Georgia Republicans start the steal
Trumpers are preparing for November shenanigans.
Aug 29, 2024
On Tuesday, the
Democratic Party of Georgia and the DNC sued Georgia’s State Election Board
(SEB) to block two new rules that would allow local election boards to throw a
monkey wrench into the upcoming vote certification.
With the ostensible goal
of promoting faith in elections, Republicans on the SEB have done the exact
opposite, handing local officials a tool to sow mistrust and potentially even
refuse to certify the outcome in places like Atlanta, where Democrats rack up
large numbers of votes. Had such a tool been available to Trump and his allies
in 2020, he might have succeeded in pressuring state legislators to reconvene
and steal Biden’s electoral votes, flipping the state.
As ProPublica noted, the SEB rejected a virtually identical
rule change in May, calling it patently illegal. But since then, moderate
Republican election lawyer Ed Lindsey was replaced on the board by MAGA
Republican Janelle King, and suddenly changing the rules
became kosher.
At a rally in Atlanta on
August 10, Trump praised King, along with Janice Johnston and Rick Jeffares,
the two board members who voted with her to pass the rule change, calling them
“pit bulls fighting for honesty, transparency, and victory.” (Watch below —
video via Greg Palas.)
In contrast, Georgia’s
Republican Secretary of State Brad Raffensperger decried the “11th-hour effort to impose new
activist rulemaking that would undermine key provisions of Georgia’s Election
Integrity Act.”
The plaintiffs warn of
“chaos” if the rules are allowed to go into effect, potentially allowing
Republican election officials to disenfranchise thousands of voters and
overturn the election. And we all know how Trump and his allies can be in a
chaotic moment.
GOP elections board seeks to “clarify” the law
Under Georgia election
law, elections are overseen by superintendents, usually made up of a
politically-appointed county electoral board. They play an important role in
conducting and tabulating the vote, but, as the petition points out, that role
is largely ministerial.
Under GA Code § 21-2-70, the superintendent “shall
perform all the duties imposed upon him or her by this chapter” including an
obligation to “receive from poll officers the returns of all primaries and
elections, to canvass and compute the same, and to certify the results thereof
to such authorities as may be prescribed by law.”
The use of the word
“shall” is a clear signal that the obligation is non-discretionary, and the
statute does not contemplate withholding certification until members of the
board are satisfied that the election has been fairly conducted. Their job is
to administer the election in accordance with the law, ensure the votes are
correctly tabulated, and then, within six days, to certify results and submit
them to the state. And that’s it.
If there is fraud, Georgia law has established procedures to challenge election results once certified — and it involves the board members producing evidence to investigators, not becoming investigators themselves.
And yet, on March 26,
Fulton County Board of Registration and Elections member Michael Heekin filed
a petition to amend the SEB rules to impose an
affirmative obligation on superintendents to “attest, 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.”
This wasn’t just an
academic concern for Heekin, who voted against certifying the Democratic
presidential primary election in March. His petition for what became known as
the “Reasonable Inquiry Rule” sought to impose an additional requirement on
superintendents to DO UR OWN RESEARCH before doing their IRL jobs.
Then on June 17, Cobb
County Republican Chairwoman Salleigh Grubbs submitted a second petition proposing to “clarify” that local
officials have wide latitude to investigate election fraud and withhold
certification of the vote if they suspect foul play.
“[S]ome outside entities
have asserted that the certification of election results in a county is nothing
more than a ministerial task and that the members of the board have no
discretion but to rubber stamp results — sight unseen,” she scoffed, suggesting
that her proposed rule would “ensure that members of the County Boards can
perform, at minimum, their statutory duty unencumbered by outside influences
and misunderstanding of the law.”
The so-called “Examination Rule” allows superintendents, including the individual county board of election members, to examine all the voting materials to satisfy themselves of the result prior to certification.
Why shouldn’t we let local boards DO UR OWN RESEARCH?
The Atlanta
Journal-Constitution reports that at least 19 election board
members refused to certify elections since 2020.
In May, Fulton County
Election Board member Julie Adams refused to vote at all to
certify the results of the May primary. Adams is prodigious election denier, affiliated with
the Election Integrity Network and the Tea Party
Patriots who sued the Fulton County Board of Elections
demanding access to ever more granular election data, in hopes of finding the
proof of fraud she was sure existed. Election officials told her that the information was not
readily available and that she wasn’t entitled to it by law, but Adams simply
withheld her vote.
The other four members of the board, including Heekin, voted to certify, making Adams’s refusal to do her job irrelevant. But 40 percent of the Fulton County Election Board has already expressed interest in refusing to certify elections, and the problem is not confined to Fulton County. Gwinnett County Board Member David Hancock, an election denier, voted against certifying the May primary over purported concerns about chain of custody for the ballots.
On a party-line vote,
the SEB passed both proposed rules on August 19, greenlighting Heekin, Hancock,
and Adams’s request to LARP as members of the Bloodhound Gang and potentially
decertify any election result they don’t like. This is perhaps unsurprising in
light of revelations by independent reporter Justin
Glawe in Rolling Stone that SEB member Janice Johnston was in close contact
with Heekin, Adams, and Hancock, as well as other election denying board
members across the state, to craft a rule that would give them cover to delay
certification and demand more documents in their fruitless quest to find the
vote fraud they are sure is lurking around every corner.
The lawsuit
The plaintiffs argue that the new rules allow board members
to conduct extra-legal investigations and withhold certification in defiance of
state law. Under Georgia’s election statutes, superintendents have to compare
the tally of votes cast with the total voters in each precinct and can order a
hand recount in specific circumstances to reconcile any discrepancies. But, the
plaintiffs contend, “Once mathematical accuracy is attained, the superintendent
has no discretion to refuse certification.”
They insist that the
“Reasonable Inquiry Rule” violates the “shall” provision of GA Code § 21-2-70
and invites board members to conduct illegal investigations, transforming a
mandatory obligation into a discretionary exercise. And the “Examination Rule” invites
board members to run out the clock with demands for extraneous documents, and
then cite the lack of evidence as a reason to deny certification.
“The primary (and
narrow) purpose of county certification is to ensure that the aggregate
tabulation is numerically accurate,” the plaintiffs argue. “Other steps in the
election process — which occur both before and after county certification —
address the possibility of fraud. These steps include voter registration, voter
verification at the polls, the risk-limiting audit process, and the
election-contest process.”
They demand a
declaratory judgment from the court that certification of election results is
non-discretionary and cannot be delayed to allow board members to spelunk
through the documents, and, “to the extent either the Reasonable Inquiry or
Examination Rule fails to comply with the Georgia Administrative Procedure Act,
it is an invalid and unlawful exercise of SEB’s authority.”
Now what?
The case was assigned to
Judge Robert McBurney, who presided over the grand jury in Fulton County which
indicted Donald Trump and 18 of his allies for conspiracy to commit election
fraud. He’s an experienced judge who will certainly handle the matter both
fairly and expeditiously. But the timing of these rules, which go into effect
in September, virtually guarantee that the matter will be mired in litigation
throughout the election — which is not an accident.
“At minimum, these novel
requirements introduce substantial uncertainty in the post-election process and
— if interpreted as their drafters have suggested—invite chaos by establishing
new processes at odds with existing statutory duties,” the plaintiffs warn.
Whether or not it
succeeds, the fight over the rule will itself feed the self-perpetuating cycle
of Republicans fomenting lies about election fraud, and then pointing to the
public’s belief in those lies to justify further intrusion into the electoral
process. And that, for Republicans, is an end in itself.
