No easy out for Brian Kemp as governor tries to rein in Georgia elections board

As Georgia’s Governor Brian Kemp wrestles with what to do with a seemingly wayward state board of elections that is drawing national criticism for last-hour changes to the state’s election practices born of stop-the-steal election activism, the state attorney general declined to make his job any easier.

Kemp asked Republican attorney general, Chris Carr, to render a legal opinion about the governor’s legal obligation to hold a hearing and potentially remove board members, in light of two ethics complaints filed against the board since a raucous hearing in July raised questions about the legality of the board’s actions. Three board members – Rick Jeffares, Janice Johnston and Janelle King – have attempted to reopen investigation into the 2020 election, citing a finding of error in Fulton county and the continuation of lawsuits by election denialists.

Related: Georgia approves election rule that could delay vote certification

Repeated audits and investigations have found no error in tabulation large enough to overturn the results of the 2020 presidential election in Georgia. Nonetheless, the three board members have approved new rules giving local elections officials wider authority to make a “reasonable inquiry” into elections discrepancies. By leaving the term “reasonable” undefined, the change is setting off alarm bells among critics, who believe local elections officials with partisan intentions will cast doubt on the results if their candidate loses.

Carr’s office earlier this year swatted back the board’s demand to reinvestigate the 2020 election in Fulton county. But it also declined last week to advise Kemp to convene a hearing under the state’s ethics law, because no “formal charges” had been filed for allegedly holding an illegal meeting in August to adopt new election rules.

If the law required Kemp to remove board members, he could do so while claiming to Donald Trump-aligned partisans that his hands were tied. That’s no longer an option. If he does so now, voices on the hard right will rise to say that Kemp is, once again, facilitating victory for Democrats at their expense.

In a state controlled by Republicans, Georgia’s elections board has become a contentious friction point between conventional conservatives like Kemp and Trump allies who continue to press claims of a stolen 2020 election.

Trump praised the board members by name at a rally in Atlanta in August, while trashing Kemp for refraining to stop the Fulton county district attorney, Fani Willis, from pursuing the election interference case against him.

Related: Democrats sue Georgia officials over election rules that could ‘invite chaos’

The board’s behavior puts Kemp in a political pickle. Trump and Kemp have made overtures in the past few weeks to mend the rift. Kemp endorsed Trump in a conversation with the Fox News host Sean Hannity last month, which Trump accepted graciously in a Truth Social posting. But Trump partisans remain deeply resentful of Kemp’s apparent inaction on Trump’s behalf.

For Republicans, the conflict between Trump and Kemp is particularly toxic in an election year. But the board’s actions convey a plain impression of partisan interest, which is also toxic in an election year, as Democrats use the publicity around the election board’s plays to drive turnout.

Even though a majority of Georgians are confident that the 2024 election will be held fairly, the partisan split is enormous. Only 9% of Republicans have confidence in a fair election, according to a poll administered by the University of Georgia in June.

That has primary election implications for Kemp, who is widely expected to run for the US Senate against the Democrat Jon Ossoff in 2026. Kemp is the most popular Republican in the state – more so than Trump – but would face withering criticism for taking unilateral action against a Trump-oriented board.

In the wake of the 2020 election, state lawmakers stripped the secretary of state and his office of some of their power over the state board of elections. The appointment of King, a conservative radio talkshow host, to the swing seat on the board earlier this year has given Trump partisans a 3-2 majority of the board.

Related: Lone Democrat on Georgia state board defends elections amid new rules

At its August meeting, the three members outside of Kemp’s orbit – King, Johnston and Jeffares – voted to demand that the state attorney general reinvestigate claims of irregularities in Fulton county’s election tabulation of 2020, threatening to hire outside counsel to investigate instead.

Carr’s office responded, denying their demand and notifying them that the only lawyers the state board of elections has, by law, are at the attorney general’s office.

Critics such as the Democratic party, who are filing complaints about the board’s actions, suggest that board’s goal is to delay certification in the event of an apparent Trump loss in order to bolster future claims of another stolen election.

The complaint filed by the Democratic party of Georgia and Cathy Woolard, a former chairperson of the local Fulton county board of registration and elections, argues that the board “knowingly and willfully violated state law” by holding the August meeting without proper notice, “and have repeatedly disregarded the advice of the attorney general’s office, turning instead to outside parties for both legal counsel and the substance of proposed rules”.

By doing so, the board had created an appearance of impropriety, the complaint alleges, noting how board members had received a standing ovation at a Trump rally and how Jeffares, had reportedly discussed a position in the Trump administration in public.

Related: New Georgia rules let local boards withhold election certification

The complaint invokes Georgia’s ethics law, which states that the governor is compelled to remove board members who violate the ethics code.

The word “shall” limits the governor’s discretion. But Kemp wanted to know if the letter of complaint constituted “formal charges”.

Staff attorneys from Carr’s office responded on Friday, telling Kemp that it did not.

“‘Upon formal charges being filed’ does not mean that a citizen can simply submit information to the Governor and trigger the hearing process contemplated by the Code Section,” the legal memo says. “Had the General Assembly intended to create an informal process in O.C.G.A. § 45-10-4 that could be initiated by any member of the public, it would have done so as it has in other areas of the law discussed herein. Instead, it provided for a structured process that is only commenced ‘upon formal charges being filed’.”