How Georgia state election board’s proposed rules make it easier to challenge results

Georgia’s state board of elections has proposed changes to election policy and monitoring requirements that put Fulton county elections officials in their crosshairs and could delay and allow for partisan actors to challenge election results. .

As part of the state board’s reprimand for Fulton county double-counting some ballots in a 2020 recount – an error that did not affect the outcome of the election – Fulton county is required to hire a team of election monitors for the 2024 presidential election. The board also began a process of rule-making this week that will require county elections workers to count the paper ballots cast at each polling place by hand before turning those ballots in to be tabulated after each day of voting, and to investigate discrepancies on the spot.

The new rules under consideration in Georgia would alter what it means for local election boards to certify an election. The process currently is considered ministerial – a formality signaling the end of an election and the tabulation of votes, with any challenges to the results coming after certification. The rules ask the volunteers working at local polling sites or local election board members to investigate discrepancies as a prerequisite of certification.

The new rule, proposed by Republican Michael Heekin of the Fulton county board of elections, also requires all discrepancies to be investigated immediately and it empowers local elections board members to pull whatever records they deem fit to ensure an election is conducted fairly.

“The investigation part is already kind of nerve-wracking because the rule doesn’t give a clear explanation of what suffices,” said Marisa Pyle, senior democracy defense manager from the voting rights group All Voting Is Local.

Proponents argue that the new rule would increase confidence in Georgia’s elections and reduce the potential for errors. Detractors say that it is far more likely to create errors – that the introduction of an additional step requiring the handling of ballots adds a point of failure in the process.

Related: Documents detail Republican push to force hand counts in Arizona election

“That’s exactly why this is not the standard practice,” said Sara Tindall Ghazal, a Democratic appointee to the state election board. “The counties that were piloting the system found that their poll workers, after working a 14-hour day and being exhausted and generally being older, couldn’t count it correctly consistently … and if you’re off by one or two, you’re just going to do it over and over again.”

If adopted, it works against laws the Georgia legislature passed after the 2020 election requiring elections offices to tabulate results from every precinct by midnight on election day.

The “petitions contain provisions that, if adopted, would create a significant risk of delay in counties certifying election results”, said Peter J Simmons, state policy advocate at Protect Democracy. “Any such delays could quickly endanger the ability to meet not only the post-election deadlines imposed by state law, but also the new federal deadlines for certification created by the Electoral Count Reform Act.

“Honestly, that appears to be the intent of these proposals – to create opportunities for delay and confusion, and to sow further distrust of our election system,” he added.

The proposal also comes after Julie Adams, a Republican on the Fulton county election board, filed a lawsuit against the county election board and the county’s election director to get a court order saying that boards of election members have the discretion not to certify an election. The lawsuit has been described as an effort to set the stage for Republicans to rig the election in November.

The board must post the proposed rule for 30 days of public comment before voting it into effect. The rule would thus go into effect with less than three months before the 5 November presidential election. The Electoral Count Reform Act, passed by Congress in the wake of the January 6 US Capitol attack and the election interference cases stemming from the 2020 election, requires states to have resolved challenges to election results by 11 December, six days before the constitution sets state electoral votes, this year on 17 December.

The rules are setting up conditions where an aggrieved party can drag the county – or other counties – through the courts after an election. And the question is whether that slog will tie up an election result past 11 December.

The rule-making process may have also hit a snag this week because of a raucous state elections board meeting on Tuesday. What had been planned as a one-day meeting could not be concluded on Tuesday. Wednesday’s carry-over meeting failed to reach a quorum, with three conservative members of the board absent.

The meeting is formally in recess right now. It cannot be called back into session unless the chairman, John Fevier, calls it, and until it adjourns properly – or until it meets again at its regular date next month – the proposed rules cannot be legally posted for their 30-day public comment period.

And if that public comment period doesn’t begin until August, it is unclear whether changes to election practices so close to a federal election could be implemented. The changes are likely to be challenged in state and federal court regardless.

***

But the rule-making is only the latest in a series of moves that may complicate election day in Georgia for poll workers.

During a Fulton county board of registration and elections meeting on Thursday, the board considered a proposal from Dr Janice Johnson, a Republican appointee to the state election board, offering a raft of GOP partisans and people closely aligned with Republican efforts to overturn the 2020 election as potential election monitors. The list included Salleigh Grubbs, chairwoman of the Cobb county Republican party; Christine Propst, who manages Republican poll watchers in Fulton county; Robert Barker, an attorney who represents one of the defendants in the Fulton county election interference case against Donald Trump; and Heather Honey, a conservative election integrity activist from Pennsylvania.

The list also includes Garland Favorito, founder of VoteGa.org, who is still pressing forward with lawsuits related to the 2020 election.

The board voted 3-2 along partisan lines to reject the state board’s proposal, instead accepting a proposal by Ryan Germany, former general counsel for the Georgia secretary of state. Germany’s proposal incorporates monitoring by the Carter Center and other conventional voter monitoring groups.

“I can’t support a proposal that has people currently suing us as a monitor,” said Aaron Johnson, a board member.

Favorito, who was present at the meeting, stood up in the audience and offered to remove his name from the proposal, and was told to sit down by Cathy Woolard, an outgoing board chair. Favorito refused to answer a question about how his name came to be on the state board’s list of proposed election monitors.

***

Woolard, the Fulton county interim elections board chair, ends her tenure as its leader on 25 July, citing a desire to return to life as a private citizen. Woolard is a previous board chair who returned temporarily after the previous chair resigned to take a job as Atlanta’s city attorney.

At the end of the board meeting, Woolard thanked her board members and elections workers with her farewell. “You put up with a lot, but you keep coming. You have each other’s backs and you do excellent work.”

Woolard, former president of the Atlanta city council, called on the board and her successor to resist external influence in decision making. “We have to decide who actually directs this board, and I’ve seen in a short period of time some efforts to sort of delegate that work elsewhere,” she said.

Woolard’s comment may have been directed at conservative members of the board, who have been linked to national efforts to challenge the integrity of elections.

“If you have a conflict of interest, then either step away from the board or step away from the decision and declare what that is. That’s standard practice.” she said.

Her absence leaves the board with a 2-2 partisan split until Robb Pitts, the Fulton county chair, names her replacement. He is expected to do so at the next county board meeting this month.

“With a 2-2 partisan split, not much is going to get done,” Woolard said.