Given Georgia’s status as an important battleground state, it may be tempting to view the latest election litigation there in isolation. The stakes are high enough in the Peach State alone: The Georgia State Election Board unveiled rules this summer that could threaten to wreak havoc in this year’s presidential election. But what exactly is happening in Georgia offers insight into trend lines in other parts of the country.
One of the new rules in Georgia focuses on county boards, traditionally ministerial and technocratic bodies of civil servants tasked with simply counting votes. The rule orders the county boards, however, to conduct an undefined and unprecedented “reasonable inquiry” before certifying election results. Another rule gives board members similarly novel powers to “examine all election-related documentation created in the conduct of elections.” In tandem, the two rules would appear to vest partisan-affiliated local administrators with an expansive, if not freewheeling, ability to question, investigate, delay, or even nullify election results, and this power-grab seems to have won the enthusiastic endorsement of the Republican Party, despite some significant pockets of intra-GOP resistance including from the Georgia Secretary of State. Exactly a month after the board unveiled the then-proposed “reasonable inquiry” rule, former President Donald Trump praised the three Republican board members by name — Janice Johnston, Rick Jeffares and Janelle King — for their efforts in helping to pass the new rule.
“They’re on fire. They’re doing a great job,” Trump told a cheering crowd in Atlanta on Aug. 3, describing the board members as “all pitbulls fighting for honesty, transparency and victory.” Those three members passed the “reasonable inquiry” rule on Aug. 6, three days later.
The MAGA ties to the “reasonable inquiry” rule do not end there. Fulton County commissioner Bridget Thorne, a Republican who reportedly spread election fraud lies about the 2020 presidential race, originally submitted it, claiming to have done so in her capacity as a private citizen. Earlier this month, the Republican Party’s state and national organizations sought to intervene in support of the Board’s rules, arguing in a motion that they would be “harmed by certification of inaccurate election results” and “lawsuits that upend the administration of Georgia elections.” The RNC’s attorney William Bradley Carver did not respond to a request for comment seeking an explanation of what powers the party believes county boards should have across the country — and what constraints, if any, there should be on their actions. According to The Associated Press, Thorne played down the effects of the rule that she spearheaded by claiming that it “simply offers guidance on following the existing law.”
Others take a more wary view of the drafters’ intentions.
On Aug. 26, the Democratic Party’s state and national entities joined 10 Georgia voters in filing a petition seeking to block the rules’ ability to provoke electoral “chaos.” Traditionally, courts have adjudicated election contests and fraud allegations, but Georgia’s board apparently offered an alternative end-run to this process through county officials. (The state board plays no direct role in the certification process.)
“These rules ask election officials to approach their duties as though they have discretion to delay or refuse certification of election results,” the challengers wrote in a motion seeking to expedite the case to seek a ruling before Election Day. “Georgia law permits no such discretion. But if officials interpret the new rules as the drafters assert they should, the officials could (unlawfully) delay certifying an election to complete a ‘reasonable inquiry’ or examine documents—or could even (unlawfully) refuse to certify at all.”
The “reasonable inquiry” rule’s challengers emphasize that time is of the essence.
“A delay or failure to certify at the county level would run headlong into the Secretary of State’s own certification obligations, potentially interfering with binding federal deadlines […] and could result in the Secretary certifying results without counting ballots from the affected county,” their petition states. “That would mean mass disenfranchisement of eligible, registered Georgians.”
Aside from its ramifications in Georgia, the DNC’s lawsuit points to a trend: Emboldened by Trump’s attempts to subvert the 2020 presidential contest, once-modest public servants tasked with a clerical yet crucial role in election administration have tried to anoint themselves as the arbiters of the races within their jurisdictions — and grown into a national movement.
No Longer “Without Fanfare or Controversy”
Georgia’s “reasonable inquiry” regime did not crop up in a vacuum.
