Georgia’s GOP-controlled State Election Board is poised to adopt a rule today that would give county election board members an additional avenue to delay certification of election results, potentially allowing them to throw the state’s vote count into chaos this fall.
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A former Fulton County election official who submitted an initial draft of the rule told ProPublica that she had done so at the behest of a regional leader of a right-wing organization involved in challenging the legitimacy of American election systems. That organization, the Election Integrity Network, is led by Cleta Mitchell, who helped orchestrate attempts to overturn the 2020 election and spoke on the call in which former President Donald Trump demanded that Georgia’s secretary of state “find” him 11,780 votes to undo Joe Biden’s victory.
The Election Integrity Network’s role in bringing forward the proposed rule has not been previously reported.
The State Election Board’s Monday meeting comes on the heels of a vote less than two weeks before that empowered county election board members to conduct “reasonable inquiry” into allegations of voting irregularities. That rule did not set deadlines for how long such inquiries might last or describe what they might entail, and critics worried that this omission could cause Georgia to miss the Dec. 11 deadline for sending its certified presidential election results to the federal government.
The new rule is even more concerning, election experts said, because it requires county boards to investigate discrepancies between the number of ballots cast and the number of people who voted in a precinct, no matter how minor. It bars counties from certifying the election tallies until officials can review an investigation of every precinct with inconsistent totals. Such inconsistencies are commonplace, not evidence of malfeasance, and only in extremely rare circumstances affect the outcome of elections. The requirement to explain every one of them and litigation around investigations into them could take far longer than the time allowed by law to certify.
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“If this rule is adopted, any claims of fraud, any claims of discrepancies, could be the basis for a county board member — acting in bad faith — to say, ‘I’m not confident in the results,’ and hold up certification under the flimsiest of pretexts,” said Ben Berwick, who leads the election law and litigation team of Protect Democracy, a nonprofit that works to protect the integrity of American elections.
“The bottom line here,” Berwick said, is that “election deniers are intentionally creating a failure point in the process where they can interfere if they don’t like the results of an election.”
Until 2020, the certification of elections was a noncontroversial part of running them. After Trump made “stop the steal” a rallying cry in his attempt to overturn his loss to Biden, an increasing number of conservative election board members, especially at the county level, have attempted to block certification of subsequent elections. ProPublica has previously reported how these disruptions revealed weaknesses in the nation’s electoral system.
Among those who would have the ability to slow down the count in the fall is Julie Adams, who is a Republican member of the Fulton County elections board and a regional coordinator with Mitchell’s Election Integrity Network. She was sworn in to the Fulton board in February, and one of her first official acts was to vote against the certification of the March presidential primary election, saying she needed more information to investigate discrepancies. She was overruled by her colleagues. She then sued the board and the county’s election director, asking for the court to find that her duties, such as certification, “are, in fact, discretionary, not ministerial.” The suit is ongoing.
The State Election Board received the proposed rule in April from Vernetta Nuriddin, a former member of the Fulton County elections board. In an interview on Friday, Nuriddin acknowledged that Adams “brought that particular concern” to her and was “instrumental” in bringing that rule and several others to the board.
In Nuriddin’s packet of paperwork asking for consideration of the rule, a cover letter said that the “Election Research Institute respectfully submits this petition for adoption.”
The Election Research Institute is led by Heather Honey, a conservative activist who also played a role in attempts to discredit the 2020 election results and has worked to advance election system overhauls supported by Mitchell, the head of the Election Integrity Network. Another organization Honey co-founded, Verity Vote, is listed as working on “joint projects and events” with the Election Integrity Network in its handbook. Mitchell has praised Honey as a “wonderful person” on her podcast.
Honey told ProPublica that her institute did not submit the proposed rule. “The Election Research Institute, like many, you know, nonprofits out there, have folks that have expertise in elections,” Honey said in a brief interview. “And so it is not uncommon for folks to seek our advice.” When asked about the language identifying the institute as submitting it, she said she would only answer further questions over email and then hung up. Honey did not respond to an emailed list of detailed questions.
Mitchell did not respond to requests for comment or a detailed list of questions.
Neither did Adams. In comments supporting the rule during a public meeting, Adams did not disclose her role originating it but explained that “it’s very hard to certify when you’re not following the law in knowing who voted, where they voted and how many ballots were cast.” She said that the purpose of the rule was to catch “problems beforehand” and that its goal was not “about throwing out precincts.”
Nuriddin eventually withdrew her submission. She would not say why.
An almost identical submission was provided to the board at about the same time by Bridget Thorne, a Fulton County commissioner and election denier. The primary difference was that Thorne’s version did not mention the Election Research Institute and said she was submitting it herself.
Thorne’s proposal was considered by the election board in its May meeting. “My hope is to reel in the blatant Fulton County not running their elections correctly,” Thorne told the board. She acknowledged that she had worked with Nuriddin on the rule, and that Nuriddin had withdrawn her name because “she wanted some tweaking of the language, last minute.”
