All Eyes on the Election Board in Georgia

We now know how the Trump campaign intends to steal the 2024 election.

Republican presidential nominee, former U.S. President Donald Trump takes the stage with his Republican vice presidential running mate, U.S. Sen. J.D. Vance (R-OH). Photo by Joe Raedle/Getty Images.

In a prior piece, I wrote about how an attempt by Trump and his allies to steal the 2024 election would run headfirst into state-level obstacles, particularly in the battleground states currently controlled by the Democrats. I predicted that their 2020 playbook, in which they sought to convince GOP-controlled state legislatures to undo the certifications of the elections in their states, wouldn’t get very far in 2024. 

That’s because under the Electoral Count Reform Act passed by Congress and signed into law by President Biden, a state’s final official certification is left to its governor, and there are Democratic chief executives now in Wisconsin, Michigan, Pennsylvania, Arizona and North Carolina. Moreover, there are Democratic secretaries of state and attorneys general in most of the battlegrounds now, too. That’s all thanks to Democratic successes in the 2022 midterms, where election deniers lost across the board in the swing states.

But Georgia is a somewhat different matter. There, a radical GOP still has a grip on the state legislature. A GOP fake elector from 2020 sits as Lieutenant Governor. And importantly, the State Board of Elections is now stacked with a majority of election deniers and bad faith actors—and they have now made their move.

In today’s piece, I focus on the state of Georgia, which has become a laboratory for the right on how to steal an election. I will briefly walk through what happened in 2020 to provide context for what is happening today. Then I’ll focus on the recent shenanigans of the State Board of Elections and how their actions seek to help Trump in November. Finally, I’ll lay out what the response to this has been and where it leaves us presently.

Georgia went through some things in 2020

Proponents of the Big Lie learned back in 2020 that our electoral system at the state level had multiple points of vulnerability. And they attempted to exploit each one, ultimately unsuccessfully.

A first vulnerability was public opinion. Trump allies such as Rudy Giuliani spread false claims of vote tampering by accusing election workers like Ruby Freeman and Shaye Moss of stuffing ballot boxes. To push their false claims, the Trump campaign used selectively edited video clips. The doxxing of these women unleashed threats of MAGA violence and forced them into hiding. Coercive pressure by Trump-aligned operatives followed, where Freeman was threatened with harm unless she retracted her assertion that she did nothing wrong. Fortunately, she held firm, and both women are heroes for standing up for democracy.

A second vulnerability was the GOP-controlled legislature. The state’s certification of the election, at least in theory, could have been undone by the legislature if it had been called back into session in December 2020. That was indeed what former Justice Department official, and now indicted criminal defendant, Jeffrey Clark sought to do when he suggested the Justice Department signal to Georgia that it reopen the question. That almost happened, but a threat of mass DoJ resignations, led by then Acting Attorney General Jeffrey Rosen, put an end to that effort.

A third vulnerability was the Secretary of State’s office, which was conducting recounts and, with the right pressure, could help fuel false narratives of election fraud. Trump himself sought to cause this in his infamous call to Georgia Secretary of State Brad Raffensperger, in which he asked him to “find” 11,780 votes, one more than was needed to flip the statewide election back to his column. Raffensperger refused.

Had less principled people been in power at any one of these points, the results of the Georgia election might have been called into serious doubt. And that would have given Trump something to hang his hat on when Congress convened to count the Electoral College votes on January 6, 2021. 

What the Trump campaign and its allies took away from 2020 was that they really needed more compliant and less principled state officials to do their bidding. And they weren’t going to find that in Governor Brian Kemp or in Secretary of State Raffensperger. So they went one level down, and now appear to have gotten exactly who they want on the Georgia State Election Board.

What gives with the Georgia State Election Board?

The far right has had a lot of time to prepare for 2024. There are whole organizations devoted to undermining free and fair elections in the U.S. led by some dangerous extremists. As ProPublica reported, among them are

a Heritage Foundation lawyer (Hans von Spakovsky) who has led efforts for stricter voting laws nationwide for decades; Ken Cuccinelli, a former Virginia attorney general and the chairman of the Election Transparency Initiative, a group advocating for Republican priorities in election law; and Cleta Mitchell, the head of the Election Integrity Network, a nationwide organization that has challenged the legitimacy of American elections.

Keep Spakovsky, Cuccinelli and Mitchell in mind, because we’ll come back to them in a bit.

Elections are run by county officials, whose jobs are intended to be ministerial in nature. That is, they are there merely to count the vote and certify it, not to inject their own subjective views into the process. Once votes are certified, they can be challenged in court, but these county level officials aren’t supposed to render any judgments or delay the count or certification in any way. 

Anti-democratic extremists are trying to change that. Because the State Election Board in Georgia has the power to make election rules, investigate potential fraud and offer recommendations to lawmakers, if election deniers could grab control of that Board, they could try to change how the certification process happens at the county level.

