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The Georgia State Elections Board recently enacted two new rules that seem designed to allow local election officials to sabotage the state’s vote-counting process. Republican nominee Donald Trump praised the three board members who supported these new rules, all of whom previously questioned the result of the 2020 election that Trump lost, as “pit bulls fighting for honesty, transparency and victory.”
The rules seek to alter the role of local election officials known as superintendents, whose job is to gather the vote tallies from the polling places within their jurisdiction, add up the tallies, and report those numbers to Georgia’s secretary of state. For at least a century, the Georgia Supreme Court has held that this duty is “purely ministerial” and that these superintendents “have no right to adjudicate upon the subject of irregularity or fraud” in an election.
The first of the state board’s new rules, however, provides that these local superintendents must conduct a “reasonable inquiry” before certifying an election to ensure that the results are “a true and accurate accounting of all votes cast in that election.”
This upends the longstanding rule that superintendents merely perform the ministerial task of tabulating votes, and it would give these local superintendents broad new authority to search for supposed irregularities in an election and to refuse to certify an election if they claim to find some.
The second rule provides that all county election board members must have access to “all election related documentation created during the conduct of elections prior to certification of results,” although the rule does not define which documents must be provided. In much of Georgia, county election boards also act as the superintendent that tabulates the votes in that county.
To be clear, Georgia election law already allows a party that believes misconduct, fraud, or some other irregularity occurred during an election to file a lawsuit challenging the result. This allows questions about whether the initial count was reliable to be decided using the same evidentiary rules that apply in any other Georgia court case, and to be decided after parties on both sides of the dispute have the opportunity to submit briefs.
The state board’s new rules, by contrast, allow local elections officials to dig through documents looking for something they think could be an irregularity, and then to refuse to certify the results based on their own idiosyncratic conclusion that the election was not conducted properly. If Trump loses Georgia in November, moreover, his campaign will very likely lobby local officials to use this power aggressively in an effort akin to the pressure Trump and his allies put on local officials in 2020.
There are several ways the new rules could be killed before November. Earlier this week, the Democratic Party and several Democratic officials filed a lawsuit challenging the new rules. The suit claims that the rules violate state election law, which mandates that superintendents must certify all local election results by a certain date, that the new rules violate state Supreme Court decisions limiting the role of these superintendents, and that the state board also didn’t follow the proper procedure when it created the new rules.
Meanwhile, Gov. Brian Kemp, a Republican who has clashed with Trump in the past, recently asked the state attorney general for “guidance” on whether Kemp has the authority to fire the three MAGA board members who are responsible for the new rules.
So there is a decent chance that, one way or another, the new rules will not be in effect when this November’s election takes place. Should the state board’s gambit succeed, however, get ready for chaos.
Are the new rules legal?
The Democratic lawsuit against the Georgia State Election Board was only filed last Monday, so it remains to be seen how the state courts will handle this brand new suit. Nevertheless, the party’s initial court filing makes a persuasive case that Georgia law does not permit local election superintendents to delay certification of an election or to adjudicate election-related disputes.
The lawsuit’s theory of how elections are supposed to be conducted in Georgia is straightforward. After the ballots are cast, they are tallied by local superintendents on a tight deadline. These tallies are then transmitted to the secretary of state, who tabulates them himself and certifies the result to the governor, also on a tight deadline. Moreover, in a presidential election year, federal law requires the state to appoint members of the Electoral College “not later than the date that is 6 days before the time fixed for the meeting of the electors.”
One missed deadline risks triggering a chain of consequences. If a local superintendent does not meet their deadline, that could set off a cascade where more senior officials also cannot meet their deadlines — unless they exclude the votes from the recalcitrant superintendent’s jurisdiction altogether.
Election challenges may occur, but they are resolved by courts and not by superintendents, and Georgia state law requires the relevant officials to recertify an election if a successful challenge changes the result.
The Democratic Party’s legal theory is supported by multiple provisions of Georgia elections law. For starters, state law imposes a mandatory deadline on local superintendents, stating that local election results “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.” So state law doesn’t simply impose a tight deadline on local elections officials, it states that they “shall” certify an election regardless of what they think about the results.
So, while superintendents might exercise some authority in the few days between an election and the certification deadline — perhaps tracking down some precinct returns that were mistakenly not transmitted or fixing transcription errors made during the process of tabulating the election results — they may not refuse to certify once the deadline arrives. Allowing superintendents to do so might not only cause the state to miss key deadlines, it also places an extraordinary amount of power in obscure local officials who are not at all equipped to adjudicate election disputes.
This reading of state law is bolstered by other provisions of state law cited in the Democratic Party’s lawsuit, as well as state Supreme Court decisions like 1926’s Bacon v. Black, the case that established that the superintendent’s duty to certify an election is “purely ministerial.”
Georgia’s practice of instructing local election officials to simply tally up the votes and leave election-related disputes to be decided in the courts also appears to be a longstanding practice that is nearly universal across the United States.
In its lawsuit, the Democratic Party quotes a 2024 law review article on election certification, which states that “[b]y 1897, the ministerial, mandatory nature of certifying returns was so well-established that one leading treatise declared ‘[t]he doctrine that canvassing boards and return judges are ministerial officers possessing no discretionary or judicial power, is settled in nearly or quite all the states.” The Democratic Party, in other words, isn’t asking Georgia to do anything out of the ordinary. It is asking the state to run its election the same way nearly every state has since the McKinley administration.
Meanwhile, the State Election Board’s three MAGA members don’t simply appear to be upending Georgia election law. They apparently seek to upend the standard practice for conducting elections in the United States that has been commonplace since the late 19th century.
So, while it remains to be seen how Georgia’s courts will react, the Democratic suit against the State Election Board appears to be quite strong.
