Georgia Republicans start the steal
Trumpers are preparing for November shenanigans.
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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.
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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.
That’s it for today
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Thanks for reading.
The more I read about anti-democracy shenanigans in Georgia (and Arizona, and other places), the more I marvel that elections in this country are as free and fair as they are. Because Republican attempts to tilt the outcome in their favor never stop.
In addition to their plans on running out the clock, I'm afraid the chain will reach MAGA seated judges who'll further contaminate the issue with their own bad faith rulings.
And we all know how the corrupt, accountable to nobody SCOTUS would rule.