Can They Really Steal the Election in Georgia?

The State Board of Elections in Georgia is about to run straight into a high legal wall

Image Credit: 11Alive

In an earlier piece, I discussed a plan by the MAGA right to launch the Big Lie, version 2024, and why I believed it would ultimately fail. A repeat of what Trump attempted in 2020 was, again, unlikely to succeed because, among other things: 

• Trump isn’t in power and doesn’t have the same levers of government to pull;

• The Electoral Reform Count Act of 2022 made it far more difficult to concoct “fake electors” and raise objections and overturn the election results in Congress; and

• Democratic electoral successes during the 2022 midterms have put democracy-defending governors, secretaries of state and attorneys general in place in most of the key swing states.

Together, these raise significant obstacles to any national plot to stage another coup based on state-level shenanigans.

Then came widely shared reports in Rolling Stone and The Guardian that a network of election deniers, headed by people like attorney Cleta Mitchell, had over 70 operatives in place at the county and election board levels across numerous states. Of highest concern was the fact that Big Lie adherents were now in charge of the Georgia State Election Board and had begun passing new “rules,” in excess of their authority and in contravention of state law, that could cause chaos and delay, thwarting the timely certification of that state’s vote.

Indeed, the Georgia state Attorney General’s office even issued a letter warning that the actions taken by the MAGA-controlled State Election Board were unlawful, but the Trump-aligned majority on the board paid the AG no mind and proceeded to pass new rules anyway, while Trump publicly praised their efforts.

In today’s piece, I want to offer some reassurances to readers that the shenanigans of the Georgia State Election Board will not prevail once legal challenges are heard and adjudicated. This is based on a long line of authority that the state Supreme Court is very likely to uphold—and, I should add, that the U.S. Supreme Court shouldn’t and very likely won’t have any say over. Everything that these MAGA-aligned officials are attempting is likely headed to failure in the courts, and none of the measures they have put in place is likely to disrupt or delay certification of Georgia’s election and the awarding of its Electoral College votes to the winner of the popular election in the state.

A note before I dive in: This analysis is based on the legal analysis of elections experts, and it does not address questions such as physical disruptions, terrorist threats, or vote suppression. The first two represent real risks that law enforcement is aware of and is preparing for. The latter is well-documented and could impact both turnout and the final vote count should otherwise qualified and registered voters get turned away at the ballot box due to voter roll purges or similar dirty tricks. 

For today’s purposes, my analysis assumes that out of all votes cast in the state of Georgia, Kamala Harris is the popular vote winner, but MAGA loyalists will attempt to challenge or delay the count under the new rules the Election Board has adopted. What would that look like, and how would that go?

The new “rules” passed by the Georgia State Election Board

Before we can assess the chances of success of any legal challenges in the Georgia election at, say, the county level, we need to lay out and understand the rules that the Board actually passed. There is significant misunderstanding, even among reporters, about what the rules actually do and don’t do, even taken at face value. The summary below is based on this analysis, which is both excellent and thorough, by Anna Bower at Lawfare. It covers three rules: The “Reasonable Inquiry” rule, the “Examination” rule, and the “Hand Count” rule.

Let’s take these one by one.

“Reasonable Inquiry” Rule

On August 7, just under two months ago, the Board redefined what it means to “certify the results” of an election. The key change was the inclusion of the words “reasonable inquiry” into the definition:

“Certify the results of a primary, election, or runoff,” or words to that effect, means to attest, after reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.

Critics worried that the inclusion of “reasonable inquiry” into the rule—a term that was undefined—would embolden and empower county-level officials to investigate allegations of fraud before they certify results, leading to huge delays.

Even Norm Eisen, whose analysis I normally agree with, was among a group of legal analysts who warned,

One of the two new rules passed by the board on Tuesday lets local elections officials halt vote-counting and delay or even outright refuse certification if they contend there are any irregularities, essentially making the certification of election results discretionary. (Georgia law states in multiple places that local election board officials shall perform their duties — meaning their duties are mandatory, not discretionary).

