There’s nothing “peachy” about instituting new rules shortly before a Presidential election that are designed to sow chaos in the process of counting and certifying the votes. But that’s what the Georgia State Election Board has been doing. They got underway in August — twice! The first was on Aug, 6 (Democracy Docket, Aug. 6):
The Georgia State Election Board passed a new rule with a 3-2 vote on Tuesday that could delay election certification and give board members more discretion to investigate elections.
The rule states that the board can only certify an election “after reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.”
[…] Sara Tindall Ghazal, the sole Democratic member of the board, expressed her opposition to the rule at the meeting, arguing that “reasonable inquiry” is too vague and allows for “exploitation.” She also said the rule violates state law.
“The statute still mandates that counties certify by 5 p.m. on Monday [after the election], and they will be in violation of state law if they refuse to certify,” Ghazal said.
Jamess wrote about this rule change here. Democrats filed suit over the rule; the bench trial will begin Oct. 1.
The second was on Aug. 19 (Democracy Docket, Aug. 19):
In their meeting Monday, the board voted 3-2 to pass a rule that prohibits a county election board from certifying results if there is a discrepancy between the number of ballots distributed and the number of voters until the board investigates the discrepancy.
It also allows county election board members to “examine all election related documentation created during the conduct of elections prior to certification of results.”
[…] By passing this rule, the three Republicans on the Georgia State Election Board — who have been praised by former President Donald Trump — continue to advance their mission of giving election officials more power to prevent or delay the certification of results.
But wait, there’s more! The board is set to vote on even more changes this Friday, changes that would affect the November election (WABE, Sept. 18):
Among the changes up for a vote on Friday is a new requirement that a polling place’s manager and two witnesses hand-count the paper ballots in every ballot box to verify that the count matches the number of ballots recorded by voting machines.
Other proposals include adding hand counts of absentee ballots, requiring the public posting of all registered voters in the upcoming election and expanding access for poll watchers.
[…] The new rules seem to allow local election board members to vote against certifying an election if they report uncovering discrepancies or if they cannot examine every election record they ask for.
[…] Georgia’s secretary of state, along with most election law experts, says Georgia law does not grant local election board members this discretion. But since 2020, a growing number of local Republican board members have tested their authority in several swing states.
That’s a lot of hand counting, which is routine for recounts but is not typically required for initial counts. I’m not sure about the public posting of all registered voters; since voter registration records are public and since I think I read that Georgia doesn’t include party affiliation in its registration, this might be legal. But the tactic of instituting new rules this close to an elections is so egregious that the counsel for the RepubliCon Secretary of State is trying to rein in the board (NYT, Sept. 18)
A lawyer for the election official, Secretary of State Brad Raffensperger, sent a scathing letter to the State Election Board on Monday, criticizing “the absurdity of the board’s actions” while warning that new rules under consideration are dangerously late in the election process and most likely illegal.
[…] In Ms. McGowan’s letter, she laid out a clear list of deadlines in Georgia election code to detail how new rules risk complicating the process. Counties begin mailing absentee ballots to voters on Oct. 7, and early in-person voting starts on Oct. 15. The earliest that new rules from the State Election Board could take effect would be Oct. 14. Ms. McGowan noted that Oct. 14 “is 22 days before the general election when Georgia voters will already be voting.”
She also said that the board lacked the legal authority to implement many of its proposed rules, including changing the form of ballots and the state voter registration database.
She was especially critical of two proposals to add hand counting of ballots in both early voting and on Election Day. She warned that those measures would add burdensome costs and labor at a very late stage in the election process and said they could invite error or fraud and harm the sanctity of the November election.
At least one county officially objects to the timing of the new rules, though it’s not clear that they have any alternatives to compliance (Athens Banner-Herald, Sept. 18):
The Athens-Clarke County Board of Elections and Voter Registration on Tuesday night passed a resolution opposing new election rules recently passed by the Georgia State Elections Board.
The board “denounces the actions of the State Election Board to introduce new rules within 90 days of the critical November 2024 General Election” and called for the board to self-impose a stay of the rule changes.
The new change requires local election officials to submit to the Georgia secretary of state a report reconciling the total number of ballots cast in each precinct with the total number of voters who received credit for voting before election results can be certified, according to a report by Capital Beat News Service.
Remember that the deadline for submitting each state’s slates of electors is Dec. 11:
After Trump's efforts to overturn his 2020 loss, which included more than 60 lawsuits and culminated in his supporters' Jan. 6, 2021, attack on the U.S. Capitol, Congress sought to stave off any recurrence by passing the Electoral Count Reform and Presidential Transition Improvement Act.*
The reforms set a new mandatory Dec. 11 deadline for states to submit certified slates of presidential electors to the Archivist of the United States, provided expedited court access to resolve challenges and raised the threshold for objecting to election results in Congress.
[…] Advocates fear a missed certification deadline could present a hurdle for presidential electors to cast their votes by the Dec. 17 federal deadline, add grist to political claims of a faulty election system and raise the possibility of a state's election results getting rejected by Congress.
If examining all the documents and reconciling hand counts with machine counts isn’t complete by Dec. 11, Georgia wouldn’t be able to certify its votes, and the election might have to be determined by the extremist House.
* The Electoral Count Reform Act contains the following provisions:
- Clarify the vice president’s role. Under current law, Congress counts and certifies the Electoral College votes to make it official, during a process led by the vice president, per their role as the president of the Senate. This bill would clarify that the vice president’s role in the Electoral College certification is purely ceremonial, and that they don’t actually have the power to change, overrule, or nullify any part of the count.
- Raises the threshold for Congress to object. Under current law, only one House member and one senator need to object to a state’s Electoral College certification, in order for Congress to vote on whether to exclude that state’s electors. For the 2020 election, those two thresholds were far exceeded: for Arizona, 121 House members and six senators objected; for Pennsylvania, 138 House members and seven senators. This bill would increase both thresholds for objection to one-fifth of both the House and Senate. Had this bill been law at the time, the Senate wouldn’t have met that threshold (although the House still would have).
- Clarifies which electors count. In case two or more factions within a state each try to send competing slates of electors to Congress for the official count, this bill lays out means for Congress to identify a single slate of electors from each state. It requires Congress to identify one state official (often the secretary of state) responsible for certifying their state’s electors, and requires the state’s electors themselves to be appointed prior to Election Day.
- **Harder to declare a “failed election.” **The bill also overturns a provision from the Presidential Election Day Act of 1845, which allows a state’s legislature to override their state’s popular vote if the legislature declares a “failed election.” Several states considered this option, namely ones in which the populace voted for Biden even though the legislature was still controlled by Republicans. (No state actually followed through.) This bill would only allow a legislature to override in case of “extraordinary and catastrophic” events.
You can read the full text of the act here.
