The Republican-controlled Georgia State Election Board on Tuesday pushed forward a proposed amendment to an election rule that would grant officials greater power to dispute election results — and election law experts are sounding the alarm.
Given initial approval in a 3-1 vote Tuesday, the proposed amendment would mandate that local election officials count ballots cast at the precinct on election night and investigate any discrepancies between the sum and vote total tallies before certifying the election, The Georgia Recorder reports. The rule would also entitle election board members to examine all election records prior to a voter certification vote should there be a discrepancy in the voting data.
The proposal, according to the Atlanta Journal-Constitution, follows recent refusals from Republican election board members to vote to certify election results despite there being no problems or doubts about the outcome. Should it be finalized next month, the proposed amendment could be in place for the November general election.
Uzoma Nkwonta, a partner at Elias Law Group who has litigated pre- and post-election disputes involving state and federal election law, called the proposal "deeply troubling."
"It would allow local election board members to subvert the certification process under the guise of meaningless document review, creating new opportunities for right-wing election vigilantes to undermine election results without justification," Nkwonta told Salon in a statement.
The board's decision to advance the rule change "continues a worrisome trend that could lay the groundwork for county election board members to refuse to certify results this November," added Allegra Lawrence-Hardy, an Atlanta attorney and the senior advisor and legal counsel for Georgia voting rights group Fair Fight.
"If the petition is implemented, county board of elections members will be emboldened to request document after document in order to delay certifying the election results," she told Salon. "New language, unsupported in Georgia’s law, allows county board members to continue asking for a never-ending stream of documents and information, providing cover for board members to refuse to certify results and potentially sowing chaos after the November election."
Three Republican board members supported the measure Tuesday, believing it would help curb the likelihood of inaccurate ballot totals requiring correction long after the election cycle ends.
During Tuesday's meeting, the petitioner, Cobb County Republican Party Chair Salleigh Grubbs argued the proposed rule would reaffirm existing state law and that, had the procedures in the rule been in place during the 2020 election, it likely would have been able to detect Fulton County poll workers' double scans of absentee ballots. The Georgia Election Board voted last month to reprimand Fulton County for violating state law when carrying out a recount of the 2020 election and appointed an independent monitor to oversee the 2024 election.
“Members of the state election board have expressed concerns about excluding entire precincts from the certification and fears that voters would be disenfranchised,” Grubbs said, according to The Recorder. “This proposed rule would not allow for that because Georgia law describes the steps that must be taken when discrepancies are found and how the returns from precincts with discrepancies will be counted justly.”
But experts argued that the new rule would, instead, upend existing election law in Georgia by outfitting board members with broad discretion over the election certification process
"Any kind of move that implies that the certification duties of election boards and superintendents in Georgia is discretionary just really flies in the face of Georgia law," said Gowri Ramachandran, the deputy director of the Elections and Government program at the Brennan Center for Justice at NYU Law.
According to Ramachandran, the Georgia Supreme Court determined around 100 years ago whether the certification duties of the superintendent would be discretionary in cases assessing precinct-level technical errors.
The court, she explained, ultimately found that the presence of a few of those errors was not a sufficient justification to refuse to certify an election "because that certification duty is mandatory" and decided that any problems or discrepancies that need to be investigated should be referred to appropriate channels, while any legal questions about what should or should not count should be hashed out in the courts.
Lawrence-Hardy also noted that existing Georgia law limits pre-certification investigation by the superintendent given the limited certification timeline, allowing under O.C.G.A. § 21‑2‑493(b) the superintendent to only examine documents related to a precinct with a discrepancy. Grubbs' petition, she said, allows board members to parse through all election records from every precinct regardless of the identification of any discrepancies all before certification.
Sara Tindall Ghazal, the Democratic party election board member, voted against a rule change on the grounds that it would contradict current policies requiring local officials to certify elections regardless of any inaccuracies are present.
Certifying election results is a way to create a record of vote totals in an election, she said, and any unresolved issues can be investigated by the district attorney, the state election board and the courts.
“We’ve seen elections overturned on numerous occasions because there were votes that were not authorized,” she said, according to The Recorder. “They were certified because they had to be certified. It went to a court, the court overturned the election and we ran a new election.”
The change the new rule proposes is "particularly concerning" given the recent instances of Republican board members refusing to certify results, which perpetuates "a dangerous narrative that erodes public trust in our democracy," Nkwonta said.
"It's just dangerous to create any sort of doubt and confusion about what that certification function is and whether it's discretionary or not because, as we saw in 2020, there's maybe a temptation for partisan actors to put pressure on the people who are tasked with certifying, put pressure on them to either not certify or certify the wrong results," Ramachandran told Salon.
Aunna Dennis, the executive director of voting rights and government watchdog Common Cause Georgia, argued that the adoption of the proposal also shows "a clear disregard for the concerns" of citizens "who have trusted the certification process thus far."
“Unfortunately, our certification process will move even slower than it previously has," she told Salon. "On top of that, with the ability of the public to issue mass voter challenges online, many communities that were already targets will bear the brunt of what the [State Election Board] has just permitted.”
The Georgia State Election Board declined a request for comment. Grubbs did not immediately respond to an emailed request for comment.
What the new rule neglects to consider are the number of other checks that exist in Georgia that ensure votes are counted and counted accurately, Ramachandran said. Among them are the reconciliation process between election administrators are required to conduct between a vote cast and the voter check-in files, the tabulation audits that serve as a check on the machines tabulating tallies correctly and the ability for candidates to contest an election in courts.
Those specifics, she said, are most crucial for voters to understand in light of the new proposal.
"The foundation for obstructing certification of election results is being laid here in Georgia," added Lawrence-Hardy. "We’re seeing the national strategy take shape in Georgia and in battleground states like Arizona, Michigan, and Nevada, where there have been recent efforts by Republican elected officials to delay or refuse certification."
As such, voters should recognize their votes "are critically important," she continued. "The best way to ensure election results are certified in a timely manner is with large turnout and decisive margins."
