Comment to the Georgia State Election Board: Reject proposed rule adding several new steps for county boards of elections to complete before certification

The Georgia State Election Board is considering an amendment to Rule 183–1–12-.12 that would encumber county boards of elections with several pre-certification demands. Among the changes, county boards must meet no later than 3:00 p.m. the Friday after Election Day to review precinct returns; investigate any perceived discrepancies in compiled lists of all voters at each precinct (separated by voting type); and should apparent discrepancies be identified, halt counting certain precinct votes until the investigation’s results are revealed and means of counting the ballots “justly” is agreed upon. When reviewing a precinct’s returns, county board members would be permitted to examine “all election related documentation.”

The proposed requirement for county boards to meet soon after Election Day will disrupt well-established counting laws, which provide up to three full days for provisional voters to submit necessary information and for county registrars to verify such information. For the general election, this means registrars have until 5:00 p.m. on Friday, November 8 to determine the validity of provisional ballots.footnote1_F5GMMf5pfyhNZJD9JBPz7yj77b-lskMpMpeDJaZZCc_lFeI9rwSQRsu1Ga. Sec’y of State, “2024 Election Calendar and Highlights,” accessed August 16, 2024, https://sos.ga.gov/sites/default/files/2024–01/29.1.2024%20Comp-Cal_State.01.12.24.Rev_..pdf (noting the November 8, 2024 5:00 p.m. deadline for November general provisional voter documentation).Should the Board adopt this rule, registrars could still be identifying which provisional ballots must be counted as board members begin their own review at 3:00 p.m. that day, meaning that they could be reviewing incomplete returns.

The proposed amendment permitting county board members to demand and sift through an unbounded list of documents immediately after Election Day presents its own concerns. This potentially never-ending search of documents (including those unrelated to election results themselves) paves the way for significant interference with or delays in the certification process – precisely what the General Assembly and the Georgia Supreme Court have sought to avoid.footnote2_k6eNm-MmGeEIb7u2hLvHrzmpdL6u0kZB6JJ5-pMUSnA_bjewbhtJLeBI2See Ga. Sec’y of State, “Raffensperger Defends Georgia’s Election Integrity Act from Last Minute Changes Delaying Election Results,” August 15, 2024, https://sos.ga.gov/news/raffensperger-defends-georgias-election-integrity-act-last-minute-changes-delaying-election (“The General Assembly knew that quick reporting of results and certification is paramount to voter confidence[.]”); Tanner v. Deen, 33 S.E. 832, 833–36 (Ga. 1899) (noting that local election officials “were not selected for their knowledge of the law” and therefore had no authority to make legal determinations concerning the validity of election returns).

The Brennan Center for Justice at NYU Law submitted a comment describing how this latest round of changes to post-election processes would sow distrust in election returns across the state.