Will the Georgia MAGA Election Committee rig the election in favor of Donald Trump?

The Georgia State Board of Elections recently enacted two new rules that appear to be aimed at allowing local election officials to sabotage the state's vote-counting process. Republican candidate Donald Trump praised the three board members who supported these new rules, all of whom had previously questioned the outcome of the 2020 election, which Trump lost, as “pit bulls fighting for honesty, transparency and victory.”

The rules aim to change the role of local election officials, known as superintendents, whose job it is to collect vote counts at polling places in their jurisdiction, tally them and report those numbers to the Georgia Secretary of State. For at least a century, the Georgia Supreme Court has held that this duty is “purely ministerial” and that these superintendents “have no right to rule on irregularities or fraud” in an election.

However, the first of the state panel's new rules says that before certifying an election, local superintendents must conduct a “reasonable investigation” to ensure that the results are “a true and accurate reflection of all votes cast in that election.”

This overturns the long-standing rule that election officials merely perform the ministerial task of counting votes. Local election officials would be given sweeping new powers to look for alleged irregularities in an election and to refuse to certify an election if they claim to have found any.

The second rule states that all county election board members must have access to “all election-related documents created during the conduct of the election prior to the certification of the results,” although the rule does not define which documents must be provided. In much of Georgia, county election boards also serve as superintendents who count the votes in that county.

To be clear, Georgia election law already allows parties who believe there was misconduct, fraud, or other irregularities during an election to file a lawsuit challenging the outcome. This allows questions about whether the original count was reliable to be decided using the same evidentiary rules that apply in any other Georgia court case, after parties on both sides of the dispute have had a chance to file briefs.

The state panel's new rules, on the other hand, allow local election officials to comb through documents to look for irregularities and then refuse to certify the results on the grounds that the election was not properly conducted. Moreover, if Trump loses in Georgia in November, his campaign will very likely push local officials to use that power aggressively, in a manner similar to the pressure Trump and his allies put on local officials in 2020.

There are several ways to defeat the new rules before November. Earlier this week, the Democratic Party and several Democratic officials filed suit challenging the new rules. The suit alleges that the rules violate state election law, which requires election officials to certify all local election results by a certain date. Additionally, the new rules violate state Supreme Court rulings limiting the role of those election officials, and furthermore, the state board did not follow proper procedure in drafting the new rules.

Meanwhile, Governor Brian Kemp, a Republican who has clashed with Trump in the past, recently asked the state's attorney general for “guidance” on whether Kemp had the authority to fire the three MAGA board members responsible for the new rules.

So there's a good chance that, one way or another, the new rules won't be in place when elections are held in November. But if the State Council's move succeeds, prepare for chaos.

The Democrats' lawsuit against the Georgia State Election Commission was only filed last Monday, so it remains to be seen how the state's courts will handle this brand-new lawsuit. Still, in its initial filing, the party argues persuasively that Georgia law does not allow local election officials to delay the certification of an election or to rule on election-related disputes.

The lawsuit's theory of how elections should be conducted in Georgia is straightforward. After votes are cast, local election officials count them within a tight deadline. Those results are then sent to the Secretary of State, who tallies them himself and certifies the result to the governor, also within a tight deadline. In addition, in a presidential election year, federal law requires the state to appoint members of the Electoral College “not later than six days before the time fixed for the meeting of the electors.”

A missed deadline can trigger a whole chain of consequences. If a local superintendent fails to meet his deadline, it can set off a cascade in which higher-ranking officials also fail to meet their deadlines—unless they completely exclude the votes from the recalcitrant superintendent's jurisdiction.

Election challenges can occur, but they are decided by courts, not election supervisors. In addition, Georgia state law requires officials to re-certify an election if a successful challenge changes the outcome.

The Democratic Party's legal theory is supported by several provisions of Georgia's election law. First, state law sets a mandatory deadline for local election officials that results of local elections “must be certified by the election official no later than 5:00 p.m. on the Monday following the day of the respective election.” So, state law doesn't just give local election officials a tight deadline; it says they “must” certify an election regardless of what they think about the outcome.

So while superintendents can exercise some authority in the few days between an election and the certification deadline—perhaps by tracking down some precinct results that were mistakenly not transmitted, or by correcting transcription errors made during the counting of election results—they cannot refuse certification after the deadline. Allowing superintendents to do so could not only cause the state to miss important deadlines, but it also gives an extraordinary amount of power to unfamiliar local officials who are not at all equipped to resolve election disputes.

This interpretation of state law is supported by other provisions of state law cited in the Democratic Party's lawsuit, as well as by state Supreme Court decisions such as the 1926 decision. Bacon vs Blackthe case in which it was found that the superintendent's duty to certify an election was of a “purely ministerial” nature.

The practice in the state of Georgia of instructing local election officials to simply count the votes and leave election-related disputes to the courts also appears to be a long-standing practice that is applied almost universally throughout the United States.

In its lawsuit, the Democratic Party cites a 2024 legal journal article on election certification that states: “[b]By 1897, the ministerial, compulsory nature of the certification of tax returns was so well established that a leading treatise declared:[t]The doctrine that election boards and election judges are departments without discretionary or jurisdictional power is well established in almost all or nearly all states.” In other words, the Democratic Party of Georgia is not asking for anything unusual. It is asking the state to conduct its elections in the same way that almost all states have done since the McKinley administration.

Meanwhile, the three MAGA members of the State Election Board don't just seem to want to overturn Georgia's election law. They also seem to want to overturn the practice of conducting elections in the United States that has been in place since the late 19th century.

It remains to be seen how the courts in Georgia will react, but the Democrats' case against the state election authority appears to be quite strong.