“For many decades, the certification of election results was a straightforward administrative process that was faithfully followed by local officials without fanfare or controversy,” the Democratic Party’s petition states. “But, in recent years, efforts to delay or impede the certification of election results have become increasingly common. During the 2020 election cycle, these efforts culminated with the January 6, 2021 attack on the U.S. Capitol.”
Since the Capitol insurrection, certain partisan members on county boards across the country have contested election results they disapprove of with every passing race until being ordered to certify the results through emergency litigation.
During primary elections in 2022, the pattern occurred in New Mexico’s Otero County, Arizona’s Cochise County and no fewer than three counties in Pennsylvania, where the Secretary of the Commonwealth, Al Schmidt, has been targeted by Trump’s election denialism. Schmidt, who was formerly Philadelphia’s only Republican commissioner, testified two years ago before the House Jan. 6 Committee about the threats he received after debunking Trump’s false claims that dead people voted in the 2020 election. “The threats became much more specific, much more graphic, and included not just me by name, but included members of my family, by name, ages, our address, pictures of our home – every bit of detail you can imagine,” Schmidt told the Committee on June 13, 2022.
Such efforts at intimidation have not slowed Schmidt’s fight against election denialism. His office wrote in an email to Just Security: “The Department of State is working closely with our county partners to ensure the 2024 general election runs smoothly and to minimize opportunities for bad-faith actors to unnecessarily delay certification at the county or state level.”
By the Atlanta Journal-Constitution’s count, “at least 19 election board members across nine Georgia counties … have objected to certifying an election over the past four years.” That the election-board refuseniks appear to be especially persistent and entrenched in Georgia may not be surprising in a state where the coordinated attack on the 2020 election is being prosecuted as a racketeering scheme. Georgia is, after all, the state where Rudy Giuliani unleashed his disinformation campaign defaming two poll workers, daughter Wandrea “Shaye” Moss and mother Ruby Freeman, and where Trump implied that Secretary of State Brad Raffensperger could face prosecution if he did not “find 11,780 votes” to flip the election results.
“Most recently, a member of the Fulton County Registration and Elections Board refused to vote to certify the May 2024 primary results,” the DNC’s petition notes. “Indeed, that member has brought suit in this Court, seeking a declaration that her duties regarding certification are discretionary.”
The Georgia petition summarizing this broader trend, though eye-opening, does not purport to be comprehensive. In their study titled Certification and Non-Discretion: A Guide to Protecting the 2024 Election, published in the Stanford Law & Policy Review, Lauren Miller and Will Wilder tracked other attempts to subvert election results on the local level, offering a historical perspective of county board-certifications as well as strategies for combating attacks on the system. In a report titled “Election certification under threat,” Citizens for Responsibility and Ethics in Washington (CREW), an anti-corruption watchdog, counted “35 rogue election officials across the country who have already refused to certify election results and may be in a position to do so again,” including in other states like Colorado, Nevada, North Carolina, and Michigan, though not all of these refusers’ efforts went to litigation.
Many of these nationwide efforts appear to be aligned with a strategy spawned in part by Steve Bannon years ago, as ProPublica documented in a 2021 report.
Georgia’s GOP Secretary of State Tells Counties: “Follow the Law”
Trump’s attacks on the 2020 election results in Georgia failed, in no small part, because his fellow Republicans — such as Raffensperger and Gov. Brian Kemp — resisted the former president’s pressure campaign to overturn then-president elect Joe Biden’s victory in the state. Raffensperger made clear once again that he opposes any delays to certification of election results.
“Georgia’s Election Integrity Act requires counties to certify the election results by November 12th and we fully anticipate that counties will follow the law,” Raffensperger wrote in an X (formerly Twitter) post on Aug. 7, the day after the state board passed the disputed rule.
Four days earlier, Raffensperger responded to Trump’s attack against him on Truth Social with a warning that election-denialist tactics backfired on the former president in 2020.
