The Georgia State Election Board is considering an amendment to Rule 183–1–2-.02 that would purport to define election certification to mean “attest, after reasonable inquiry, that the tabulation and canvassing of the election are complete and accurate and that the election results are a true and accurate accounting of all votes cast in that election.” Though the petition claims this rule will clarify ambiguity about an election official’s duty to certify results, the Georgia Supreme Court has consistently interpreted that duty as a ministerial one rather than discretionary1. Therefore, this language conflicts with longstanding Georgia caselaw and would sow disorder in the state’s election administration processes, which already have safeguards to ensure election results are accurate and reliable.
The comment was submitted by the Brennan Center for Justice at NYU Law and United to Protect Democracy, and details legal 2and policy3reasons to preserve the non-discretionary history of election certification in Georgia, and urges the Board to reject the proposed change.
Endnotes
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1
Bacon v. Black, 133 S.E. 251, 253 (Ga. 1926). Historically, “[a] sizable body of case law” in Georgia “contrast[ed] the ‘discretionary’ acts of a state employee, for which official immunity applied to protect the employee from personal liability, and ‘ministerial’ acts of an employee, for which the employee was potentially personally liable. The cases held that a discretionary act … calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” NW Ga. Reg. Hosp. v. Wilkins, 469 S.E.2d 786, 788 (citations and punctuation omitted).
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2
Lauren Miller & Will Wilder, Certification and Non-Discretion: A Guide to Protecting the 2024 Election, 35 Stan. L. & Pol’y Rev. 1, 14–23 (2024), https://law.stanford.edu/wp-content/uploads/2024/02/MILLER-WILDER-FINAL-1.pdf.
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3
Brennan Center, Local Election Officials Survey (May 2024), https://www.brennancenter.org/our-work/research-reports/local-election-officials-survey-may-2024.