And that’s exactly what the MAGA-controlled board just voted to do. As the Atlanta Journal-Constitution reported,

Under the new rules, county election board members are allowed to examine all election-related documents and certify elections only after discrepancies are investigated. If errors are discovered, election boards must determine a method to compute votes. The rule also calls for county election boards to hold a meeting to verify results on the Friday after Election Day, before the deadline for the return of overseas and military ballots.

In addition, the board required county election boards to make a “reasonable inquiry” before certifying elections, without stating what’s reasonable or what the inquiry would involve.

This new system is ripe for abuse and delay. County level officials could simply refuse to certify results claiming “discrepancies,” which happen in minor ways in almost every election. And by requiring a vague “reasonable inquiry” before certification, that could create chaos as different standards get applied in different counties and results are held up by election deniers citing bogus and unfounded claims, just as we saw in 2020.

Indeed, it was this very play Trump tried to run at the national level in 2020 by attempting to convince then Vice President Mike Pence to violate his constitutional duties and act in more than just a ministerial way in counting the Electoral College votes. If Pence had been entrusted with the right to examine and make “reasonable inquiry” of the election before certifying, he almost certainly would have held off on announcing the winner, giving Trump the opening he needed.

What happens if Georgia fails to certify its results?

A delay of county level certifications could push off legal challenges. And a wide refusal by GOP county level officials to recognize the election as legitimate could in theory cause enough chaos that the state could miss its deadline to certify a slate of electors to be counted by Congress. 

Trump and his allies want to take Georgia off the board in case it goes blue again. The effect upon the Electoral College math would be profound. Were Trump to prevail in Pennsylvania, but still lost all of the other swing states, as he did in 2020, he would need to prevent Georgia from moving to Harris’s column. 

In such a scenario, a contested Georgia election would mean neither side reaches 270 Electoral College votes, throwing the election to a vote by the Congressional House Delegations and therefore to GOP control.

This map, courtesy of 270 to Win, shows the stark math of that. With Pennsylvania in the red column but Georgia in doubt, Harris would be shy of 270, while Trump would be at 254, or exactly 270 if Georgia was certified for him.

This math explains both why Trump is so laser focused on Georgia and why he is pouring so much money into advertising there. If he can keep the Georgia election close and eke out a win in Pennsylvania, it won’t matter what happens in the rest of the country.

A shake-up at the the State Election Board

In order to get the Georgia State Election Board to make a rule change of this magnitude, the far right had to find a way first to shake up its composition. This wound up being a long play, as both ProPublica and the Atlanta Journal Constitution reported. This next discussion summarizes that reporting.

First, during the 2021 legislative session, lawmakers stripped Raffensperger of his position as the designated chair of the Board and gave themselves that power instead.

Then on May 9 of this year, after an election-denying GOP election board member in Fulton County made a request to grant county level officials more power, the Board began considering a new rule. But they had a problem: The Republican board member, Edward Lindsey, called the rule illegal. 

Not to worry! The DeKalb County GOP then pressured Lindsey to resign, citing his “conflicts of interest”—a rather ironic claim given the many conflicts that have since arisen with other Board members. 

That left an opening for the GOP Speaker to fill with a loyalist named Janelle King, who is a conservative media personality with no experience in elections administration and who once tweeted “I have questions” about the 2020 election.

With Lindsey gone and King to replace him, the Board was now stacked with a majority of election deniers.

They got busy this summer. On July 9, they advanced a proposal allowing local election officials to review documents prior to certifying the November presidential election. Three days later, on July 12, the Republican members convened and advanced additional proposals, including expanding access to partisan poll watchers. They held their meeting despite a warning from the Georgia Attorney General’s office that it could violate the state’s Open Meetings Act.

Sure enough, they got sued for illegally meeting. American Oversight filed a lawsuit alleging the meeting was improper, and 12 days later, on July 30, the Board unanimously voted to reconsider its actions.

Enter Donald Trump. In a speech in Atlanta on August 3, Trump openly praised three of the Board members. Per reporting by local news station 11alive, Trump was effusive, referring to them as “pit bulls” and calling them out by name.

"I don’t know if you’ve heard, but the Georgia State Election Board is in a very positive way," Trump told thousands of supporters at an Atlanta rally on Saturday, raising the election board's profile. 

"They're on fire. They’re doing a great job. Three members," Trump said, name-checking new Republican-appointed members Janice Johnston, Rick Jeffares and Janelle King.  Johnston attended the rally. When recognized by Trump, she turned and waved to the cheering crowd.  

That prompted pushback from Democrats. Lawmaker Sam Park from Gwinnett County, who is the minority whip, said, “I think it’s incredibly concerning” that “a majority of the Georgia State Election[] Board is demonstrating clear partisanship.” The board’s code of conduct expressly states, “Members shall be honest, fair and avoid any appearance of conflict and/or impropriety.”

In that same speech, Trump also blasted Governor Kemp, calling him “very bad for the Republican Party” because “he wouldn’t do anything” to establish a special legislative session to “go over” the 2020 election results. “We want to go over the election. We want to look because there’s too many things.” Kemp has refused to sign Trump-backed legislation that would re-examine the 2020 votes.

