Georgia’s New Law, and the Risk of Election Subversion

Can state boards, county boards or anyone else use their administrative powers to flip electoral outcomes? After the November election, a majority of Republican members of Congress and state attorneys general signed on to efforts that would have invalidated millions of votes and brought about a constitutional crisis. With that backdrop, it seems naïve to assume that no one would try to abuse such power, whether in Georgia or elsewhere.It’s worth going back to Mr. Trump’s infamous call. While the oft-quoted line about “finding” votes makes it sound as if he wanted Mr. Raffensperger to manufacture votes out of thin air, Mr. Trump said he had already found the votes, in the form of thousands of ballots he said were cast illegally:“We have all the votes we need. You know, we won the state. If you took, these are the most minimal numbers, the numbers that I gave you, those are numbers that are certified, your absentee ballots sent to vacant addresses, your out-of-state voters, 4,925. You know when you add them up, it’s many more times, it’s many times the 11,779 number.”In addition to the 4,925 out-of-state voters mentioned, Mr. Trump baselessly asserted in the call that there were hundreds of thousands of absentee ballots with forged signatures. He alleged, based on imperfect matches between lists of voters, that there were 4,502 voters who voted but weren’t registered; 18,325 voters with vacant addresses; 904 voters who voted only with a P.O. box address; and nearly 5,000 votes by dead people. And with virtually no evidence whosever, he alleged great malfeasance in Atlanta’s Fulton County, including 18,000 votes having to do with someone who did something nefarious and “3,000 pounds” of shredded ballots.County and state election officials hold a variety of powers relevant to such claims. They evaluate whether to accept or reject ballots, and they certify results. In Georgia, they hear eligibility challenges. It would have been hard to employ these powers to aid Mr. Trump, let alone to survive a subsequent court challenge. But there are levers that they could have at least tried to pull, even if it’s not clear what would have come of it.One option is that the state board could have usurped the power of Fulton County, based on the president’s allegations in the general election and other allegations from the primary (the law requires evidence of failed administration in at least two elections over the prior two years). The state board could have either used the president’s allegations as a basis to refuse to certify the result or to disqualify otherwise eligible voters.It would be hard or even impossible to pull this off immediately after an election. The law requires a fairly drawn-out hearing process before the state can interfere in county elections. The preliminary hearing can’t be held for at least 30 days after an initial petition, which is after the Georgia certification deadline. But perhaps a nefarious board could lay the groundwork earlier, potentially putting a newly appointed superintendent in control before the elections, when he or she would have the ability to pre-emptively disqualify voters and ballots.County election boards heard similar kinds of challenges to voter eligibility during the Georgia runoff. The state Republican Party and a Texas group challenged the eligibility of hundreds of thousands of voters in December, based on whether a voter appeared to match someone on the Postal Service list of people in the National Change of Address Registry. A few small counties actually went through with trying to invalidate voters on this basis.This eligibility challenge was rejected by the U.S. District Court Judge Leslie Abrams Gardner, who happens to be the sister of Stacey Abrams, who narrowly lost the 2018 governor’s race in Georgia to Brian Kemp. But although the eligibility challenge faltered in the runoff, it is not obvious that ironclad protections exist against eligibility challenges, either as a matter of court precedent or federal law. A narrower challenge could have had a better chance of surviving a court challenge. And the new Georgia law makes these kinds of challenges easier, by allowing a single person to challenge the eligibility of an unlimited number of voters.

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