The Georgia Election Board's approval of another new rule less than 45 days before the general election sparked concerns about the possibility of disrupting the state's election administration and certification in November. But election law experts argue that while the new rule would raise doubts in the electoral process if it goes into effect, it would likely not withstand legal challenges.
The board approved a new rule 3-2 on Friday that requires an election official and two poll workers in each county to sort and hand count all ballots cast on the night of the election until they agree on the total. According to NBC News, the measure was approved by three board members who were praised by former President Donald Trump and viewed it as a necessary step to provide confidence in the state's election results and reduce the potential for vote-counting errors.
However, according to Julie Houk, Georgia law already has a “clearly defined statutory structure” for collecting and counting votes, as well as certifying the tally by county election boards, the secretary of state, and, in presidential elections, the governor, the acting attorney for election protection Lawyers' Committee for Civil Rights Under Law.
“A hand count of every vote cast in person in the election by three poll workers is outside of this structure and can disrupt the collection and analysis of votes and raise concerns about the security of the ballot papers and the transparency of the collection and analysis. ” Houk said in an email.
The panel's move follows the approval of other rules in August that were attacked by critics as creating the potential to delay the certification process for November's election. The new rules also come amid a recent spate of obstacles to the election administration process in a number of states, including battlegrounds, that have worked in Trump's favor. A legal battle over the removal of former independent presidential candidate Robert F. Kennedy Jr. from the state's ballot delayed delivery of military and mail-in ballots in North Carolina, with counties not beginning distribution until 11 a.m. last Friday. Republicans in Nebraska are also considering a last-minute change to the way the state allocates Electoral College votes, seeking a winner-take-all apportionment instead of the current district-based apportionment in Congress.
After the 2020 election, Republicans have offered hand-counting ballots as a possible response to unfounded claims that voting machines had been hacked, despite evidence that such a process is more expensive, time-consuming and inaccurate. According to NBC News, officials in Mohave County, Arizona, discovered last year that staff took three minutes to count a single ballot and routinely made errors when testing the hand count of votes.
“Not only is this rule not permitted by current law and in fact violates Georgia’s Black Letter Law, but it also raises very serious safety and custody concerns.”
“Manually counting ballots is an inherently slow process. Therefore, it is deeply ironic that the same people demanding immediate results are pushing for hand counting,” Ciara Torres-Spelliscy, a law professor and election advocate at Stetson University, said in an email. “While perhaps a low-population state like Wyoming, with 232,222 voters, could count all of its ballots quickly, Georgia has an electoral population of 7 million people. There is no way to quickly hand count the millions of ballots in Georgia.”
Although Georgia's new rule only requires poll workers to count the number of ballots and not every vote on the ballot, county election officials fear it could bog down the counting process.
Charlotte Sosebee, the elections director for Clarke County, Georgia, told NBC News that counting ballots late on election night could cause problems, such as poll workers disagreeing about the number of ballots.
“If we do that, will they really trust the process? I mean, what's next?” said Sosebee, who told the outlet that she has already trained her poll workers on the new rule in anticipation of its passage.
Critics have also raised alarm that the new rules for county officials are intended to hamper the certification process, as they previously refused to certify the results of recent elections and the former president and his allies have reportedly planned to overturn the 2020 result in the state undermine.
But election law experts say the new rule is beyond the authority of the state elections board and contradicts several of Georgia's existing laws on ballot counting, security and election conduct.
First, no Georgia law allows election officials in the state's thousands of precincts to break the seals of ballot boxes and hand-count ballots one at a time, as the rule describes, Houk explained. The State Board of Elections is also required by Georgia Code § 21-2-31(2) “to formulate only proposed rules consistent with existing Georgia law and conducive to the fair, lawful and orderly conduct of primaries and elections .”
“Not only is this rule not authorized by existing law and in fact violates Georgia’s black letter law, it also raises very serious security and custody concerns when numerous election officials have individual access at thousands of polling locations across Georgia’s 159 counties .” “Every ballot cast by millions of Georgia voters in the election,” Houk said, arguing that the “rule appears designed to delay the final certification of the election and needlessly raise further questions about the validity of the count.”
In an analysis for LawFare, senior editor Anna Bower wrote that a close reading of the new rule shows that, along with other controversial rules passed by the state's elections board last month, it “almost certainly fails to certify Georgia's electoral votes.” And even if certification is delayed for some reason, such delays do not create a legal loophole for Trump to overturn the election.”
She writes that the state election board does not have the authority to expand the authority of a county election board, meaning it cannot bypass the deadline set by state law for the county's election certification – which is set for 5:00 p.m. local time on the Monday after Election Day can .
Want a daily digest of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
And while hand-counting ballots the night or day after Election Day may result in some reporting delays, ranging from a few hours to a few days depending on the size of the precinct, “nothing in Georgia's hand-counting rule would prevent a county executive from doing so.” “We must report the count of machine-counted votes before the hand count of ballots is completed,” she said, noting that the rule is unlikely to take effect before the election if a legal challenge threatens.
The Georgia State Election Board also approved the hand-counting rule over the advice of the attorney general's office, which serves as its legal counsel, opening itself to such a legal challenge.
“Attorney General [Chris] “Carr made clear why these rule changes would not withstand legal challenges, and he provided a roadmap for individuals and organizations willing to file a lawsuit,” said Allegra Lawrence-Hardy, an Atlanta attorney and general counsel and senior counsel for a voting rights group On other issues, the regulation also imposes “duties and responsibilities on election officials that the electoral law does not provide for or authorize.”
Without the authority granted under Georgia law, “the board’s adoption of the rule was unlawful,” she said in an email.
Lawrence-Hardy, like Houk, argued that changing the hand-counting rule is “part of an effort to slow certification” while increasing the risk of “lost or misplaced ballots, tampering and a break in the chain of custody” to the electoral process.
Along with the “reasonable investigation” rule the panel adopted in August – which allows county election officials to conduct appropriate investigations of vote counts before certifying results – this has been adopted by the Democratic National Committee, the Georgia Democratic Party and a number from individuals challenged in court over the lack of clarity about what constitutes a “reasonable investigation” — the new rule threatens to bring “confusion” to the state’s election process, she argued.
“Combined with the board's recently adopted 'appropriate investigation' requirement, which authorizes county officials, many of whom are election deniers, to delay certification in order to conduct a proper investigation, the hand count rule could provide another reason for an election official to do so.” to deny timely certification if the hand count is slow or produces unreliable results,” she said. “The combination of new rules raises doubts in the electoral process and could lead to chaos when it comes time to certify Georgia’s election results.”
Read more
about the election rules in Georgia