Three days after the speech, those same GOP members voted to approve the new and dangerous rule requiring a “reasonable inquiry” before certifying election results. Then on August 7, the board’s GOP majority (minus Kemp’s appointee) voted to reopen an investigation into Fulton County’s 2020 presidential recount. 

On August 19, the Board gave its final approval to the new rules.

Whether the Board reversed its July 30 decision out of fear of reprisal from Trump, or if they did so in order to placate his clear desire to see the new rule implemented, hardly matters. What we do know is that less than a week after voting to reconsider its actions, the extremists on the Board decided to plow ahead.

As ProPublica reported, the resubmission of the rule came with the help of key election-denying organizations. The “originator” of the rule was Bridget Thorne, a Fulton County GOP Commissioner. Thorne insisted that claims of the rule’s illegality were an attempt to “scare” her. “I went and I talked to the lawmakers,” she said, “and they didn’t see anything wrong with my rules.”

She also got advice from the three lawyers I mentioned earlier: Hans von Spakovsky, Ken Cuccinelli and Cleta Mitchell. We should therefore be under no illusion that this isn’t part of some larger scheme to undermine elections across the country.

Gov. Kemp considers action

At some point, Trump (or someone advising him) likely realized that antagonizing Gov. Kemp was not a solid move, especially given his potential influence over the composition of the State Election Board. On August 22, and without explanation, Trump tweeted a reversal of his prior condemnation of Kemp:

Thank you to @BrianKempGA for all of your help and support in Georgia, where a win is so important to the success of our Party and, most importantly, our Country. 

I look forward to working with you, your team, and all of my friends in Georgia to help MAKE AMERICA GREAT AGAIN!

That reversal made little sense until you view it within the context of the coming fight over the State Election Board. 

Over the weekend, on August 25, a group of legislators, clergy and civil rights leaders urged Gov. Kemp to take action against the extremists on the Board. It appears that the request is being taken seriously, especially given how the new rule passed by the Board falls so close to the November election. 

Gov. Kemp’s office has asked for guidance from the Attorney General on whether he has the authority to remove members of the Board, stating that “due to uncertainty regarding whether this office has authority to act under Code Section 45-10-4 in response to these complaints, we have sought the Attorney General’s advice regarding the application of the statute to the letters. We will respond following receipt of this advice and further evaluation of the letters.”

Some experts were quick to point out that Kemp does indeed have this power following a hearing on the merits of the charges held with at least 30 days notice to the Board member.

Cody Hall, an advisor to Gov. Kemp indicated on the Politically Georgia podcast on Monday that the governor may have objections to the timing of the rule change—a ground that would provide a politically neutral way of getting rid of it. “We have to be very careful about changing election procedures by rule so close to the election,” Hall said. “If you take a trip back four years ago there were a lot of Republicans upset about the SoS changing election law by rule….”

Democrats file suit

The Harris campaign and the DNC aren’t waiting for Gov. Kemp to take action. On Monday, the DNC and the Democratic Party of Georgia filed a 44-page lawsuit claiming the new rules could lead to disputes over the vote count and potentially delay certification. 

“Certifying an election is not a choice, it’s the law,” said Quentin Fulks, principal deputy campaign manager for the Harris-Walz campaign. “A few unelected extremists can’t just decide not to count your vote.”

The DNC says the lawsuit was filed to ensure that Georgia's State Election Board “doesn’t turn a straightforward and mandatory act of certification into a broad license for any county board member to try and delay or block the certification of election results and the will of Georgia voters.”

Specifically, as election lawyer Marc Elias noted in a post from Democracy Docket, 

The DNC and the other plaintiffs asked the state court to declare that under Georgia law, the certification of election results is a mandatory duty and election superintendents don’t have discretion to delay certification or not to certify at all. Also, the Democrats urged the court to mandate that Nov. 5 election results must be certified by 5 p.m. on Nov. 12.

If the two rules mentioned in the lawsuit are not interpreted within the context of state law that makes certification mandatory, then the court should block the implementation of the rules and rule that they are “an invalid and unlawful exercise of [the board’s] authority,” the plaintiffs argued in their complaint.

In short, the fight over Georgia’s election and certification processes has moved from right-wing chicanery into open litigation. In many ways, and rather fittingly, it was Trump’s very elevation of the question and his public championing of the bad faith members of the Board that drew national attention to the inner workings of the body. 

It is important that such malfeasance not only be highlighted but stopped in its tracks so that copycat efforts in other states don’t get very far. Election deniers are already in place in some 70 counties around the country, according to Elias, and they are no doubt carefully watching what happens in Georgia. State level officials, including governors and secretaries of state, still wield important power when it comes to things like election boards and county level election processes, so how far the election deniers around the country will dare to go could depend heavily on how far they get in Georgia.

Election integrity defenders are now fully aware of the game that the Heritage Foundation and groups like the “Election Transparency Initiative” and the “Election Integrity Network” are playing at the state and county level. That is a relief, because with early voting starting in just a few weeks, the stakes and the consequences could not be higher.