ATLANTA — Georgia's controversial State Election Board reviewed 11 proposed rule changes Friday and passed several of them, with significant implications for election administration in November.
Perhaps most consequentially, the Board passed a rule 3-2 that now requires local precincts to hand count ballot totals to check against machine totals at the end of Election Day.
The Secretary of State's Office described the features of the rule this way:
The main features of the amendments to this rule are that requires the poll manager and two sworn poll officers to unseal ballot boxes, remove and record the ballots, and have three poll officers independently count them. Once all three counts match, they sign a control document. If discrepancies arise between the hand count and recorded totals, the poll manager must resolve and document the inconsistency. The counted ballots are sealed in labeled containers, signed to ensure integrity.
Georgia Attorney General Chris Carr this morning had advised the board in a letter that this particular rule was likely outside the bounds of what the State Election Board can regulate. He wrote the rule was "not tethered to any statute" and therefore "likely the precise type of impermissible legislation that agencies cannot do."
The rule was voted for by board members Janelle King, Rick Jeffares and Dr. Janice Johnston, who have supported and advanced rules brought by conservative activists. Former President Donald Trump highlighted the trio at a rally in Georgia as "pit bulls fighting for honesty, transparency and victory."
Board Chair John Fervier, an appointee by Gov. Brian Kemp, opposed the rule along with the board's lone Democratic appointment, Sara Tindall Ghazal.
Fervier had cited the legal guidance from the AG's Office and said if the board voted to implement the rule, "I think we put ourselves in legal jeopardy."
King contended he was "welcoming lawsuits" with his comments.
Sec. of State Brad Raffensperger later issued a statement on the new rules:
“Attorney General Chris Carr has stated that these rules would not withstand a legal challenge, and I have worked every day to strengthen Georgia’s election law to ensure our elections remain safe, secure, and free,” Sec. Raffensperger said. “Georgia voters can be confident that the reforms we’ve enacted since 2020 and have defended in court from frivolous attacks by Stacy Abrams will ensure only American citizens vote in our elections. Our reforms have made Georgia elections the safest in the nation and I work every day to keep it that way.”
An accompanying rule proposed alongside the hand-count rule was tabled with a 4-1 vote.
A third rule, that would require the printing of emergency/provisional ballots and absentee ballots separately and distinctly, was tabled 3-1. And a fourth vote deferred a proposed rule concerning the tracking of absentee-by-mail ballots.
The fifth rule raised provides for the public publishing of precinct-level reconciliation reports and passed with a 4-0 vote.
The sixth vote went 4-0 to deny a rule that would require counties to post voter roll lists as well as the Secretary of State's Office to post a statewide list. The rule had some support but appeared to directly conflict with Georgia law on whether the Secretary of State's Office can charge for such a list or make it freely available, as the proposed rule stated. Member Janelle King offered to rework the rule with the woman who submitted it.
The board passed 3-0 the seventh rule up for a vote, which had been proposed by one of their own, Rick Jeffares, that requires "a daily reporting system to publicly share the total number of voters who have participated, beginning from the start of advance voting."
The board also passed the eighth rule considered, in a 3-1 vote, that "designates additional areas within the tabulating centers in which poll watchers are permitted to view tabulation and reconciliation processes."
Georgia State Election Board meeting live stream
What AG Chris Carr said about hand-count rule
These rules refer to the process of hand-counting ballots on Election Day and during the advance voting period, respectively, to produce a vote total to compare to the ballot count produced by the ballot scanners. Crucially, these Proposed Rules purport to amend provisions to allow for hand-counting ballots at the precinct-level, which would appear to occur prior to submission to the election superintendent and consolidation and tabulation of the votes. Compare Ga. Comp. R. & Regs. 183-1-12-.12(a) (“After the Polls Close”) with Ga. Comp. R. & Regs. 183-1-12-.12(b) (“Consolidation of Results”); Ga. Comp. R. & Regs. 183-1-14-.02(8) (“At the close of voting on any day during the advance voting period…); Ga. Comp. R. & Regs. 183-1-14-.02(13) (“The ballot scanner and ballot containers shall then be secured until time for the tabulation of votes.”).
However, the statutes upon which these rules rely do not reflect any provision enacted by the General Assembly for the hand-counting of ballots prior to tabulation.
For example, O.C.G.A. § 21-2-483 details procedures at the tabulation center: in primaries and elections in which optical scanners are used, after the seal on each container of ballots is inspected and verified as not having been broken, the container with the ballots is opened, the ballots are removed, “and the ballots shall be prepared for processing by the tabulating machines.” O.C.G.A. § 21-2-483(c) (emphasis added).
Then, “[u]pon completion of the tabulation of the votes, the superintendent shall cause to be completed and signed a ballot recap form[.]” O.C.G.A. § 21-2-483(d). O.C.G.A. § 21- 2-436 is similarly inapplicable; that statute contemplates the duties of the poll officers after the close of polls in precincts in which paper ballots are used, not ballot scanners or voting machines.
O.C.G.A. § 21-2-420(a) does provide that “the poll officials in each precinct shall complete the required accounting and related documentation for the precinct and shall advise the election superintendent of the total number of ballots cast at such precinct and the total number of provisional ballots cast.” However, neither the statutes that prescribe the duties of poll officers after the close of the polls for precincts using voting machines, see O.C.G.A. § 21-2-454, nor the precincts using optical scanners, see O.C.G.A. § 21-2- 485, suggest that the General Assembly contemplated that a hand-count of the ballots would be part of the “required accounting.”
There are thus no provisions in the statutes cited in support of these proposed rules that permit counting the number of ballots by hand at the precinct level prior to delivery to the election superintendent for tabulation. Accordingly, these proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do. See HCA Health Services of Ga., Inc., supra.
More about the State Election Board
The State Election Board's actions have taken on a higher profile recently with a conservative majority of the board more receptive to activist demands -- largely tied to continued anger over the 2020 election result in Georgia -- for changes to election administration rules.
Former President Trump highlighted the three board members -- Dr. Janice Johnston, Janelle King and Rick Jeffares -- who have steered the board toward endorsing various rule changes submitted by the public, calling them "pit bulls fighting for honesty, transparency and victory."
The board has five members: one appointed by the state House, one chosen by the state Senate, one each from the Republican and Democratic parties, and a nonpartisan chair selected by the General Assembly or by the governor if the General Assembly is not in session when there is a vacancy.
Conservative media personality King was appointed by the House in May, sealing Republican partisan control. Dr. Johnston, a retired obstetrician and frequent critic of elections in deeply Democratic Fulton County, was appointed by the state GOP in 2022. And Jeffares, a former lawmaker close to Trump-aligned Lt. Gov. Burt Jones, was appointed earlier this year by the Senate.
In August, the board voted 3-2 to ask state Attorney General Chris Carr to investigate the Fulton County government over the 2020 election, seeking to reopen an inquiry closed in May.