ATLANTA — The Georgia State Election Board voted Monday to approve a new rule that supporters say is necessary to ensure that votes are properly counted but that critics argue could be used to cause chaos as election officials are trying to finalize election results.
Three members of the board who were called out by name by former President Trump during a campaign rally in Atlanta earlier this month as “pit bulls fighting for honesty, transparency and victory” voted to approve it. The nonpartisan board chair and the lone Democrat on the panel voted against it.
Trump continues to assert without proof that the 2020 election in Georgia was stolen from him through widespread voter fraud, and his supporters say new rules are needed to safeguard against fraud or errors. But Democrats and some election integrity organizations fear Trump-aligned county election board members could use new rules to try to slow or halt the certification of elections if they don’t like the result.
The rule adopted Monday requires county election officials to generate lists of voters who cast ballots in an election, categorized by voting method, and to examine them for duplicates. After any discrepancies have been investigated and resolved as required by law, all returns “which are entitled to be counted” shall be recorded and verified as accurate.
The rule also requires county officials to meet by 3 p.m. on the Friday after an election to review precinct returns - that’s before the 5 p.m. Friday deadline for overseas and military ballots to be returned and for any issues with provisional or absentee ballots to be rectified by voters. And it says county election officials “shall be permitted to examine all election related documentation created during the conduct of elections” before they certify results.
Republicans have repeatedly claimed they have been unable to see all the documents they wanted in Fulton County, although election board leaders said they provided access to all requested documents following the most recent election in May.
The State Election Board is considering a raft of proposed rule changes less than three months before the November general election. While the rule approved Monday should take effect by early September, any rules adopted at future meetings likely won’t be valid before overseas, military and some absentee ballots have been sent out.
Separately Monday, Georgia Attorney General Chris Carr released an official opinion that sets back an effort by the board’s Trump-aligned majority to reopen an investigation into Fulton County that the board closed in May. The most populous county in the state, Fulton includes most of the city of Atlanta and is a Democratic stronghold.
Monday’s rule approval follows the adoption earlier this month of a rule requiring county election officials to make a “reasonable inquiry” before certifying results. But that rule didn’t define what that means.
Certification was long an administrative process that garnered little attention, but some conservative election officials have tried to block certification in recent years.
Supporters of both rules say county election board members need to be sufficiently sure of the results before signing statements that they’re accurate. But critics cite extensive court precedent that says certification is not a discretionary process.
Monday’s rule was submitted by Bridget Thorne, who is a Fulton County commissioner but said she proposed the rule as a private citizen. She told the State Election Board that it is a “common-sense rule” that “simply offers guidance on following the existing law.” She said it would help prevent ballots from not being counted or being counted more than once.
Citizens for Responsibility and Ethics in Washington, the American Civil Liberties Union of Georgia and Public Rights Project said in a joint statement Monday that the rule “would illegally broaden county election board members’ authority prior to election certification, under the guise of transparency.”
Allowing county election board members to examine “all election related documentation” exceeds the State Election Board’s rulemaking authority, invites abuse and could create unreasonable burdens for election workers in the hectic period leading up to certification, the statement says.
Sara Tindall Ghazal, the election board’s lone Democrat, said it is “absolutely critical that every vote is accounted for.
“My concern is that some of the language that’s being used is suggesting that superintendents have discretion to determine which votes are counted, and that is not the case,” she said. “The statute does not support that.”
Board Chair John Fervier said the wording could lead to an “unlimited search of documents” that could allow county board members to say they won’t certify because they haven’t received a certain document.
Fervier said he’s also concerned that the board is exceeding its authority and that the rule “kind of redefines the certification process.” Those types of definitions should be left up to state lawmakers, he said.
Fervier and Ghazal voted against the rule and the trio of Republican partisans - Dr. Janice Johnston, Rick Jeffares and Janelle King - voted in favor. It will now be filed with the secretary of state and will take effect 20 days later.
During a meeting earlier this month the board similarly voted 3-2 to ask the state attorney general to investigate Fulton County, seeking to reopen an inquiry closed in May. The resolution says that if Carr doesn’t act, the board will try to hire an outside lawyer to conduct an inquiry.
In an official opinion sent to the board chair Monday, Carr wrote that he had not yet received a written request, but that he wanted to clarify the relevant law.
The State Election Board does not have the authority to direct him to do an investigation and he does not have the authority to open such an investigation on his own, he wrote. The law says the election board itself has the authority to investigate election matters or to authorize the secretary of state to do such an investigation.
The state Constitution also explicitly says that the attorney general is the legal adviser for state boards, Carr wrote. He is not required to engage outside counsel at their request and they are not entitled to engage legal counsel without his approval, he wrote.
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