State’s county election takeover in voting law ripe for abuse, critics say

By: - April 6, 2021 3:00 am

Republican lawmakers have cited Fulton County as a major reason they passed a law giving the state new power to take over problematic local election boards. Fulton County election workers sorted absentee ballots during a pilot audit after last June’s primary. Stephen Fowler/GPB

Critics worry that a new Georgia law giving the State Election Board the authority to control county election operations could be misused to try to influence the outcome of close elections.

Georgia civil rights organizations are calling the local election takeover a troubling provision of the sweeping Republican-led overhaul of voting laws by the Legislature, which for the first time grants unprecedented state power to intervene in local boards deemed to be underperforming.

Republican lawmakers called for changes after criticizing the way Fulton County and some other metro-Atlanta counties are running their elections, noting the need for more state oversight to address problems like long lines to vote and ballot security.

One major problem, however, is the new law should better define what constitutes a substandard board, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.

“The metrics for what might constitute justification to take over a local board is so ambiguous at this point that it’s ripe for abuse,” he said. “I think that’s why people are rightfully concerned about this.”

The new law gives the General Assembly the ability to appoint the majority of the State Election Board by removing the secretary of state as the chair.

The state voting board, county commission, or a local legislative delegation could request a performance review over local elections management, which could result in the state board appointing someone to temporarily run local elections.

Giving the state the ability to oversee county voting boards and taking power from the secretary of state were among the top priorities of Georgia Republican leaders following the Nov. 3 general election when former President Donald Trump lost to President Joe Biden by fewer than 12,000 votes. 

In the days after, a national spotlight turned to Fulton’s elections staff counted a record number of absentee ballots, while concerns about how the handling of ballots and conspiracy theories grew among Trump supporters.

In December, a study committee of state lawmakers hosted Trump’s personal lawyer Rudy Giuliani, who spun baseless fraud accusations. In response, several GOP legislators pressed Republican Gov. Brian Kemp to hold a special legislative session, and some members signed onto unsuccessful lawsuits challenging the results.

The reconstituted election board could provide a new avenue if another candidate tried to pressure state officials to overturn an election outcome, as Trump did in a January phone call to the secretary of state and in demands that Kemp resign at the end of 2020 when the governor refused to intervene in the presidential election.

Leading up to the 2021 Legislative session, Republican House Speaker David Ralston pushed for eroding the secretary of state’s autonomy after GOP Secretary of State Brad Raffensperger took a high-profile stand in defense of Georgia’s election integrity. 

Rep. Barry Fleming, a Harlem Republican, whom Ralston appointed to oversee an election integrity committee, would usher through legislation giving the state Legislature and election board more power.

The new election law says that one of the ways an local election board could be suspended is if it’s violated three state rules or regulations within the last two election cycles.

Fleming says the changes should withstand legal scrutiny since it’s modeled after 2017’s First Priority Act that allows the state to intervene in struggling school districts. 

“The state has the power to turn it back over to the school board after the problems have been corrected,” Fleming said. “That model has gone up before our Supreme Court and has been upheld as appropriate and constitutional.” 

Georgia NAACP President James Woodall said it’s clear that key GOP leaders are targeting several heavily Democratic-leaning counties. The NAACP is one of the plaintiffs suing the state over the constitutionality of the new voting laws they say target Black people and other marginalized groups.

“When we talk about how this will impact the certification process or how this will impact whether or not election results are challenged, some of the members who are pushing this literally signed onto lawsuits that would overturn the election results,” Woodall said.

But Republican leaders have said the takeover isn’t intended to toss out results. Instead it’s written in a way to allow the State Election Board to use its expertise to determine what actions are taken. 

While he’s spoken out against losing his state board voting power, Raffensperger also has said he wants the ability to intervene in Fulton and other counties with election boards with a history of problems.

Kreis said there’s a chance that lawmakers could use the new law to try to muddy the certification process. However, those election results would hold up when challenged in court unless there is legitimate fraud that’s uncovered.

Kreis said the most significant threat with the new law is from pressure of a potential takeover discouraging voter engagement tactics or if a person is appointed to run local elections doesn’t have voters’ best interests at heart.

“I think in many respects it has a real chilling effect on innovation to improve turnout and participation across the board,” he said.

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Stanley Dunlap
Stanley Dunlap

Stanley Dunlap has covered government and politics for news outlets in Georgia and Tennessee for the past decade. The Georgia Associated Press Managing Editors named Stanley a finalist for best deadline reporting. The Tennessee Press Association honored him for his reporting on the disappearance of Holly Bobo.