A clue to a new election assault?

Georgia Republicans allow counties to delay certification of elections

Over the past few weeks, there has been an alarming development in the newly in-play state of Georgia. Earlier this month, the state’s independent Election Board passed a new rule that would allow county election boards to investigate elections and potentially delay the certification of election results. Critics are concerned that the new rule could be abused by partisans to try to avoid certifying election results that they don’t like.

The story begins with the appointment of three new members to the five-member board earlier this year. In January, Gov. Brian Kemp appointed a new chairman, John Fervier, a former Waffle House executive, and the state Senate approved a former senator, Rick Jeffares. In May, the state House speaker appointed a media personality and political activist, Janelle King, to a seat the House controls. The Democratic and Republican parties also have seats on the board.

Photo by Samantha Sophia on Unsplash

Fast-forward to August and the newly renovated board passes a new rule that defines certification as “attest[ing], after reasonable inquiry, that the tabulation and canvassing of the election are complete and accurate and that the election results are a true and accurate accounting of all votes cast in that election.”

As NBC News noted, the phrase “reasonable inquiry” is new and not defined.

You might think that inquiring into election results is a good thing, but Georgia already has a process for investigating election fraud and county board members are not trained for such inquiries. The new rule, passed less than 90 days before the election, does not give them much time to learn either.

The new elections rule, passed by a 3-2 vote, may conflict with existing state law.

“While the certification is largely ceremonial, it’s still got to be done to be processed, and if it’s not done there better be a darn good reason,” Mike Hassinger, a spokesman for Georgia Secretary of State Brad Raffensperger, told NBC.

If there is any doubt about the board’s intent, consider that at the same time it passed the new rule, it also voted to reopen the investigation into Fulton County’s handling of the 2020 election. For those who may not recall, Georgia recounted its vote three times in 2020 and affirmed Joe Biden’s victory each time. The Trump campaign failed to prove any widespread fraud or irregularities in the election, and a state investigation cleared the Atlanta-area county of wrongdoing. Nevertheless, MAGA conspiracy theories have persisted.

Donald Trump has politicized the elections board and singled out the three members who passed the rule for praise at the same rally in which he attacked Gov. Kemp.

“I don’t know if you’ve heard, but the Georgia State Election [Board] is in a very positive way,” Trump said. “They’re on fire; they’re doing a great job. Three members: Janice Johnston [the Republican Party board member], Rick Jeffares, and Janelle King. Three people, they’re all pit bulls fighting for honesty, transparency, and victory. They’re fighting.”

Interestingly, the new chairman appointed by Kemp opposed the rule change and has been outspoken about the need for the board to remain nonpartisan. Fervier said that the board’s code of conduct prohibits partisan activity and conflicts of interest. Election board members should definitely not be fighting for a Trump victory.

Certification of elections sets the timeline for other aspects of the election. Recounts are not automatic in Georgia and candidates must request a recount within two business days of certification. Candidates have five business days to contest the outcome of an election. There are also constitutional deadlines in a presidential election. States must issue certificates of ascertainment six days before electors meet. This year, the certificates are required by December 11 and electors meet on December 17. If county election boards refuse to certify their results, this entire timetable could be threatened.

What we’ve discussed so far is fact, but let’s move into hypothetical territory. What could happen if some counties refuse to certify? It isn’t clear whether the state could certify its result without having all county elections certified. Depending on which counties are not certified, this could change the results of the state’s election.

CREW (Citizens for Responsibility and Ethics in Washington) has reportedly identified “35 rogue election officials across the country who have already refused to certify election results and may be in a position to do so again.” These officials are located in Arizona, Colorado, Georgia, Nevada, New Mexico, North Carolina, Pennsylvania and Michigan. If this list looks familiar, it should. Many of these states are perennial battlegrounds and several were the scene of MAGA election challenges in 2020.

This is speculative, but I believe that the Georgia election rule may be part of an effort by the Trump campaign to set the stage for another attempt to steal the election. I would be surprised if there were not similar efforts to make it easier to overturn election results in other states besides Georgia.

