The State Election Board exceeded its authority by passing new voting rules last year, the Georgia Supreme Court unanimously ruled Tuesday, limiting the Republican-led board’s power.
The 96-page decision upholds a lower court decision that invalidated rules that would have required hand counts of ballots and election inquiries.
The board’s efforts to change Georgia’s voting rules before the presidential election attracted national controversy, highlighting attempts to alter procedures that could affect vote counts.
“Although it is not certain that these rules would actually lead to the rejection of votes that have been cast, the threatened violation of a plaintiff’s rights is sufficient to establish standing” that they were able to sue, Chief Justice Nels Peterson wrote. “The SEB can pass rules to implement and enforce the election code, but it cannot go beyond, change or contradict the (the law).”
The Supreme Court ruling restricts the State Election Board from creating voting policies without the support of laws approved by the Georgia General Assembly.
Credit: arvin.temkar@ajc.com
Credit: arvin.temkar@ajc.com
The court found that four of the board’s rules weren’t allowed by Georgia law, including a hand count of the number of ballots cast and a “reasonable inquiry” before certifying results.
While striking down those rules, the justices found another rule requiring ballot drop boxes to be removed if they’re not under constant surveillance is legal. Two other rules dealing with poll watcher access and daily reporting of vote counts must be reconsidered by a lower court.
The ruling came in a lawsuit by conservative organization Eternal Vigilance Action against the State Election Board and the Republican Party.
The decision overrules a 35-year-old precedent set by the court giving broad authority for government agencies to act “in the public interest” even without a law approved by the Georgia General Assembly. It also mirrors actions taken by the U.S. Supreme Court, which weakened the ability of federal agencies such as the Environmental Protection Agency to create regulations.
“This ruling makes clear: the legislative power belongs to the General Assembly, not executive agencies operating without proper constraints,” Eternal Vigilance Action Executive Director Scot Turner said. “The Georgia Constitution means what it says, and thanks to this decision, the nondelegation doctrine is once again alive and well in our state.”
Supporters of the State Election Board said its rules supplemented state voting laws without contradicting them. They said the rules would have made elections more trustworthy and accurate.
“I am shocked and disappointed that the justices chose to reverse decades of precedent that will negatively impact state government globally,” Georgia Republican Party Chairman Josh McKoon said.
He said he will work with legislators to pass the rules into law next year.
The Supreme Court’s decision said voting procedures are decided by elected representatives, not by an appointed board. The board’s five members are chosen by the Republican Party, Democratic Party, state House, state Senate and governor.
Credit: HYOSUB SHIN / AJC
Credit: HYOSUB SHIN / AJC
Opponents of the rules, including Democrats and election officials, said the rules could have disrupted last year’s presidential election.
An election night count of the number of ballots cast could have led to delays, critics said, and requiring a “reasonable inquiry” before certifying results could have given county election boards an excuse to reject results.
After Republican Donald Trump won Georgia by 115,000 votes in November, county election boards unanimously certified the results — without any controversy over vote-counting procedures the State Election Board tried to change.
Without the ability to create these kinds of voting rules, the State Election Board’s authority is more constrained.
While the board will still be able to pass rules that detail how to comply with state laws, its primary role is to review investigations of fraud and irregularities, with the power to impose fines up to $5,000 per violation and refer allegations to prosecutors.
Georgia Supreme Court ruling on State Election Board rules
Rejected
- Requiring county election boards to conduct an undefined “reasonable inquiry” before certifying results.
- Mandating an election night hand count to verify the number of ballots. Poll workers would have counted the number of ballots but not votes.
- Empowering county election board members to examine any election-related materials before certifying results.
- Requiring family members or caregivers to provide a signature and photo ID if they drop off an absentee ballot for someone else.
Valid
- Requiring removal ballot drop boxes if they’re not under constant video surveillance outside of voting hours.
Remanded to lower court
- Expanding access for partisan poll watchers inside vote tabulation areas.
- Publicizing daily reports of the number of early and absentee voters, accessible 24 hours a day, categorized by partisan and nonpartisan races.
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