The Georgia Election Board's approval of another new rule fewer than 45 days before the general election ignited concerns over its potential to disrupt the state's election administration and certification in November. But election law experts argue that while the new rule would create doubt in the election process if it takes effect, it likely wouldn't hold up against legal challenges.
The board on Friday passed a new rule 3-2 requiring one poll manager and two poll workers at each precinct to sort and hand-count all paper ballots cast the night of the election until they agree on the total. The measure was approved by three board members who have been praised by former President Donald Trump and have billed it as a necessary step toward instilling confidence in the state's election results and reducing the potential for ballot tallying errors, according to NBC News.
But Georgia law already has a "well-defined statutory structure" for collecting and counting votes, and for the certification of the tabulation by the county boards of election, the Secretary of State, and in presidential elections, the governor, according to Julie Houk, the managing counsel for Election Protection at the Lawyers’ Committee for Civil Rights Under Law.
"A hand count by three poll officials of every vote cast in person at the polls is outside of this structure and stands to disrupt the canvass and tabulation of the votes and raises concerns about the security of the ballots and transparency of the canvass and tabulation," Houk said in an email.
The board's move follows its August approval of other rules that critics have assailed for creating potential to delay the November election certification process. 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 played to Trump's benefit. A legal battle over former independent presidential candidate Robert F. Kennedy Jr.'s removal from the state's ballots delayed North Carolina's delivery of military and absentee ballots, with counties only beginning their distribution last Friday at the 11th hour. Republicans in Nebraska are also considering a last-minute change to how the state divvies up Electoral College votes, seeking a winner-takes-all allocation over the current congressional district-based apportionment.
In the wake of the 2020 election, Republicans have offered up hand-counting ballots as a possible answer to unfounded claims about voting machines being hacked despite evidence showing that such a procedure more expensive, time consuming and less accurate. According to NBC News, officials in Mohave County, Arizona, last year found that staffers took three minutes to count a single ballot and routinely made errors in the process when testing out hand-counting votes.
"Hand counting ballots is an inherently slow process. Thus, it is deeply ironic that the same folks clamoring for instant results push for hand counts," Ciara Torres-Spelliscy, a Stetson University law professor and election attorney, 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 a voting population of 7 million people. There is no way hand counting Georgia’s millions of ballots can get done with alacrity."
Though Georgia's new rule only requires poll workers to count the number ballots as opposed to every vote on the ballot, county election officials worry it could stall the counting process.
Charlotte Sosebee, the Clarke County, Georgia elections director, told NBC News that counting ballots late on election night could cause problems, like poll workers disagreeing on the number of ballots.
"If we do this, are they really going to trust the process? I mean, what's next?" said Sosebee, who told the outlet she had already trained her poll workers on the new rule in anticipation of it passing.
Critics have also raised alarms around the door the new rules open for county officials to impede the certification process given previous refusals to certify results in recent elections and the former president and his allies' alleged scheme to subvert the 2020 result in the state.
Election law experts say, however, that the new rule falls outside the bounds of the state election board's authority and contradicts several of Georgia's existing statutes on the ballot tabulation, security and the administration of the election.
For one, no Georgia law permits poll officials in the states' thousands of polling precincts to break the seals of ballot collection boxes and individually hand-count those ballots in the manner the rule describes, Houk explained. The state election board is also obligated per, Georgia code § 21-2-31(2), to "only formulate proposed rules consistent with existing Georgia law which are conducive to the fair, legal and orderly conduct of primaries and elections."
"Not only is this rule not authorized by existing law and is actually contrary to black letter Georgia law, but it presents very serious security and chain of custody concerns when numerous poll officials across thousands of polling places across Georgia's 159 counties will have individual access to every ballot cast by millions of Georgia voters at the polls," Houk said, arguing that the "rule appears to be designed to delay final certification of the election, unnecessarily interject more questions about the validity of the count."
In an analysis for LawFare, senior editor Anna Bower wrote that a close read of the new rule shows it, along with other contentious rules the state election board passed last month, "will almost certainly not hamstring the certification of Georgia’s electoral votes. And even if certification is delayed for some reason, such delays do not open up a legal loophole for Trump to overturn the election."
The state election board, she writes, does not have the authority to expand any county election board's powers, meaning they can not bypass the counties' election certification deadline — slated for 5 p.m. local time on the Monday following election day — outlined in state law.
And while hand-counting ballots the night of or day after Election Day could lead to some reporting delays spanning a few hours to a few days depending on the size of the precinct, "nothing in Georgia's hand-count rule would prevent a county board from reporting its machine-counted vote tallies before it finishes the hand count of its ballots," she said, noting that the rule is unlikely to go into effect before the election should it face a legal challenge.
The Georgia State Election board also approved the hand-count rule over the advice of the attorney general's office, which acts as its legal advisor, opening itself up to such a legal challenge.
"Attorney General [Chris] Carr was clear on why these rule changes would not withstand legal challenges, and he provided a roadmap for individuals and organizations prepared to bring a lawsuit," according to Allegra Lawrence-Hardy, an Atlanta attorney and legal counsel and senior advisor for voting rights group Fair Fight. Alongside the slate of other issues, the rule also imposes "duties and obligations on poll officials that the election code does not contemplate or authorize."
Absent the authority granted by Georgia law, "the Board’s adoption of the rule was unlawful," she said in an email.
Lawrence-Hardy, like Houk, argued that the hand-counting rule change "is part of the effort to slow down certification," while adding risk of "lost or misplaced ballots, of tampering, and of introducing a break in the chain of custody" to the election process.
Taken alongside the "reasonable inquiry" rule the board passed in August — which allows county election officials to conduct reasonable inquiries into ballot counts prior to certifying the results and has been legally challenged by the Democratic National Committee, the Georgia Democratic Party and a slate of individuals over the ambiguity in what constitutes a "reasonable inquiry" — the new rule threatens to "inject confusion" into the state's election process, she argued.
"When considered along with the Board’s recently passed 'reasonable inquiry' requirement, which empowers county officials, many of whom are election deniers, to delay certification to undertake a reasonable inquiry, the hand-counting rule could provide yet another reason for an election official to deny timely certification if the hand-count is slow or provides unreliable results," she said. "The combination of new rule-making instills doubt in the election process and could create chaos when it is time to certify Georgia’s election results."
