to the more immediate outcome of this election, and whether Donald Trump can find a way to win by any means necessary.
Trump and his Maga allies seek to permanently dismantle the architecture of government established by our founders 235 years ago. The route there this November runs through Georgia, a key battleground state where undoing any electoral victory by Kamala Harris would be vital to Trump’s return to power. Trump and his acolytes will do whatever it takes to win. That includes not certifying the people’s actual vote.
They are trying to turn a system of automatic certification, per our constitution’s design and as it has always been, into one where power turns on the people they have in place – in other words, a government not of law, but of men. If they can refuse to certify elections, they don’t have to worry about them in the future.
That is the path to power unconstrained by the people. To achieve it Trump and his Project 2025 architects need to strip institutional constraints set by the constitution and state law on a future president’s readiness to govern by force. Trumpism’s route to the White House is paved with bricks of election theft.
The suit, filed against the Georgia state election board (SEB) on behalf of eight Georgia citizens and the Democratic party, gets right to the point:
“Three months before the November 5 general election, Georgia’s State Election Board (“SEB”) has attempted to upend the required process for certifying election results. Through rulemaking, the SEB has attempted to turn the straightforward and mandatory act of certification … into a broad license for individual board members to hunt for purported election irregularities of any kind, potentially delaying certification and displacing longstanding (and court-supervised) processes for addressing fraud.”
The board – whose 3-2 Maga majority members Trump recently singled out for praise as “pit bulls” – is a key election rulemaking body in Georgia. The new lawsuit challenges two of the board’s newly enacted “rules”.
The first rule requires local election officials to conduct “reasonable inquiry” into election results before certifying them. The term “reasonable inquiry” is dangerously elastic, creating an opening for authoritarians to do whatever they want. No sensible court would ever approve such a system, by which unelected appointees could issue open-ended election rules making certification discretionary, especially without any such directive from the legislature of Georgia to end democracy.
The second rule permits individual county board members “to examine all election related documentation created during the conduct of elections prior to certification of results”. The opportunities are unlimited to delay certification by demanding that documents great and small be produced before certification.
One apparent goal is to bypass federal and state law requiring states’ votes certified in time for Congress, on 6 January 2025, to bless the election results. If enough states’ certifications are stalled so that too few electors are actually appointed as of 6 January, under the 12th amendment, the presidential election goes to the House. There, per the constitution, the election is determined by one vote per state delegation. Given gerrymandering and how the House is structured, Republicans have held a majority of the state delegations for years. In November, by their votes, Trump would become president, regardless of whether he has won the electoral college vote or a popular vote majority.
This is the formula for American carnage that Trump and Vladimir Putin, the Russian president, would pray for if prayer were in their vocabulary. The strategy in Georgia, also under way in other states, has not come about by accident. Maga world legal operatives like Cleta Mitchell, chair of the so-called “Election Integrity Network”, learned from losing in 2020, when the Georgia state board was not packed with a majority of election deniers, and when parallel conspirator-moles were not buried in local election offices.
According to ProPublica, the initial draft of one of the two rules the new lawsuit targets was secretly written “at the behest of a regional leader of the Election Integrity Network”. Recall that Mitchell was with Trump on the infamous call in which the then president pressured Brad Raffensperger, the Republican Georgia secretary of state, to “find” him 11,780 votes to undo Joe Biden’s victory. In 2020, Raffensperger heroically refused Trump’s recorded telephonic entreaty to “find 11,780 votes”, one more than his margin of loss to Biden.
Then there’s Steve Bannon, quiet lately because he’s serving a four-month jail term for contempt of Congress. Just after January 6, he broadcast on his War Room podcast his Maga world call to take over local election offices “village by village”.
Step by step these conspirators and their allies have worked behind the scenes to lay down a substructure to gird their 6 January 2025 plan to steal the election by abuse of law, just as in 2020. If that fails for them, they have violence as Plan B. We’ve seen this movie before.
In pursuit of Plan A, Trump’s Maga team has spearheaded the takeover of a limited but growing number of local election offices in battleground states, according to Rolling Stone magazine. They’ve held trial runs in not certifying local elections in states from Arizona to Michigan and Georgia, none successful so far, to a better-organized national effort, state by state, in the week that follows any Trump loss this fall.
Meanwhile, the plaintiffs in Monday’s lawsuit are on to the Maga election board majority’s tricks. The suit’s legal premises are straightforward. State legislation imposes a mandatory duty in Georgia on local election “superintendents” – a term of art that includes both single county election administrators and local election boards – to certify their county election by the first Monday after the Tuesday election. There is no discretion, as Georgia courts have held for a century.
The statute also says that “if any error or fraud is discovered, the superintendent shall compute and certify the votes justly, regardless of any fraudulent or erroneous returns presented to him or her”. There is a statutory process for contesting election results – in court after certification.
Monday’s suit also attacks the board for its failure to satisfy the “basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules”. Specifically, in adopting the rules, the suit alleges that the board failed both to “issue a concise statement of the principal reasons for and against its adoption” and to “consider fully all written and oral submissions respecting the proposed rule”.
This is all black-letter law. The board was notified of its procedural failures before adopting the rules and simply ignored them. This suit looks like a slam-dunk winner, at least so long as the Georgia courts remain worthy of their robes.
The good news is that Democrats may not be completely alone. On Monday, Brian Kemp, the Republican governor, formally asked Georgia’s attorney general if he can remove the three board members who lawlessly approved the new rules. In 2020, Kemp rebuffed Trump’s efforts to hijack Biden’s electoral victory in Georgia. Under the Electoral Count Reform Act of 2022, he is the one who “ascertains” the state’s electoral college winner and sends it to Congress.
In addition, Raffensperger has called out the three Maga members for trying to insert an “11th-hour” change of the rules. He remains under Georgia law the one who certifies the vote for the governor’s “ascertainment”.
Speaking out for honest vote counting, Kemp and Raffensperger seem like the rarest of species among today’s Republicans. It doesn’t need to be this way. We could have two parties competing the way they used to, based on policy. It will probably take a fourth national defeat – following 2018, 2020 and 2022 to put a dagger in the Trumpist strategy committed to winning the electoral college via a loss of the national popular vote.
“Defend institutions” is the second of the 20 lessons in On Tyranny, Yale historian Timothy Snyder’s updated and illustrated 2021 pamphlet on fighting totalitarianism. We the people can join in defending our institutions and sending Trump to defeat through a massive get out the vote effort against him. Before voting begins, there is only one party (with a few individual exceptions) that is defending the rule of law and our votes. Monday’s powerful lawsuit to defang the Georgia election board’s Maga majority is a shining example.
Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law at Harvard Law School
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy
