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We at CGG are quite familiar with the SEB’s long-running inclination to overreach and sidestep the law, and we have our own troubled history with the SEB. However, the recent events merit objective scrutiny of the merits, law, and facts.
THE CURRENT RULE-MAKING DEBATES
At CGG, we seem to hold a minority perspective on the current SEB debates. A few weeks ago, we warned that the hyper-partisan, emotionally charged battle should cease and that reason should prevail. Instead, the situation has escalated on a national stage, with more mistrust, misinformation, and needless recriminations spiraling out of control with needless alarmist rhetoric.
Delaying Election Certification?
We fear that the over-the-top bombast was generated by exploiting a slight misuse of terminology concerning the considerable canvassing and certification duties of the county boards of election, which occur in a near simultaneous two-step sequence after the election.
We offer some objective facts to the escalating debate over the certification rules:
FACT: The oath each county board member must take:
I,_____, do swear (or affirm) that I will as a member of the board of elections duly attend all ensuing primaries and elections during the continuance thereof, that I will to the best of my ability prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of such primaries and elections, and that I will at all times truly, impartially, and faithfully perform my duties in accordance with Georgia laws to the best of my judgment and ability.
FACT: Georgia law requires these duties of the county election board (in addition to others)--
§ 21-2-70(8) To instruct poll officers and others in their duties, calling them together in meetings whenever deemed advisable, and to inspect systematically and thoroughly the conduct of primaries and elections in the several precincts of his or her county to the end that primaries and elections may be honestly, efficiently, and uniformly conducted;
(9) To receive from poll officers the returns of all primaries and elections, to canvass and compute the same, and to certify the results thereof to such authorities as may be prescribed by law;
The county board’s combined canvassing and certification duties are far more than “form filling.”
- FACT: The SEB has no role in certifying elections in Georgia. County boards certify results, which are then consolidated and certified by the Secretary of State for all state and federal offices.
- FALSE CLAIM: The SEB wants the ability to decertify election results. [Fact: There is no such discussion occurring, and "decertification" is not a recognized process.]
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FACT: There are two key steps leading up to county board certification of elections: Canvassing and Certification.
- The county election board must first canvass the election returns to ensure that all precincts have reported, all valid votes have been counted, provisional ballots have been properly processed, military votes arriving after Election Day have been included, and other administrative checks and balances have been completed. See the EAC’s guidelines for canvassing here. (The board’s duties are not just “filling out forms” as Marc Elias proclaims.) Georgia statutes (O.C.G.A. §21-2-493) require the county board to investigate discrepancies to produce an accurate canvass before certifying the election results, which is a mandatory duty. However, Georgia’s canvass procedures are considered materially insufficient and unreliable by experts.
A noteworthy example of the county election board investigating prior to certification to achieve more accurate results, including an outcome-changing recount is the May, 2022 DeKalb primary. This only occurred after considerable pressure from the public and candidates. The then board chair initially repeatedly insisted that the tabulations were accurate, but the board finally agreed to investigate as part of its canvassing process.
- FALSE CLAIM: The county board has no authority to investigate reported results and underlying documents. [Fact: The board actually has the statutory duty to produce an accurate canvass and conduct investigations necessary to achieve that accuracy before presenting the returns for mandatory certification. See O.C.G.A. §21-2-493. Also see the EAC Guidelines.]
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- FACT: No one has proposed rules to delay certification, and some proposed rules have reinforced the post-election 5 PM Monday deadline as mandatory. The SEB would have no power to do so.
- FALSE CLAIM: The SEB and petitioners are extending certification deadlines.
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- FACT: Certification is an enforceable non-discretionary, "ministerial" duty that must be completed by the statutory deadline. The SEB has not considered granting any exceptions to this requirement, nor do they have the power to do so.
- FALSE CLAIM: Petitioners and the SEB have made certification a discretionary act to create delays. [Fact: The SEB has no authority to change the statute on certification deadlines, nor have we seen any efforts to do so. Read the calmer perspective in what Law Professor Derek Muller has to say about these concerns.]
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- FACT: Virtually all election documents (except ballots) are public records, legally intended to be readily available for prompt inspection upon request. See O.C.G.A. §21-2-72.
