Georgia’s Election-Law Problems Aren’t Legal Ones
10 min read
Many Americans are alarmed by eleventh-hour rule changes adopted by Georgia’s State Election Board—and rightly so. But many misunderstand where the danger lies.
The new rules, which add steps to the process of counting and certifying election results, could cause delays and promote lawlessness by county officials who do not like the outcome of the election. But they will not, as I’ve written for Lawfare, allow Donald Trump to steal the presidency. The problem they create is a political one: sparking postelection chaos, misinformation, and possibly even political violence. That alone makes them immensely valuable to Trump—and potentially destructive to American democracy.
Perhaps the most controversial change is one adopted last month, requiring poll workers to hand-count paper ballots. Initial media stories suggested that the rule could delay the reporting of election results by “days, weeks or months.” In turn, some pundits worried that such delays could upend the November election by causing Georgia to miss the December 11 federal deadline by which each state must certify its slate of presidential electors.
But hand-counting ballots is unlikely to gum things up for that long. The rule does notrequire a hand tally of votes—a laborious task that would indeed cause substantial delays. Votes in Georgia will still be counted by machine. Instead, the rule requires a hand count of total ballots—the sheets of paperthat are stored in every ballot scanner in each precinct at the end of Election Day—not a tally of totals per candidate. (The purpose of the rule is to ensure that election officials have accounted for every paper ballot received. It does so by facilitating a process known as “reconciliation,” which involves cross-checking the total number of ballots counted by hand with the total number of ballots recorded on the electronic devices. If there’s a discrepancy, the poll manager is supposed to determine the reason for the inconsistency and correct it, if possible.)
Although the hand-count rule could cause somereporting delays, those delays will in all likelihood range from several minutes to a few hours at most, according to election officials and experts I spoke with. There might not be any delays at all. Some states, including Illinois, hand-count ballots on Election Night without complaints of delays. And polling precincts in Georgia have the option to send their machine-tallied vote totals to the central tabulation center before they finish counting the paper ballots by hand.
Another controversial rule change requires a county board to conduct an undefined “reasonable inquiry” before certifying election results. A great many media outlets have inaccurately described the rule as though it empowers local officials to delay or refuse to certify. But that’s not actually what the rule does, and describing it as such overstates what the board canlawfully do.
Begin with a basic premise: The State Election Board, as an administrative body, can adopt only rules that are authorized by and consistent with Georgia statutory law. Here, Georgia statutory law sets out a crystal-clear, mandatory deadline by which counties must certify election results. It provides that local election officials “shall” certify election returns a week after Election Day. And Georgia courts have for more than a century consistently held that local election boards have a “ministerial,” or mandatory, duty to certify election results. If a county board delays certification past the statutory deadline, such actions would amount to a violation of state law—even if ambiguous administrative regulations might suggest otherwise.
But what happens if local election officials ignore the language in the statute and, pointing to the State Election Board rules for legal cover, delay or refuse to certify?
The most likely outcome is that a judge will force the board to certify its results well before the December 11 federal deadline. During a briefing last month, Gabriel Sterling, the chief operating officer for the Georgia secretary of state’s office, told election administrators that his office has already “game-planned” litigation strategies in the event that a county refuses to certify. Timing shouldn’t be an issue. Courts can compel public officials to fulfill their duties by issuing a specific type of order, called a “writ of mandamus,” which is designed to move at judicial warp speed. During the 2022 primary election in New Mexico, for example, the state supreme court intervened within 48 hours of the Otero County Commission’s refusal to certify. The whole ordeal was resolved by the end of the week.
Even if certification disputes cause Georgia to blow past the December deadline, federal law provides for a process to ensure that a single, lawful slate of electors will be counted by Congress on January 6, 2025. Following the chaos of the 2020 election, Congress enacted legislation called the Electoral Count Reform and Presidential Transition Improvement Act (ECRA), which sought to plug some of the gaps in the 1887 federal law that governs the certification of the Electoral College. Among other reforms, the law established an expedited appeals procedure to resolve disputes over a state’s failure to certify. If Georgia fails to certify on time, the ECRA allows either presidential candidate to bring suit in federal court, with any appeals likely resolved by the Supreme Court shortly before the Electoral College meets on December 17. How a court rules at the end of this process will be considered “conclusive,” meaning that Congress, when it convenes to count the votes on January 6, is obliged to accept that certification.
The idea that the Supreme Court could have the last word on the certification of Georgia’s electoral votes might offer little comfort to some, especially following the Court’s decision to shield Trump from full accountability for his actions during the last election. But the Court has previously resisted opportunities to help Trump overturn an election. In the 2020 contest, the Court simply sat on Trump’s election challenges until January 6, 2021, had passed, despite pleas for it to intervene and fast-track the cases. More recently, the Court’s opinion in Moore v. Harper rejected the most robust version of the “independent state legislature” theory, which Trump supporters could have used to wreak electoral havoc in 2024. Here, it would be unthinkable for any court—even this Supreme Court—to basically conclude that local election officials in Georgia can nullify the votes of the entire state during a presidential election. The proposition really is that radical.
I could write thousands of words responding to hypothetical doomsday scenarios, but the upshot is always the same: The likelihood that a Georgia county board’s refusal to certify could be used to overthrow a presidential election is essentially nil.
That said, the rule changes in Georgia could cause a great deal of mischief during the upcoming election, even if they aren’t a legal avenue for Trump to hijack the election. The problem is that they are a political one.
