What kind of rules can the Georgia Election Board make?

Georgia elected officials, clergy members, and civil rights groups called on Governor Brian Kemp today to investigate three State Election Board members for what they say are partisan moves to sway the election for Republicans. The Georgia State Elections Board passed major rule changes in recent months, including some that could delay certification in November. Some say these new rules go beyond what the board is legally empowered to do. But what are the limits of the board’s powers? For insight, we turn to Lori Ringhand. She’s a Distinguished Teaching Professor University of Georgia School of Law. 

Peter Biello: So, broadly speaking, what is within the State Election Board's purview and what kind of thing falls outside it?

Lori Ringhand: So the State Elections Board is charged by statute with making rules governing aspects of our elections. What they're doing here is they're making rules that are about what the county boards do in terms of tabulation and canvasing. What that means is that the elections board only has authority to make rules about things that state law gives it power over. And in terms of the rules about canvasing, what state law says is that these county canvasses — there at the county elections board — they're just about tabulations. They're literally about making sure that the numbers that you are reporting up as a county board are accurate based on the face of the votes in the face of the information that you've given. So, in other words, this is not the place where there's a substantive evaluation of underlying claims of wrongdoing in the election. This is kind of math.

Peter Biello: So it seems like that's the point of disagreement. The State Election Board would argue that, yes, allowing for a "reasonable inquiry" — which is one of these new rules — is allowed because that could influence the final count.

Lori Ringhand: I am uncertain about exactly whether this goes beyond the statutory authority or not. There is ambiguity in what the statute permits. It kind of depends on how this is going to play in practice. The question is a "reasonable inquiry" about what? Right? It has to be a reasonable inquiry about something that the county boards are actually tasked with doing. So the reasonable inquiry has to be in the scope of the authority of those boards. And those boards are tasked with receiving, tabulating and pushing up returns. And there are things that are within their zone of reasonable inquiry that are relating to that type of issue. It's not about what they are or whether they themselves are valid. It's about whether the numbers match up. So reasonable inquiry can't go beyond that task because then it wouldn't be reasonable.

Peter Biello: Do these rules set up towns and counties for conflict? In other words, would a town report a certain number and then the county, now empowered to question it, submit a different number?

Lori Ringhand: Well, I think that's the fear, and that's what Secretary Raffensperger has been talking about as one of his concerns with some of these new rules — is that they might create more confusion and more delay. And the Georgia elections bill, SB 202, the big bill that was passed after the 2020 election — that statute, passed by the Georgia state Legislature, is very clear that Georgia elections should come in in a timely manner. So to the extent that new rules introduce delay, that's also a point where they could be in some conflict with what the statute actually authorizes.

Peter Biello: Georgia's Attorney General Chris Carr pushed back on the State Election Board's effort to reopen an investigation into Fulton County's handling of the 2020 election. That investigation was closed in May. The board said it would pursue the investigation with its own attorney if the AG declined, and the AG said, no, you can't do that. Where could a conflict between the AG's office and the State Elections Board be headed?

Lori Ringhand: The elections board can't do anything that it's not authorized to do by the state legislature. It's a creature of the state legislature. So if there is a conflict about the scope of its authority — and in this case, it would be the scope of its — whether it has the power to kind of boss the attorney general around, that would ultimately get resolved in court.

Peter Biello: There is another State Election Board meeting coming up on Sept. 20. What legal complications could arise with rule changes made so close to an election? Because that Sept. 20 meeting would be after the deadline for shipping out overseas ballots. What complications could arise there?

Lori Ringhand: Well, the overseas ballot deadline is actually set by federal law. So if Georgia tried to or if the State Elections Board tried to change a rule that would render those ballots unable to be cast or counted, they'd be in conflict with federal law. And I would expect if federal court would step in, if necessary, to ensure that the federal law protecting overseas and military ballots was implemented here in Georgia. That judicial process, unfortunately, would be the last resort. We would hope we wouldn't get there. But that's a federal law that Georgia's obligated to comply with.