Hold on. We need to take a step back and ask whether the rule really does this. For starters, the Board simply doesn’t have the power to grant county-level officials authority to extend certification deadlines past the statutory deadline. In fact, it just admitted this in open court this very day. 

In standard legal hierarchy, statutes are greater than administrative rules. That means generally that no agency can ever make rules that go beyond what the authorizing statute permits.

As Bower explains in plain terms,

[T]he role played by a local election board during the certification process is like that of a scorekeeper in a football game. The basic job is to ensure that all the points have been recorded and that the arithmetic adds up. It’s not up to the scorekeeper to determine, say, whether a touchdown was caught out of bounds. We leave those calls up to other officials, like a referee.

So who are the referees? The courts, for starters. If a candidate like Trump wants to claim there was fraud, he can take his complaint to court. He can’t, however, go to county-level officials. They don’t have the power to make calls like that.

So what kind of “reasonable inquiry” does the statute (not the new rule) allow for? Here’s an example from the statute itself, which makes perfect sense for a county board of elections superintendent to undertake. (You can skip past this legalese to my explanation below it if you prefer.)

(b) The superintendent, before computing the votes cast in any precinct, shall compare the registration figure with the certificates returned by the poll officers showing the number of persons who voted in each precinct or the number of ballots cast. If, upon consideration by the superintendent of the returns and certificates before him or her from any precinct, it shall appear that the total vote returned for any candidate or candidates for the same office or nomination or on any question exceeds the number of electors in such precinct or exceeds the total number of persons who voted in such precinct or the total number of ballots cast therein, such excess shall be deemed a discrepancy and palpable error and shall be investigated by the superintendent; and no votes shall be recorded from such precinct until an investigation shall be had. 

If your eyes glazed over reading that, it basically means that if the superintendent sees that the total votes registered exceeds the number of voters or ballots, then they should say, “Hold up, something isn’t right.” That’s when they should investigate, because the math isn’t right. Makes total sense.

Under Georgia law, the superintendents have to get the basic math right and certify the election no later than close of business on the Monday after the election. This year, that date falls on a federal holiday, so the deadline is November 12 at 5:00 p.m.

This is a mandatory deadline. If they miss it, they are in violation of state law. And I’ll explain later what happens if someone tries it.

“Examination” Rule

On August 19, the Board passed another rule as part of a package of rules. That new rule states, 

Board members shall be permitted to examine all election related documentation created during the conduct of elections prior to certification of results.

Critics point out that such a broad right of examination would lead to mischief and delay because it applies to “all election-related documentation,” which is pretty damn broad.

Couldn’t bad faith election officials make all kinds of demands for documentation, gumming up the final certification and delaying it past the statutory deadline? 

From a legal standpoint, the Board is in the same place it is with the “reasonable inquiry” rule. Nothing in the statute allows for document requests and examinations to delay the actual certification. County election officials can claim they can’t certify the results because they haven’t gotten a chance to see everything—a favorite tactic of election deniers, who leverage “missing” records into conspiracy theories. But that won’t change the fact that they are legally obligated to certify the county-level election results no later than end of business on November 12.

Now, you may be wondering, “What happens if they still refuse?” I will get to that point later, but know for now that there is a straightforward process to force wayward or bad-faith officials to do their ministerial duties, and it can happen very quickly in the courts.

The “Hand Count” rule

On September 20, the Board passed yet another rule that its MAGA members no doubt hope will gum things up. The rule would require a hand count of the number of paper ballots following the conclusion of voting in each precinct.

Many people are focusing on the “hand count” part of the rule and thinking, “Oh, God. A hand count is going to delay things for sure past the deadlines!”

Notice, though, what the rule isn’t. It actually doesn’t require a hand tabulation of the votes. A ballot has choices on it, including for president at the top of the ticket. The rule does not require workers to log how voters voted for president. It only requires a count of the number of ballots cast.