- FALSE CLAIM: SEB and petitioners want county board members to access documents they are not entitled to review. [Fact: County board members, as the senior election officials in their counties, are entitled to review all their department’s election documents.]
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- FACT: Contesting an election outcome in court is expensive, exceedingly slow, and delays finalizing the outcome. It should only be attempted when all other alternatives have been exhausted.
- FALSE CLAIM: The county election board should not attempt to resolve discrepancies but rather let the losing candidate file a lawsuit. [Fact: The board has the responsibility to document an accurate canvass and resolve discrepancies in their canvassing process, just before certification.
Since the rollout of the new voting system, material tabulation errors have occurred because no accurate canvass was completed before inaccurate results were certified. Some errors required re-certification to achieve more accurate final results. (here, here, here, and here) "Re-certification" is not a legally sanctioned concept, but it has been necessary to correct multiple inaccurate certifications, which should have been avoided with accurate canvassing. ]
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Allegation: The SEB wants to permit questioning of results for partisan advantage. [Fact: All candidates and voters, regardless of party, benefit from accurate vote counts and transparently resolved discrepancies before timely certification.]
In summary, on the certification point, the petitioners and the SEB should have been more precise in seeking rules for obtaining necessary documents for county boards’ canvassing by using that term, rather than combining the desired access under "certification," which has allowed space for confusion and false allegations. The opponents should have paused to recognize that county boards have pre-certification canvassing duties that require much more than “form filling.”
Proposed Solution: Ensure that the county board has timely access to all available information needed for a complete and accurate canvass, and the correction of discrepancies. Set deadlines such as 8 am on the Monday following the election for completion of canvass prior to the 5pm deadline for the next step of certification. Make all canvassing documents available to the public, press, and candidates.
OTHER CONTROVERSIAL RULE PROPOSALS
Election Night “Counting” of Ballot Pages at Precincts
- FALSE CLAIM: New rules require hand counting of votes at precincts on election night, delaying results.
- FACT: There is no proposal or adopted rule seeking hand counting of votes at polling places on Election Night. The rule simply requires accounting for all ballots cast and counted at the polling place—a standard best practice codified in many states’ statutes. There is no unnecessary delay caused by this rule. The petitioner’s careless terminology (“hand-counting”) and the opposition’s readiness to set off panic alarms have caused needless confusion.
The new rule requires accounting for all ballots before they are removed from the publicly observed polling place and transmitted to the election office. While we believe that three counts of the number of ballots is excessive, it only takes a few minutes to account for voted ballots. Misplaced ballots are often discovered after the election, stuck in the scanner write-in bin, the emergency scanner drawer, or at the bottom of the scanner. Test ballots have also been found in scanners. The time to sort out these issues is at the polling place, under public and bipartisan observation—a process that protects poll workers responsible for delivering the correct number of ballots to headquarters, and avoids mad searches for stray ballots days later.
The petitioner erred in calling this ballot control exercise "hand counting the ballots," giving the misleading impression of hand counting votes at the polling place. The opposition (including the Secretary of State and even the ABA Democracy Task Force, ridiculously claiming these exercises are “manual recounts.”) reacted to "hand counting" without reading the petition, which merely calls for accounting for all ballots before leaving the polling place.
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- FALSE CLAIM: Poll workers "handling" ballots (accounting for them) on election night is a security risk.
- FACT: Poll workers are sworn election officers conducting the election in public, with oversight by bi-partisan poll watchers. They routinely handle ballots, machines, memory cards, poll books, voter lists, and voter PII as part of their jobs. The organizations working hard to recruit and defend poll workers should stop denigrating their honesty by suggesting that they shouldn’t handle ballots in the shut down of the polling place.
Our question: Why would anyone (particularly the Secretary of State) possibly object to the standard practice of taking a few minutes to account for all ballots in public view before closing down the polling place and sending the ballots to the election office?
Clarification of Observer Scope and Locations for Ballot Processing
CGG members have accumulated extensive election observation hours focused on the technical aspects of Georgia’s elections over the last seven years. We speak to this issue with expertise.
- FALSE CLAIM: SEB is permitting countless partisan observers in the tabulation center who can disrupt and delay the ballot counting.
- FACT: The SEB approved a rule that defines the scope of observation stations.
