Amicus: New Georgia election rules go against legal and historical precedent

The Georgia State Election Board ignored 125 years of legal precedents when it adopted two new rules that would invite election certification disruptions, according to an amicus brief filed today in Fulton County Superior Court by Citizens for Responsibility and Ethics in Washington and Ballard Spahr LLP on behalf of six historians with expertise on Georgia's political, legal and social history. The recently adopted rules could be interpreted to grant county election officials discretion to conduct open-ended "inquiries" of election results as part of the certification process, even though the Georgia Supreme Court has repeatedly ruled that certification is a mandatory, non-discretionary duty.

The historians submitting this brief have served as expert witnesses in voting rights litigation in Georgia, published peer-reviewed books, articles, and other scholarly works on Georgia history and closely studied the development of Georgia law over the 19th and 20th centuries. They are:

• Carol Anderson, Robert W. Woodruff Professor of African American Studies at Emory University
• Vernon Burton, Judge Matthew J. Perry Distinguished Chair of History at Clemson University
• J. Morgan Kousser, Professor of History and Social Science Emeritus at the California Institute of Technology
• Allan Lichtman, Distinguished Professor of History at American University,
• Peyton McCrary, Professorial Lecturer in Law at the George Washington University Law School and former historian at the Civil Rights Division of the United States Department of Justice
• Jason Morgan Ward, professor of history at Emory University

In August, the Georgia State Election Board passed two rules governing county-level certification. One seeks to give county election boards discretion to conduct a "reasonable inquiry" before certifying election results, and the other seeks to authorize individual board members to request and examine "all election related documentation created during the conduct of elections prior to certification of results."

The amicus brief discusses four Georgia Supreme Court rulings that make clear election canvassers at the state, county and local level do not have discretion to conduct wide-ranging inquiries that could change election results-rather, their job is simply to count votes and declare the mathematical result of the election. The cases further make clear that allegations of voter fraud and error are resolved by the courts, not by political party appointees who serve on county boards. The historians also provide past examples demonstrating that when governmental bodies charged with election certification go beyond their limited administrative roles, it exacerbates the potential for political violence. One decision in particular, Thompson v. Talmadge, settled a controversy where three men claimed the right to be Georgia Governor after the General Assembly exceeded its ministerial role in declaring the gubernatorial election results. This incident led to violence at the Georgia Capitol and mobilization of the state and national guards against each other.

"Georgia's history and law are clear: county election superintendents do not have the authority to adjudicate allegations of voter fraud or error-that is the role of the courts. When election certifiers go beyond their proper role, it risks disenfranchising voters, increases the likelihood of political violence and threatens democracy at its core," said CREW President Noah Bookbinder. "The new rules adopted by the State Election Board are unlawful and dangerous, and contrary to 125 years of judicial precedent. The Court should rule that they are invalid."

Since the 2020 election, there has been a wave of attempts to undermine the election certification process across the country. Notably, the certification process was jeopardized when President Trump called Georgia Secretary of State Brad Raffensperger on January 2, 2021, and said, "I just want to find 11,780 votes." Several Georgia county officials have since voted against certifying election results in violation of state law.

"At a time when concerns about election subversion are already high, the State Election Board should be adopting rules that bolster confidence in Georgia's elections, not ones that risk burdening election workers and legitimizing efforts to sabotage the certification process," said Bookbinder. "The court has the chance to correct course, abide by Georgia's electoral history and legal precedents, and protect against mass voter disenfranchisement and post-election chaos. It must take it."