It doesn’t actually take that long to hand count the number of ballots cast. And some states like Illinois already require hand counting of ballots. So we’re looking at a few hours to maybe even the next day to finish the hand count before certifying. Meanwhile, the actual votes, scanned by machine, will have been counted by computer, and those results presumably will be made available even if preliminary.

A lot of this may go away

Following the adoption of these new rules, the Democrats sued in court because the opportunity for mischief went way up in their wake. A bench trial on that suit commenced this morning in Fulton County, Georgia.

The suit asks for a declaration that election superintendents have no discretion to delay certification past the statutory deadline or otherwise refuse to certify results. Specifically, plaintiffs ask the court to declare that “absent a valid judicial order to the contrary, election superintendents must certify the results of the November 5, 2024 election no later than 5:00 P.M. on November 12, 2024.”

The Democrats cite several Georgia election cases to argue, correctly, that “Georgia law has long treated election certification as non-discretionary.” They note, “If election officials have concerns about possible election irregularities, they are free to voice those concerns at the time of certification, so that they may be considered and adjudicated, by judges, in any subsequent election contest.” But, the plaintiffs argue, “they may not point to those election irregularities (or anything else) as a basis for delaying certification or denying it entirely. Absent a valid court order, certification by the deadline is mandatory.”

Judge Robert McBurney is now looking at all of this and will rule shortly. During the proceedings that began this morning, the State Election Board’s lawyers actually agreed that the certification deadline is mandatory and cannot be extended beyond the statutorily-imposed date of Nov. 12 at 5 p.m. They also agreed that no one has the power to change the mandatory nature of the certification. 

Given these concessions, Judge McBurney asked why he would still have to issue a ruling about the board’s “reasonable inquiry” rule. Plaintiffs argued that a declaration is still necessary because the new rules inject uncertainty into the process and could lead county officials to determine that they can’t certify the results without a reasonable inquiry. Plaintiffs would need to try and legally compel any wayward officials to do their jobs on the night of November 12, which is hardly ideal.

Defendants argued that a declaration isn’t necessary today because, well, the law is what the law is, and no one in the room disputes it. They really don’t want such a declaration from the court.

Even without a clarifying declaration by Judge McBurney, these concessions by the Board could be quite impactful. If any election official actually attempts to go past the deadline by arguing a right to do so under the Board’s “reasonable inquiry” rule, that effort would face plain admissions, made in open court by the Board, that no one at the county level actually has the power to do so and that the deadline stands.

Further, apart from these admissions in court, any future court weighing whether to compel an election official to certify the results by the deadline would face some serious statutory and case precedent all stacked against them. Let’s look at that next.

Election boards don’t have the authority to make big decisions

As the Board conceded today, all of the statutory language around the deadline to certify is indeed mandatory in nature. For example, the statute (with the head-spinning designation of O.C.G.A. §§ 21–2–493(k), 21–2–497) says this quite plainly:

Such returns shall be certified by the superintendent not later than 5:00 P.M. on the Monday following the date on which such election was held and such returns shall be immediately transmitted to the Secretary of State.

Not may, not should, but shall.

Georgia courts also have long made clear that local officials are required to certify rather than delay results. As the Brennan Center for Justice noted, in the case of Tanner v. Deen, 108 Ga. 95, 101 (1899), the Georgia Supreme Court explained that local election officials “were not selected for their knowledge of law” and therefore had no authority to make legal determinations as to the validity of election returns. Similarly, in Bacon v. Black, 162 Ga. 222, 226 (1926), the Court held that “[t]he duties of the managers or superintendents of election who are required by law to assemble at the courthouse and consolidate the vote of the county are purely ministerial.”

That’s all pretty clear and straightforward. But just to drill the point home, the facts of the Tanner case align closely with potential county-level challenges today, and they are quite colorful, too!