In an interview, Thorne said she was encouraged to submit the rule by Honey, Adams and others.
She said that she did not know where all of the language in it came from because she had consulted with many lawyers and election experts while putting it together, but that some of it had come from herself and Honey. She said that Adams was not a writer but an organizer of the rule.
Thorne denied the rule was meant to be able to affect the outcome of the election. “The whole rule is to safeguard everybody’s vote,” she said, and to make sure that “nobody’s vote gets watered down by inadvertently double-scanning ballots.”
In a 45-minute discussion of the rule, a Republican member of the State Election Board warned that it ran “counter to both the federal and the state law” because it suggested counties could ignore the existing legal deadlines. The Republican chair of the board said that “this rule needs a little bit more work on it to make sure that it fully follows the statute” and that it was “not yet ready for prime time.” The board’s only Democratic member emphasized that it “is a criminal act to refuse to certify valid votes.”
Speaking alongside other conservative elections officials supportive of Thorne, Adams said that if an investigation was able to “find out why the numbers were wrong, a county might be late in certifying but they’d be a whole lot closer in returning accurate results.”
The five-person board, which has four Republicans on it, voted the proposal down unanimously, while offering to have two members work with supporters to refine the rule for future consideration.
That wasn’t the end of the proposal. In a matter of days, the Republican House speaker made a new appointment to the State Election Board, replacing a Republican lawyer who practices election law and who had said the rule was illegal and voted against it. In his place, the speaker appointed Janelle King. King is a conservative podcaster and panelist on a Georgia politics TV show, co-chairs a conservative political action committee, has no experience administering elections and has questioned the results of the 2020 election.
In June, a conservative activist resubmitted the rule with only minor updates, retaining a misspelling in its most important sentence.
In early August, during a rally in Atlanta, Trump praised by name the three members of the board’s new majority who are aligned with him, calling them “pit bulls fighting for honesty, transparency and victory” and saying they were “doing a great job.”
Days later, the State Election Board adopted a rule by a 3-2 vote that allowed for county board members to delay certification of election results to conduct a “reasonable inquiry” into them. The Republican chair sided with the lone Democratic appointee in opposition. Georgia’s Republican Secretary of State Brad Raffensperger harshly criticized that rule in a statement that called it “new activist rulemaking.”
“Quick reporting of results and certification is paramount to voter confidence,” Raffensperger said. “Misguided attempts by the State Election Board will delay election results and undermine chain of custody safeguards. Georgia voters reject this 11th hour chaos, and so should the unelected members of the State Election Board.”
ProPublica interviewed six election experts about the potential impact of the rule that is scheduled to be considered by the election board on Monday. Five said it seemed more likely to affect urban Democratic counties than rural Republican ones because the former are more populated and have more ballots and voters.
“The statistical probability of a discrepancy is more likely to occur in counties with many voters,” said Paul Gronke, a professor at Reed College and the director of the Elections and Voting Information Center. “What’s unusual” about the proposed rule “is saying that any discrepancy is enough to refuse to certify a whole precinct’s worth of votes,” without considering the magnitude of the discrepancy or the votes it might disenfranchise.
The six experts listed off numerous scenarios in which small discrepancies that do not impact the outcome of the election regularly occur, including: ballots getting stuck in scanners and overlooked, citizens checking in to vote and then discontinuing the process before finalizing their vote, memory sticks failing to upload, election systems being slow to update that a provisional ballot has been corrected and so on.
According to the experts, election laws across America do not allow minor discrepancies to halt the certification process because legally mandated deadlines are tight. There are later opportunities to resolve the discrepancies, such as mandatory audits, investigations and litigation.
“There’s a process for investigating problems” with vote tallies in the courts, “and so if a candidate feels there’s something wrongly done, they can go to the courts,” said Gowri Ramachandran the director of elections and security in the Brennan Center’s Elections & Government program.
If the proposed rule were used to delay certification, the battle would shift to the courts, according to the experts. Georgia law is explicit that certification is mandatory and that attempts by county board members not to certify votes would prompt interested parties to seek a writ of mandamus, a type of court order forcing government officials to properly fulfill their official duties. This prescribed remedy goes all the way back to an 1899 decision by the state Supreme Court, arising from a situation in which a county board was overruled when it tried to refuse to certify a precinct to give victory to their preferred candidates.
What would happen after that is less clear. Numerous outside groups would likely attempt to join the litigation, including the Republican National Committee and Democratic National Committee. On appeal, cases could end up at Georgia’s Supreme Court. Or they could get moved to federal court. The closest precedent is the recount of the 2000 election in Florida, which only ended after the U.S. Supreme Court stopped the count and awarded the presidency to Republican George W. Bush by a 5-4 vote.
“The 100% definitive answer is that no one knows how such a crisis would play out,” said Marisa Pyle, the senior democracy defense manager for Georgia with All Voting is Local Action, a voting rights advocacy organization. “No one wants to find out.”
This article was originally published by ProPublica, and republished here under a Creative Commons license.
