In a worst-case scenario, critics of Georgia’s new voting law fear it could be used to take over county election boards and install politically motivated administrators with the power to subvert results in next year’s races.
Defenders of the law say those concerns are unfounded. They say a takeover is a last resort after lengthy investigations and hearings for counties that have shown repeated problems running elections, such as Fulton County.
The first step toward a state takeover is already underway in Fulton, the state’s largest source of Democratic Party votes, where a performance review panel has been investigating the county’s election management since August. Fulton has a history of long lines, lost absentee ballot applications, mismanagement and slow results.
A decision on whether to replace Fulton’s elections board could come before the 2022 general election for Georgia governor and the U.S. Senate.
Election integrity advocates see danger in a climate where supporters of former Republican President Donald Trump act on false claims that the 2020 election was stolen from him by filing lawsuits and seeking new voting rules.
“It is not a speculative risk when the only safeguards are assuming that everybody is going to engage in good faith. We can’t assume good-faith actors anymore,” Sara Tindall Ghazal, a State Election Board member nominated by the Democratic Party, said during a forum at Georgia State University.
An interim election superintendent would have broad authority to close polling places, decide on challenges to voter eligibility and certify results.
Ryan Germany, a member of the Fulton performance review board, rejected the idea that an administrator would refuse to certify an election’s results to benefit a candidate.
“That hypothetical is so far-fetched that it’s frankly absurd,” Germany, general counsel for the secretary of state’s office, said at the GSU forum. “The idea that you can get someone in there and have them do something, it’s just so far from any reality.”
Fulton’s elections office, responsible for nearly 850,000 registered voters, has a track record of problems, and an election monitor installed by the State Election Board found sloppy processes but no evidence of dishonesty or fraud.
Multiple investigations dispelled allegations of counterfeit ballots, ballot harvesting and vote-rigging conspiracies on election night in 2020. Three ballot counts checked the results.
Georgia’s voting law passed last spring, Senate Bill 202, sets up a deliberate process before Fulton’s bipartisan election board could be removed by the State Election Board, which is made up of three Republicans and one Democrat.
After the performance review is completed, the State Election Board will hold hearings and decide whether to appoint a single elections superintendent to replace the county’s bipartisan elections board for nine months.
“Part of the concern regarding the election takeover provisions of SB 202 is that the partisan State Election Board could appoint a partisan temporary election supervisor in a Democratic-leaning county who could then engage in partisan mischief,” said Bryan Sells, an Atlanta election law attorney. “That partisan mischief could include, but is definitely not limited to, refusing to certify results.”
Georgia laws require government officials to verify and certify results, and a refusal to do so could land in court. A judge could then order an election superintendent to certify the election, Sells said.
An unwillingness to certify legitimate election results is just one hazard posed by a replacement superintendent, said Marilyn Marks, executive director of the Coalition for Good Governance, an organization suing over the law’s takeover provisions.
One person in charge of a county’s elections could decide which votes count and which ballots to reject before certifying an election with their desired results, Marks said.
“They get to count the ballots in the dark and they get to choose polling place resources in the dark,” Marks said. “I’m not guaranteeing that anybody in that role would do that, but it is definitely a risk.”
Others say worries about election subversion are an extreme reaction to a need for election accountability in Fulton County.
Matt Mashburn, a Republican member of the State Election Board, said it will be careful as it navigates Georgia’s new process for overseeing county elections.
The state board could also stop short of a takeover if its performance review finds that the county is making improvements.
“Are we going to be remembered for appointing some lunatic that brought on a civil war by doing something crazy? No. We’re going to appoint people that are going to help the system and help the voters,” Mashburn said. “The reason you need a law is because we haven’t been able to do anything about it in the past.”
Steps to take over a county election board
- A three-person performance review board conducts an investigation following a request by a county’s state legislators. Republican legislators in Fulton initiated this performance review in July.
- The State Election Board will hold a preliminary hearing and decide whether to move forward after the performance review is completed. After another hearing, the board could vote to take over a county’s elections board.
- County election boards can be removed if the State Election Board finds at least three violations of state election rules or laws within the past two general election cycles, and if the board has demonstrated malfeasance or gross negligence.
- The State Election Board would then appoint an individual to replace the county’s election board. After nine months, the replacement superintendent could be removed either by the county or the State Election Board.
Key provisions of Georgia’s new voting law
- The State Election Board can replace county election boards after a performance review.
- Absentee ballot drop boxes are limited to early voting locations and hours.
- Absentee voters must provide additional ID such as a driver’s license number, state ID number or photocopy of other identification.
- Volunteers are prohibited from handing out food and water to voters waiting in line.
- Provisional ballots cast in the wrong precinct won’t count.
- Mass mailings of absentee ballot request forms are restricted.
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