One possible scenario is that MAGA-leaning county election officials might refuse to certify their results on dubious grounds if and when Trump loses Georgia. The delay in county certification could cause the state certification to be delayed. The delay and a possibly altered outcome could lead to competing slates of electors. Competing slates of electors would give congressional Republicans grounds to challenge electoral votes and possibly have the results of entire states thrown out.

This might mean that neither candidate has a “Majority of the whole Number Electors appointed” and thus no winner of the Electoral College vote. If that is the case, the Constitution specifies a tiebreaker:

If there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.

In the event of a tie, the House gets to choose with each state delegation getting one vote. And Republicans currently have a majority in the House and control the majority of state delegations. Personally, based on history, I would not trust Republicans to do the right thing when it comes to Donald Trump. The wild card is that the new Congress will be sworn in on January 3, 2025, three days before the Electoral College meets on January 6, and may be radically different than the current Congress if 2024 morphs into a blue wave year.

Ironically, a delay in certification that would presumably originate in red counties might also affect congressional races. Not certifying results could deprive Republicans of House votes that Trump would need to make the scheme work.

If this scenario sounds familiar, again it should. It’s the same playbook that Trump attorney John Eastman laid out for Republicans in 2020. It didn’t work then, but MAGA may be hoping for a second bite at the apple.

In 2024, there are some new safeguards in place. In 2022, President Biden signed the Electoral Count Reform and Presidential Transition Improvement Act of 2022 (ECRA) to clarify some of the vague language in the Electoral Count Act of 1887 that Trump loyalists attempted to game to their advantage. Among the changes are a higher threshold for objecting to a slate of electors (one-fifth of the members of both the House and the Senate), a requirement to clarify who the executive of each state is with responsibility for electors, a requirement for a “security feature” on certificates of ascertainment, and a clarification that the vice president’s role is “solely ministerial.” Vice President Harris will not be able to throw out the electoral votes of Trump states and tally the result with herself as the winner.

There are also legal remedies. In Georgia, Gov. Kemp and Secretary of State Raffensperger have shown themselves to be objective and law-abiding officials (to the consternation of Trump and MAGA). They can most likely be trusted to obey the law and push counties to certify. This is not the case in all states, but it underscores the need to elect people of good character to government offices, not just people who are popular or have the correct partisan affiliation.

Those legal remedies may extend to court injunctions requiring counties to meet certification deadlines. So far, courts have not been sympathetic to Trump’s attempts to overturn election results. Even his appointees on the Supreme Court gave his appeals a chilly reception in 2020, but again, the longer Trump is able to appoint loyalists to the bench, the more likely it is that he will be able to find judges to sign off on his unethical and unlawful attempts to maintain power. This is yet another reason why it is imperative that Trump not be reelected.

Even though some recent Supreme Court decisions involving Donald Trump left a lot to be desired (I’m nodding toward the decision on presidential immunity here), it would almost certainly be a bridge too far for the Court to allow Republicans to throw out the ballots of entire states in order to tip the election to Donald Trump. I say “almost certainly” and I don’t like the doubt that I feel based on the Court’s recent cases, but the justices would have to know that such a move would likely spark widespread political violence and possibly touch off a civil war.

As the election approaches, I’m reminded of a maxim often quoted by Herman Cain, a one-time presidential candidate and former Atlanta talk radio host. Cain was fond of saying, “If it ain’t close, they can’t cheat.”

Although Cain was talking about Democrats at the time, the rule also applies to MAGA today. If the results in Georgia aren’t close, it will be difficult for MAGA activists to find reasons to block certification. If there is an Electoral College landslide rejecting Donald Trump, it will be more difficult for Republicans in Congress to toss out enough states to change the outcome.

Secretary of State Brad Raffensperger posted on the platform formerly known as Twitter, "Georgia’s Election Integrity Act requires counties to certify the election results by November 12th and we fully anticipate that counties will follow the law.”

That would be the best outcome, but given MAGA’s history of shenanigans, which includes tampering with voting machines in at least one Georgia county in an effort to prove their conspiracy theories, Trump loyalists in Georgia and around the country need to be watched closely and held accountable if they try to skew the outcome of the election. A big reason that we are facing a potential election crisis this year is that Trump wasn’t held accountable for 2020.

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