The New York Times
Georgia’s new law and the risk of electoral subversion
What if Georgian Foreign Secretary Brad Raffensperger replied “OK, I’ll try” on a phone call in January after President Donald Trump asked him to “find” 11,000 votes? Nobody can be sure. What is clear is that the question has been overlooked in recent months. Much of the public eye has shifted from Trump’s attempt to topple the election. Activists and politicians are more focused on whether to limit or expand access to voting, especially through the mail. Sign up for The Morning Newsletter from the New York Times. However, attempting to reverse an election result without credible evidence of widespread fraud is a different order of magnitude than restricting access. A successful attempt to undermine an election would pose grave and fundamental risks to democracy and risk political violence and secessionism. Aside from the voting rules themselves, there is a danger that Georgia’s new electoral law will facilitate the subversion of the elections. It creates new ways for party-political interventions in the election administration. This includes allowing the state electoral body, now under the control of the Republican legislature, to appoint a single person to take control of the county’s typically bipartisan electoral bodies, which have important power over counting and voting. The law also gives the legislature the power to appoint the chairman of the state election committee and two more of its five voting members so that it can appoint the majority of the committee. It deprives the State Secretary of the chairmanship and a vote. Even without this law, there is still a risk of elections subversion: electoral officials and administrators across the country have important powers, including confirming election results, that could be used to win partisans. And it’s a risk that HR 1, the reform bill that Congress Democrats are pushing, is doing relatively little to address it. The new Georgian law does not inherently make it easier to “find” 11,000 votes. Almost all the powers the legislature could use were already in place – they had only been delegated to other persons or bodies. You could have been abused before and will be in the future, regardless of the new law. And the law has eligibility requirements for a chairmanship that excludes many individuals who are most likely to abuse their authority, including anyone who was a political candidate, campaign donor, or party organizer in the two years prior to the appointment. This does not rule out that a rabid partisan who heads the executive committee is excluded, but there were no such controls at the state secretary. (Raffensperger, a Republican who previously served in the Georgia House of Representatives.) The law takes power from Raffensperger, who only three months ago rejected Trump’s plea to find 11,000 votes. State lawmakers downgraded Raffensperger for one reason: Many likely agreed with Trump’s allegations. And if lawmakers had a problem with how Raffensperger handled the 2020 election, it is reasonable to wonder if it could have supported the board members who aggressively support the allegations made by Trump. Can state boards, county boards, or any other person use their administrative powers to reverse the election results? After the November election, a majority of Republican Congressmen and attorneys general signed efforts that would have invalidated millions of votes and sparked a constitutional crisis. With this in mind, it seems naive to assume that no one would try to abuse such power, be it in Georgia or anywhere else. Well worth going back to Trump’s infamous phone call. While the oft-quoted line about “finding” votes makes it seem like he wanted Raffensperger to create votes from scratch, Trump said he had already found the votes in the form of thousands of ballot papers that he said they were had been illegally cast: “We have all the votes we need. You know we won the state. If you took these are the minimal numbers, the numbers I gave you, these are numbers that are certified, your postal voting to free addresses, your out-of-state voters, 4,925. You know, when you add them up, it’s a lot more often, it’s a multiple of 11,779. In addition to the 4,925 non-state voters mentioned, Trump unsubstantiatedly alleged in the solicitation that there were hundreds of thousands of postal ballot papers with forged signatures. He claimed, based on incomplete matches between electoral rolls, that there were 4,502 voters who voted but were not registered; 18,325 voters with free addresses; 904 voters who only voted with a P.O. Box address; and nearly 5,000 votes from the dead. And without any evidence, he claimed to have been guilty of grave maladministration in Atlanta’s Fulton County, including 18,000 votes relating to someone who had done something vicious and “£ 3,000” shredded ballots. County and state election officials have a variety of powers that are relevant to such claims. They evaluate whether ballot papers should be accepted or rejected and certify the results. In Georgia they hear about eligibility challenges. It would have been difficult to use those powers to aid Trump, let alone survive a subsequent legal challenge. But there are levers that they could at least have pulled, even if it is not clear what would have become of them. One possibility is that the State Board may have usurped Fulton County’s power based on the president’s allegations in the general election and other primary allegations (the law requires proof of failed administration in at least two elections in the last two years). . The State Board could either have used the President’s allegations as a basis to refuse to confirm the result or otherwise disqualify eligible voters. It would be difficult or even impossible to do this immediately after an election. The law requires a rather lengthy consultation process before the state can intervene in the state elections. The preliminary hearing cannot take place more than 30 days after an initial petition that is in Georgia after the certification deadline. But perhaps a nefarious board of directors could lay the groundwork sooner and potentially bring a newly appointed superintendent under control before the elections if he or she had the opportunity to preemptively disqualify voters and ballots. County electoral bodies heard similar eligibility challenges during the Georgia runoff election. The state Republican Party and a Texas group in December questioned the eligibility of hundreds of thousands of voters based on whether a voter matched someone on the postal service’s list on the national change of address register. Some small counties have actually tried to invalidate voters on this basis. That lawsuit was denied by U.S. District Court judge Leslie Abrams Gardner, who happens to be the sister of Stacey Abrams, who narrowly lost the Georgia Governor’s 2018 race to Brian Kemp. While the runoff challenge stalled, it is not obvious that there is iron protection against eligibility challenges, either as a court precedent or a matter of federal law. A closer challenge could have had a better chance of surviving a legal challenge. And the new Georgian law eases these kinds of challenges by allowing a single person to question the eligibility of an unlimited number of voters. Another way to thwart an election could be to exit certification. The new Georgian law does not go much of the way in blocking certification as the Foreign Minister – not the board of directors or the legislature – continues to certify the results nationwide. But the district’s electoral boards, including those in Georgia, generally certify their election results, which the foreign minister then certifies nationwide. Trump attempted to thwart results certification efforts and turn routine hearings into television events. In the end, Trump’s attempt failed. Despite the immense political pressure to act, election officials overwhelmingly acted to preserve the integrity of the elections. Even so, the president managed to convince a handful of officials to vote against certification on dubious grounds. If the state secretaries had not confirmed the election results in Georgia or elsewhere, the country could have plunged into a crisis with uncertain consequences. It is not unreasonable to wonder if there is a chance something similar might happen in the future, given how many Republicans in the House refused to confirm the election census. Election administrators may have other options to undermine elections other than disqualifying ballots and voters, or decertifying the results in either Georgia or other states. All of this poses an obvious threat to American democracy. The risk of electoral subversion, however, has been overshadowed by the struggle for new electoral restrictions, particularly by mail. Progressives have been concerned about these types of restrictions for years, and HR 1 draft reform was written in part in response. However, as the law was mainly drafted before the 2020 elections, the provisions do not directly address the new risk that electoral officials could undermine election results. For example, there is no provision that prescribes impartial administration or the certification of federal elections. HR 1 contains provisions that indirectly limit the opportunities for actors who might try to undermine elections. A notable example is an anti-voter caging provision that rules out eligibility problems based on matching lists, such as the December change notification attempt. It also contains provisions that ensure basic election administration, e.g. B. the requirement that people do not have to stand in line for more than 30 minutes. However, given that the main focus of the proposed law is on improving democracy through increasing electoral access and more, it is by no means obvious whether HR 1 represents a comprehensive effort to protect democracy. And even if it offers the protection it needs, the risk of election subversion has received so little attention that relevant provisions may not be included in a slimmed-down bill. These provisions were not mentioned in most of the closer account proposals. This article originally appeared in the New York Times. © 2021 The New York Times Company
