Georgia Attorney General told the State Election Board in a letter Friday morning, as the board prepared to consider passing a slate of new rules just three weeks away from the early voting period in the 2024 election, that at least several of those rules "very likely" exceed the board's authority.
The meeting began at 9:00 a.m., and as of 11 a.m. on Friday no action had yet been taken on the 11 proposed rules, which have been a matter of significant contention from both Democrats and liberal voting rights advocates as well as Republican state officials.
In August, the Republican-controlled board passed new certification guidelines that critics believe could "upend the required process for certifying election results." Another rule would have local voting precincts hand-count the vote totals at the end of each voting day to check against machine-counted totals.
Carr's letter says seven of the proposed rules "either impermissibly conflict with or otherwise expand the scope of Georgia statutes." Read the full letter at the bottom of this page.
Georgia State Election Board meeting live stream
Those rules include those that would, in the letter's description:
- Proposed Rules 183-1-12-.01 and 183-1-12-.19: Would "seek to change the form of the ballots and require that the Secretary of State and the counties post 'freely accessible link[s]' to a list of electors prior to advance voting and maintain such data files for free download for a minimum of ten consecutive years, respectively."
What Carr said: "... , the proposed rules seek to direct actions that are, by statute, within the purview of the Secretary of State" and "s do not fall within the Board’s regulatory power."
- Proposed Rule 183-1-13-.05: Would "expand the enumerated locations where poll watchers may be designated beyond those places identified in the statute."
What Carr said: "The proposed rule goes beyond the statutorily-designated list of places a superintendent may decide to place poll watchers and instead supplants the superintendent’s discretion with the Board’s own. This too does not carry into effect a law already passed by the General Assembly but rather expands upon the statute; the rule, if adopted, would then very likely be subject to legal challenge as invalid."
- Proposed Rule 183-1-14-.11: Would "require that absentee ballots be mailed 'by United States Postal Service or other delivery service which offers tracking[.]' and "further requires that county boards of registrars maintain as public record the tracking records for each ballot mailed to the electors."
What Carr said: "The Board has no authority to promulgate rules regarding the classification or retention of documents,"and promulgation of the rule would very likely go beyond the scope of the Board’s authority and be subject to challenge as invalid."
- Proposed Rule 183-1-12-.21: Would "expand on the reporting requirements" set forth in current law and "go beyond the statute to require, among other expansions, additional information regarding the substance of the ballots."
What Carr said: "The General Assembly did not include that information as information that must be reported pursuant" to current law and "the rule, if promulgated, would similarly likely go beyond the scope of the statute and the Board’s authority."
- Proposed Rules 183-1-12-.12(a)(5) and 183-1-14-.02(8), (13): Would "amend provisions to allow for hand-counting ballots at the precinct-level, which would appear to occur prior to submission to the election superintendent and consolidation and tabulation of the votes" to "produce a vote total to compare to the ballot count produced by the ballot scanners."
What Carr said: "The statutes upon which these rules rely do not reflect any provision enacted by the General Assembly for the hand-counting of ballots prior to tabulation... these proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do."
Full Chris Carr letter to State Election Board
Georgia Secretary of State's Office also weighs in
The Georgia Secretary of State's Office has also expressed concerns about the board changing any rules ahead of the November election. The Secretary of State's General Counsel, Charlene McGowan, sent a letter on Monday to the State Election Board, writing that they have received an overwhelming number of comments from county election officials concerned about altering rules and procedures with the General Election having been only 50 days away.
"It is far too late in the election process for counties to implement new rules and procedures, and many poll workers have already completed their required training," McGowan wrote. "If the Board believes that rules changes are important for an election, the process should begin much sooner to allow for smooth implementation and training and include the input of election officials."
McGowan also said the board needed to be mindful of upcoming deadlines, such as counties beginning to mail absentee ballots on Oct. 7 and advanced voting starting on Oct. 15.
"The earliest possible date new rules could take effect if passed is October 14, which is 22 days before the General Election when Georgia voters will already be voting," McGowan wrote.
More about the State Election Board
The State Election Board's actions have taken on a higher profile recently with a conservative majority of the board more receptive to activist demands -- largely tied to continued anger over the 2020 election result in Georgia -- for changes to election administration rules.
Former President Trump highlighted the three board members -- Dr. Janice Johnston, Janelle King and Rick Jeffares -- who have steered the board toward endorsing various rule changes submitted by the public, calling them "pit bulls fighting for honesty, transparency and victory."
The board has five members: one appointed by the state House, one chosen by the state Senate, one each from the Republican and Democratic parties, and a nonpartisan chair selected by the General Assembly or by the governor if the General Assembly is not in session when there is a vacancy.
Conservative media personality King was appointed by the House in May, sealing Republican partisan control. Dr. Johnston, a retired obstetrician and frequent critic of elections in deeply Democratic Fulton County, was appointed by the state GOP in 2022. And Jeffares, a former lawmaker close to Trump-aligned Lt. Gov. Burt Jones, was appointed earlier this year by the Senate.
In August, the board voted 3-2 to ask state Attorney General Chris Carr to investigate the Fulton County government over the 2020 election, seeking to reopen an inquiry closed in May.