New Georgia rules let local boards withhold election certification

Georgia’s state board of elections adopted new rules for local election boards that permit them to withhold the certification of a vote in the face of unspecified discrepancies – a Republican-led move that could cause uncertainty and confusion after future election days.

The five-person board passed the measure in a 3-2 vote. The three board members who voted for it – Dr Janice Johnson, Rick Jeffares and Janelle King – were praised by name three days ago by Donald Trump at an Atlanta campaign rally.

The rule was proposed by Michael Heekin, a Republican appointee to the Fulton election board who refused to certify the presidential primary earlier this year. The rule requires local boards to initiate a “reasonable inquiry” when discrepancies emerge at a poll, and gives the power to withhold certification until that inquiry was completed. It does not define the term “reasonable inquiry”, nor does it establish strict limitations on the breadth of an inquiry.

The new rule essentially makes the certification of election results discretionary, said Democratic state representative Sam Park at a press conference outside of the hearing room at the Georgia capitol.

“These are Maga certification rules, and they’re in direct conflict with Georgia law, which states in multiple places that local elections board officials shall perform their duties, meaning their duties are mandatory, not discretionary,” Park said.

Related: How Georgia state election board’s proposed rules make it easier to challenge results

Debate on the rule centered on how much power state law and court precedent grants to the state board of elections to set rules for local boards. Georgia supreme court case law describes the role of elections supervisors as ministerial with little discretion to declare a vote valid or invalid, said Nikhel Sus, deputy chief counsel at Citizens for Responsibility and Ethics in Washington DC.

“It is contrary to settled Georgia law and would exceed this court’s rule making authority,” Sus said. The law requires disputes about a vote to be resolved with investigations by district attorneys, courts and other bodies, he said.

Board members in support of the rule say that local elections supervisors are required to sign an affidavit declaring that the results of an election are accurate and correct, and that rules should permit elections boards the power to determine the truth of that statement for themselves.

The rule is likely to draw an immediate legal challenge so close to an election.

“By supporting this rule, we are saying that 90 days before the election is not insufficient time,” said Democratic board member Sara Tindall Ghazal.

“I think by supporting this rule, what we’re saying is that we stand with those who have to sign legal documents stating that this information is accurate, and ensuring that they have what’s necessary to stand by that legal document,” replied King, a Republican board member.