“Georgia’s elections are secure,” Raffensperger said in a statement directed to Trump on Aug. 3. “The winner here in November will reflect the will of the people. History has taught us this type of message doesn’t sell well here in Georgia, sir.”
In a motion to fast-track their lawsuit, the challengers of the Georgia State Election Board’s rules also quote Raffensperger as warning, “These misguided, last-minute changes from unelected bureaucrats who have never run an election and seem to reject the advice of anyone who ever has could cause serious problems in an election that otherwise will be secure and accurate.” Their case has landed before Fulton County Superior Court Judge Robert McBurney, who was appointed by a Republican governor and presided over the special grand jury investigation that preceded Trump’s election-racketeering indictment. On Tuesday, McBurney dismissed a lawsuit filed by Julie Adams, a Republican member of the Fulton County Board of Elections and Registration who refused to certify the county’s May 2024 primary election based on supposed “discrepancies.” (Adams, who named the wrong defendant in her lawsuit, will have an opportunity to correct her technical error and refile.)
Now adjudicating two election-related cases on his docket, McBurney has been asked to declare the certification of election results a mandatory duty — and reaffirm that this process must take place by Nov. 12 at 5 p.m. ET. The Georgia board’s “reasonable inquiry” rule formally took effect on Sept. 4, exactly 20 days after its filing with the Secretary of State’s office.
“Settled Georgia law establishes that election contests — not certification — are the designated mechanism for resolving disputes about alleged irregularities in the election process,” the lawsuit states. “Such contests are a separate process, within the judicial system and thus with the attendant evidentiary standards and other procedural protections, that follows certification.” The State Election Board has yet to respond with a brief of its own.
Fortifying the Guardrails
With election refusers racking up defeats, some state and local officials remain confident that the guardrails protecting vote totals from nullification remain fortified. Alex Curtas, a spokesman for New Mexico Secretary of State Maggie Toulouse Oliver, emphasized in a phone interview that the state’s Supreme Court decision ordering deep-red Otero County to certify its election left no room for confusion.
“We feel that that Supreme Court order is the stark black line that already showed anyone who had this kind of strategy in mind that that is not a legal strategy,” Curtas said.
Otero County is a staunchly conservative county that has remained a hotbed of election-related denialism. The county’s former commissioner Couy Griffin, the founder of a group called Cowboys for Trump, was disqualified from public office under the 14th Amendment for his role in the Jan. 6th insurrection, following his federal prosecution for climbing barricades in his approach to the U.S. Capitol. (Griffin, who did not ultimately enter the building, was found guilty of misdemeanors.) After the 2022 primary election, county board members sought to nullify the results based on unspecified suspicions related to Dominion voting machines, a baseless conspiracy theory that forced Fox to pay a $787 million defamation judgment for disseminating it in the wake of the last presidential election.
Had Otero’s county board members succeeded, they ironically would have negated the 2022 primary elections of their own Republican candidates in their broader efforts to sow doubt over Trump’s defeat in 2020.
“One of the [Otero County] commissioners was on the ballot,” Curtas noted. “So he was basically going to not certify the election that would allow him to move forward and be reelected. So it’s got this sort of illogical, shoot-yourself-in-the-foot aspect to it.”
Curtas noted that New Mexico law has procedures in place for disputing the election results, and as the challengers of the Georgia State Election Board’s new rules note, so do other states across the country.
“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,” the Georgia lawsuit states. “But 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.”
Before the 2020 election, such principles were uncontroversial, but the organized opposition to this framework by partisan operatives — posing as local election functionaries — could remain a sustained challenge to U.S. democracy, regardless of the outcome of any particular litigation.
IMAGE: A graphic of select states where county boards contested election results during races that took place in the years after the 2020 presidential election, until being forced to certify through litigation (Photo Credit: Just Security).
The post Election Certification Refusers Are a Movement: Georgia Lawsuit Highlights Alarming Trend appeared first on Just Security.