Georgia has strong public oversight laws, but weak enforcement of those laws, as county officials often resist and block public observation and the adequate deployment of poll watchers. It is in every candidate’s and party’s best interest to have full and meaningful observation of the vote tabulation process. There are already statutes that enable officials to remove any disruptive individuals. The vast majority of ongoing unresolved 2020 vote counting and audit controversies could have been resolved before the election was certified if all counties had permitted meaningful observation of ballot scanning and auditing.
Double and triple vote counting would not have occurred if observers had been allowed to monitor the process closely. Unfortunately, during the 2020 elections, we, along with other appointed observers and members of the press, were kept so far from the activities that it rendered the observation process meaningless, preventing observers from helping detect problems and prevent discrepancies, which is the proper role of appointed watchers/observers.
Did the Legislature Weigh In on these New Rule Proposals?
The rule-making process under the Administrative Procedures Act wisely provides a role for the General Assembly to object to any rules under consideration by the SEB that violate state law or legislative intent. The House and Senate standing committees on elections were sent copies of the proposed rules, giving them the opportunity to weigh in and object. To our knowledge, no objections or even questions to the SEB were raised by those standing committees of the General Assembly or their members before the adoption of the recent rules.
Secretary of State’s Role in the Controversies
Secretary Raffensperger has been throwing stones at the petitioners and the SEB from a distance, even though most of the controversies being addressed fall under his office’s responsibility.
- FACT: Secretary Raffensperger is an ex-officio member of the SEB but has not attended a meeting since he was removed as chair and appointed as ex-officio in 2021. He has abdicated his statutory assignment and duty to contribute his office’s perspectives and assistance to the SEB in that ex-officio board member role.
- FACT: Secretary Raffensperger has failed to provide counties with written canvassing procedures that are crucial to ensuring that election results are accurately stated. Sloppy, inaccurate canvassing and certification have occurred in multiple elections in recent years because election officials need written forms and guidance on properly canvassing and testing election results.
- FACT: Secretary Raffensperger’s office and the SEB have failed to provide rules or instructions for election board members on what the proper procedures are for certifying results when there are unresolved material discrepancies. For example:
- What should a board member do when they cannot convince their fellow board members to reasonably examine problematic ballots for potentially uncounted votes, as happened to voting rights hero Helen Butler in 2020?
- What should a board do when there is a material unreconciled difference between the ballots counted and the number of voters who showed as voted in the poll book, and they cannot locate the source of the discrepancy?
- What should a board do with ballots scanned and counted from machines that have been taken out of service due to alleged misprinting of votes?
- What should a board do if they discover that the wrong ballot style with the wrong ballot content was issued to a substantial number of voters?
- What should a board do if they find that test ballots have been counted in the results?
CONCLUSION
We view the current partisan rancor and dissemination of misinformation as extremely harmful to the democratic process. We urge all parties involved in these debates to focus on the fundamental principles of transparent, citizen-run elections with robust citizen oversight. In Georgia, it should be clear that more election transparency, citizen oversight, accuracy, and accountability are essential—not less!
The efforts to make elections more transparent and accountable in Georgia may be a little clumsy, disorganized, and not well coordinated. However, the robust debates on these matters are ultimately crucial and long overdue after years of SEB inertia. Institutional disruption was to be expected after years of ineffective State Election Board governance and inertia. We encourage all parties and candidates to engage with the SEB more, not less!
The political parties understand elections, have competent attorneys, and know where the weaknesses in the processes lie. They should be encouraged to submit rules for consideration. They can help move the SEB’s rule promulgation towards a more professional and less contentious development of best practices for fair, accurate, and secure elections.
Our Recommendation-
As a final suggestion, modeled after practices we have observed in other jurisdictions, we propose that the staff of the SEB, Secretary Raffensperger’s senior staff, and the senior staff and attorneys of the political parties conduct weekly meetings starting now through the final certification of the November election. These meetings could be used to jointly anticipate, address, and resolve problems while sharing information and concerns. Such collaboration would quickly render the current rancor and ongoing SEB wars unnecessary. The SEB has the authority under provisions of O.C.G.A. §21-2-33.1(a) to issue orders for the enforcement of Georgia election law and can with the support of the parties, and Secretary Raffensperger efficiently avoid anticipated continuing problems.
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