Delays caused by the implementation of the hand-count rule, for example, almost certainly won’t hamstring certification—but even relatively minor reporting delays are soil in which misinformation thrives. If the rule remains in effect on Election Day, delays are most likely to have an impact on the reporting of results in larger precincts in the Atlanta area, most of which are likely to favor Kamala Harris. Belated reporting from those precincts could create what’s known as the “red mirage,” in which Trump appears to take an early lead only to see that lead dwindle as the Harris-favoring precincts report their results. Trump fans are liable to view this completely legitimate shift as theft. What’s more, MAGA election officials could point to minor discrepancies between the machine tallies and the hand count of ballots as pretext for refusing to certify the election results—even if that would be unlawful.
The reasonable-inquiry rule likewise seems to invite chaos by providing legal-sounding cover for right-wing election officials to refuse to certify their results. Experience from the 2020 election demonstrates how even baseless political grandstanding by local election officials can serve as a powerful tool to sow distrust: Following a machine recount of the presidential race in Georgia, the Coffee County Board of Elections refused to certify, citing a 50-vote discrepancy. The board blamed voting machines, even though the elections supervisor admitted that she was, according to the secretary of state’s office, “unsure whether she had scanned a batch of 50 ballots twice.” The secretary of state’s office ultimately concluded that the discrepancy resulted from human error.
To Trump and his supporters, the truth didn’t matter. Misinformation about irregularities in Coffee County went viral online. Trump allies cited Coffee County’s refusal to certify in an election suit and draft executive orders—Trump was still president at the time, after all—that would have directed the secretary of defense and the Department of Homeland Security to seize Dominion Voting Systems machines. At the behest of Trump-campaign associates, the Coffee County elections supervisor and a member of the Board of Elections permitted unauthorized access to sensitive voting equipment for the purpose of gathering evidence of supposed irregularities or fraud. Years later, prominent election deniers have continued to point to purported inconsistencies in Coffee County.
Coffee County was the only county in Georgia that refused to certify in 2020, and in doing so, it came to play a central role in helping Trump achieve his most enduring political victory: convincing millions that the 2020 election had been stolen from him. The reasonable-inquiry rule increases the risk that not just one county but dozens of counties could refuse to certify their election results. State and federal officials would no doubt seek to squelch misinformation surrounding refusals to certify, but that already challenging task becomes more difficult when the sources of misinformation are the very people tasked with administering elections. A judicial decision compelling board members to certify could further fan the flames of political discontent, because Trump and his supporters would no doubt claim, as some have before, that local officials were forced to accept fraudulent results.
Against this backdrop, the danger of political violence looms. When Congress meets again to count electoral votes on January 6, 2025, it will do so under increased security. But the politicization of the certification process at the local level raises the risk of violent disruptions much earlier in the electoral process, possibly when county boards convene to certify election results. Some prominent Trump supporters have explicitly alluded to the prospect of civil unrest: At an event in July, Joe Oltmann—the host of the podcast Conservative Daily—told an audience that the upcoming election would be stolen. “Let’s go get our guns; we have to have a target,” he reportedly said. “The time is coming when good people will have to do bad things to bad people.” Additionally, the militia movement has grown more decentralized since January 6, and some groups have sought allies within local police departments. Those developments could make it harder for law enforcement to detect and prevent organized political violence at the local level.
The picture is not entirely bleak. Last month, the Democratic Party of Georgia and the Democratic National Committee sued the State Election Board in Fulton County Superior Court, requesting a declaration that the reasonable-inquiry rule does not grant county election boards discretion to delay or refuse to certify elections. Judge Robert McBurney—the same judge who presided over the Georgia special-grand-jury investigation into Trump and others for more than a year—held a trial on the matter earlier this week. Although McBurney didn’t immediately issue a ruling, he said during the two-hour trial that state law requires county election boards to certify results by the statutory deadline—guidance from the bench that should itself help mitigate potential disruptions. Meanwhile, preelection litigation over other rules, including the hand-count rule, is ongoing, providing an opportunity for further clarification.
Still, Americans—in Georgia and elsewhere—should be prepared for a turbulent postelection period, especially if the race is close. During the attempted coup in 2020, Trump and his allies mounted pressure campaigns against state and local officials, even when the legal duties of those officials were clear. Since then, certification at the local level has become a target of election deniers. Last month, I was in Hogansville, Georgia, to watch one of the leaders of that movement, a former lawyer turned conspiracy theorist named David Clements, speak at a church. Clements paced in front of an Appeal to Heaven flag as he encouraged audience members to pressure their local election officials to refuse to certify the upcoming election. “You have grounds to say, ‘Board, you better not certify this process, this vote, or those machines,’” Clements told the more than 50 people in attendance. “You all have to create a righteous, sober-minded, well-spoken, articulate mob, if you will,” he continued. “Because that’s the only thing that works short of where we’re headed, which is a kinetic civil war—if we don’t get this resolved peacefully.”
Clements seemed to understand something that Trump himself has long understood: Chaos is a tool. The 2020 election reflected one manifestation of that understanding, as Trump and his allies touted baseless claims of widespread fraud in an effort to stop the congressional certification of electoral votes on January 6, 2021. This time around, out of office, Trump will have a harder time manipulating the law to his benefit. And the recent happenings at the State Election Board almost certainly will not allow him to steal the presidency. But efforts to delay certification at the local level might not be about achieving a concrete legal victory so much as they are about sowing a conspiracy-theory-fueled rebellion. And that will be very dangerous indeed.