It was the fall of 1898 in Coffee County Georgia, which has had more than its fair share of election controversies given how small and rural it is. Running on the Populist ticket was Elijah Tanner, a former Confederate soldier, and on the Democratic side was the Reverend John Vickers.

The race was close, and the count showed Tanner squeaking by Vickers. But Democratic members of the election board cried foul and refused to certify the results, saying that votes from one precinct were invalid and should not be counted. That conveniently would throw the race to Vickers! 

The Populists sued and the case went all the way up to the Georgia Supreme Court. The justices held that the board had no authority to rule on the legal validity of the ballots. Its job was simply to count and certify the results. At most, it could report abnormalities to the courts. The board was ordered to reconvene and certify Tanner’s win.

Nothing in the revisions to Georgia election law since Tanner and other cases has changed this fundamental understanding of the role of county election officials. That means the rulings remain binding upon the lower courts.

But what if county officials ignore court orders?

The past two years unfortunately have demonstrated that election officials who are adherents of the Big Lie will continue to throw wrenches into the gears until they are ordered to stand down. We should expect that some local county officials, steeped in false MAGA conspiracies about stolen elections, will still insist it is their patriotic and even constitutional duty to refuse to certify election results they disagree with.

What then?

There’s a process in place called a “writ of mandamus.” I’ve said before that this sounds like a Harry Potter spell, but it essentially is an order from a court compelling an official to do something. Georgia law lays it out in O.G.C.A. § 9–6–20:

All official duties should be faithfully performed, and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights….

Any interested party, including a voter, may bring an action for a writ of mandamus against a bad-faith Georgia county election superintendent who refuses to certify a county’s election results. Such a suit would come quickly and hit hard. And if an election official still refuses, under Georgia law a court can appoint someone else to perform the action!

Even if Democrats had to file suit on the evening of November 12, there would be plenty of time for such a writ to issue and for the state to still make its federal deadlines for certification. Both Governor Brian Kemp and Secretary of State Brad Raffensperger, who are Republicans, showed zero appetite in 2020 for going along with false election claims or capitulating to Trump’s demands. We should expect that they will follow the law here as well. Indeed, Raffensperger has expressly informed county officials that they are required by law to meet the November 12 deadline and that his office does not anticipate anything other than that.

So if the rules are toothless, why did they change them?

One last discussion point. The law makes pretty clear that the new rules promulgated by the State Election Board of Georgia are likely invalid and in any event can’t change the requirement for county-level officials to certify by the statutory deadline. Their lawyers even conceded this point. So why pass them at all?

My best guess is that the rules give political, not legal, cover to election deniers. For example, Trump almost certainly will claim that any ruling forbidding county officials from conducting “reasonable inquiry” into the ballots as grounds to delay certification is evidence of a massive cover-up and Deep State conspiracy.

He will likely cite the “examination” rule to argue that failures to provide all manner of “documentation” including software code from a certain county’s machines are evidence that the whole thing is rigged. 

And he will leverage any delay from mandatory hand counting of ballots, especially in the most populated (and heavily African American) counties, assuming that is still a requirement in the rules come November 5, as further evidence that the Democrats are cheating.

Republicans likely will lose all of these arguments in court, just as they did in 2020. But we should also be prepared to fight these battles in the court of public opinion. 

Trump will try to sow enough confusion and doubt to pressure members of the GOP in Congress to refuse to certify the election results. But on this, too, he likely will fail. It takes a majority of both chambers of Congress to sustain an objection raised to a state’s electoral count, and there are still enough non-election-denying Republicans, voting along with all Democrats, to prevent this.

This isn’t to say it won’t get ugly, and that massive lies and even incitements to violence won’t happen. But from where I sit, the legal system is poised to hold against the legal challenges MAGA Republicans will raise, and Trump will have even less success than he did in 2020 when it comes to attempting to overturn the election results.

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