Experts say Georgia's redistricting rule violates state law — ProPublica

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Update, August 27, 2024: On Monday, the Georgia Democratic Party and the Democratic National Committee, along with Democratic members of the Georgia legislature and five metro Atlanta election boards, filed a lawsuit against the Georgia Board of Elections, challenging its new certification rules. “To repair these harms and prevent chaos in November, this Court should follow decades of binding precedent,” the lawsuit says, seeking a declaration that “election officials must certify election results.”

Georgia's state election board couldn't have said it more clearly. Back in May, four of them opposed a bill that would have given county election boards a new way to delay or reject election results, which could throw November's vote count into chaos.

“They violate both federal and state law,” Ed Lindsey, a Republican board member and attorney specializing in election law, said to the woman who proposed the rule.

This rule “violates federal law. It also violates state law,” said Sara Tindall Ghazal, the only Democrat on the panel.

“It's just not mature enough for prime time,” the CEO said, pointing out that more work is needed to ensure legality.

Even the only board member who supported the rule, Janice Johnston, a retired obstetrician who has made unsupported claims about fraudulent vote counts in Fulton County, voted against it. The fifth board member did not vote. The board agreed that two members would work on improvements to the rule.

Three months later, a new draft of the regulation was put to the vote again. This time it was adopted by a vote of 3:2.

How much has the rule changed between drafts? A review by ProPublica shows: hardly at all. In fact, election law experts told ProPublica that the small changes made the rule even less consistent with existing law.

The rule dramatically expands the powers of county clerks who oversee the normally mundane task of certifying elections. The rule's passage was made possible by nationally known election objectors and the Georgia legislature. And the members of the panel who passed it were cheered on by former President Donald Trump. It comes at a time when Trump and his allies are already questioning the fairness of the electoral process and preparing to contest the results – and as Trump falls behind Vice President Kamala Harris in the polls in swing states.

It is no coincidence that Trump's allies are expanding their certification powers in Georgia, a state where Biden defeated Trump by fewer than 12,000 votes in 2020.

A few weeks after that election, Trump called Georgia Secretary of State Brad Raffensperger and asked him to “get” him the winning votes. Raffensperger refused. Since then, lawmakers have taken numerous steps to exert more control over the state's elections.

In the 2021 legislative session, lawmakers stripped Raffensperger of his post as chair-designate of the state Board of Elections. Instead, they gave themselves the authority to appoint the chair unless they were in recess, in which case the governor could do it. (However, they could replace that chair once they were back in session.)

Another of their changes came last May after Lindsey, the Republican board member who had called the rule illegal, was pressured to resign. The Republican Speaker of the House replaced him with Janelle King, the former deputy state director of the Republican Party of Georgia and a conservative media personality with no experience in election administration who tweeted about the results of the 2020 election: “I have questions!!”

With King, the board now had a majority of members who had questioned the outcome of the 2020 election. In early August, Trump praised all three by name at a rally in Atlanta, calling them “pit bulls fighting for honesty, transparency and victory.”

Meanwhile, supporters of the rule — including Bridget Thorne, a Republican county commissioner from Fulton County who calls herself the “originator” of the rule — have decided to resubmit it. Thorne told ProPublica that the claims about the rule's illegality were an attempt to “scare” her. “I talked to the legislators,” she said, “and they couldn't find anything wrong with my rules.”

Thorne said she received advice and support on the revised rule from Hans von Spakovsky, a Heritage Foundation lawyer who has led nationwide efforts for stricter voting laws for decades; from Ken Cuccinelli, a former Virginia attorney general and chairman of the Election Transparency Initiative, a group that advocates for Republican priorities on voting rights; and from Cleta Mitchell, the head of the Election Integrity Network, a nationwide organization that challenges the legality of American elections and secretly supported the rule's submission. Mitchell had accompanied Trump on the call in which he asked Raffensperger to find votes for him.

In response to questions from ProPublica, Cuccinelli issued a statement claiming that the powers the rule grants to county board members are within the law: “Under current law, county board members attest by signing a certification that the vote count is accurate, which can be punishable by law. Of course, each of them is expected to make that determination themselves, otherwise neither boards nor board members would have any purpose.”

Mitchell and von Spakovsky did not respond to requests for comment.

The resubmitted bill was only slightly changed between its rejection in May and its passage in August. But those changes did not fix the law's legal problems, say five election law experts who spoke to ProPublica. In fact, they say, in some ways they made them worse.

At the heart of legal experts' criticism of this rule is their claim that officials have the discretion to delay certification, even though Georgia's case law and judicial history spanning over a century claims the opposite.

“If the state election board decided that the first rule was outside its jurisdiction, then I think the second rule is even more outside its jurisdiction,” said Caitlin May, a voting rights attorney with the American Civil Liberties Union of Georgia.

The only significant addition was a new paragraph giving county election boards the authority to establish “a method for fairly counting the votes” if they discover errors or fraud, while also requiring the board to report the fraud to the district attorney. Legal experts worried that some conservative county boards might interpret this as permission to correct vote counts they see as rigged, since the rule does not define what it means to “fairly count the votes.”

Georgia state law states: “If error or fraud is found, the superintendent shall correctly compute and certify the votes regardless of whether fraudulent or erroneous results have been presented to him or her.” (Italics added by ProPublica.)

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Peter Simmons, an attorney with Protect Democracy, a nonprofit that advocates for the integrity of American elections, said that by omitting “and certify” from the rule, its meaning appears to have been reversed. Rather than emphasizing that certification is a mandatory duty regardless of fraud or error, the rule attempts to give county election board members the discretion not to certify by omitting the language that they “compute and certify,” Simmons said.

“The slight change in the wording of this rule from the law could have significant implications” and “jeopardize Georgia's ability to meet the federal certification deadline,” Simmons said.

There was also a small change to the May version of the rule, which called for county commissioners to meet at 3 p.m. on the Thursday after the election to investigate possible errors. After criticism from Georgia election officials and others that the timing of such a meeting was well before the 5 p.m. Friday deadline for counting provisional ballots, the August version of the rule moved the date to 3 p.m. Friday. But experts warned that the later timing could still lead to provisional ballots being missed.

Johnston voted against the measure in May and for it in August. She was joined by Rick Jeffares, who did not vote in May, and King.

At the August meeting where the vote was taken, Johnston argued that certification should be discretionary, not mandatory, but she offered little justification for her support after previously voting against it, saying only that changing the timing of the investigative meeting addressed her concerns.

When asked why she changed her vote, Johnston replied in an email to ProPublica: “The small changes were appropriate.”

Jeffares and King did not respond to requests for comment.

Update, August 27, 2024: This story has been updated to include a response from Ken Cuccinelli. His comment was sent before the story was published but got caught in spam filters.