President Donald Trump’s personal lawyer Rudy Giuliani came to the Georgia Capitol Thursday to repeat unfounded claims of widespread voter fraud and urge state legislators to use powers experts say they don’t have to appoint Georgia’s electors and hand the state’s Nov. 3 election to the president despite President-elect Joe Biden’s victory.
“That power, right, obligation, is given to you by the founding fathers, deliberately,” the former New York City mayor told members of a special Senate Judiciary Subcommittee. “The founding fathers felt in a situation – I can’t imagine they thought of this one – but in a situation of complexity, the best place to decide would be with the institution closest to the people, and you’re the institution closest to the people.”
Giuliani’s argument is out of line with mainstream legal thought, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
“It’s honestly hard for me to describe something that is so unhinged from reality and groundless, in any kind of substantive legal theory,” he said. “What we’re witnessing is not only, I think, just kind of an anti-democratic attempt to substitute the Legislature’s will for people of Georgia’s will, but we’re seeing something that runs contrary to federal law.”
Trump’s allies made similar state-level arguments across the country in recent weeks, with an aim to overturn election results in Arizona, Michigan and Pennsylvania. Wednesday Giuliani turned a Michigan state House hearing into a spectacle when he took over questioning witnesses.
At the heart of Giuliani’s flawed argument is the Electoral Count Act, which governs the Electoral College and vote counting. The law says if a state fails to make a choice on Election Day, then the state Legislature can appoint electors, said Bryan Sells, an Atlanta attorney specializing in voting rights and election law.
“That’s the small window opening that Giuliani is trying to get the Legislature to go through, but that only applies if the state has failed to make a choice on Election Day,” Sells said. “But of course, the people of Georgia did make a choice on Election Day. We all cast our votes, we were able to hold the election, a winner of that election has been determined, and there are procedures in place for resolving election disputes, and those are currently underway.”
Despite multiple recounts confirming Biden’s win, some Georgians feel the election was unfair to the president. A Monmouth poll released last month found 70% of Republicans believe Biden won due to voter fraud, a baseless claim that has been echoed by President Trump and his circle. Georgia’s two U.S. Senators have called for the secretary of state to resign over unspecified failures in the conduct of the Nov. 3 election.
The committee allowed select witnesses to take turns in the hearing room Thursday afternoon, with voters and poll workers describing anecdotal evidence of suspicious activity at the polls they claim is evidence of more widespread fraud.
Giuliani’s team showed a video they claim shows ballot-counting improprieties at State Farm Arena, where the Atlanta Hawks play. Secretary of State Brad Raffensperger’s office denies the video shows anything untoward. Trump retweeted the video, which had about 300,000 views when it was six hours old.
In a separate meeting earlier on Thursday, members of Raffensperger’s team continued to fight back against allegations of fraud or mismanagement.
“What we’re seeing so far is what I would kind of call the normal amount of — I don’t think fraud is the right word, I think I like to think about more kind of legal votes or illegal votes,” said Ryan Germany, general counsel for Raffensperger’s office.
The office investigates when they receive a specific complaint, and there are about 250 investigations ongoing, he said. There have been about 300 instances of double-voting alleged during the primary and about 70 instances of potential felons voting.
“That’s what we’re looking at, but no, we have not seen anything that would suggest widespread fraud or widespread problems with the voting system,” he said.
Fraught elections are nothing new in Georgia, said Germany, who compared the current tempest with complaints that came up after the 2018 gubernatorial election.
“It was generally from the left after 2018, and now it’s from the right after 2020,” Germany said. “But from my perspective, sitting in the same place on both of those, it’s kind of eerie, how similar the claims are. It’s a lot of the same patterns that one side would call suppression and the other side calls fraud, and that’s what we’re seeing. And what we do is of course, we investigate each of those and see what the facts are.”
Republican lawmakers who convened the hearing appeared to take the claims of fraud seriously, calling for further investigations.
“We need to move deliberately,” said Senate Majority Whip Steve Gooch of Dahlonega. “I would recommend you consider requesting help from the Department of Justice, the Federal Bureau of Investigation and the Georgia Bureau of Investigation to begin a full forensic audit of the Nov. 3 election in Georgia.”
Republicans proposed new voting requirements at the hearing they say will increase confidence in the state’s election system, including a new law that absentee voters provide identification.
Georgia’s election system has room for improvement, but new restrictions are not likely to help, Sells said.
“That really is not, in my view, the right lesson to learn from what we were going through, we don’t need to make voting harder,” he said. “It’s hard enough to vote in Georgia, and our current level of voting security succeeded in carrying off a very difficult election with no incidents thus far exposed of election fraud. So tightening, making it harder to vote is a solution in search of a problem.”
Democrats at the hearing were in disbelief.
“It’s kind of like an Alice in Wonderland moment where you’ve gone down a rabbit hole and through the looking glass and everything gets wavy and seems really confusing,” said Democratic Sen. Elena Parent, an Atlanta attorney. “To me, it seems like a sort of alternate universe that we don’t have a lot of evidence, frankly, and there’s a lot of misinformation or misstatements even being disseminated by some witnesses.”
Tall barriers stand in the way of changing the election’s outcome, both in state and constitutional law, Kreis said.
“There is also a practical issue, where the General Assembly would require a special session for them to come in to even attempt to meddle in the election,” he said. “There’s hurdle after hurdle after hurdle, in terms of the legal mechanisms that prevent them from actually doing what Mayor Giuliani is encouraging them to do.”
Trump called for Georgia Gov. Brian Kemp to intervene with “emergency powers” but the governor’s office shut that avenue off Monday.
The president is due to arrive in Valdosta Saturday for a rally to support the campaigns of GOP U.S. Sens. Kelly Loeffler and David Perdue. Neither senator has publicly acknowledged Biden is president-elect.