Guest Post by Prominent Atlanta Attorney
The 2020 election and runoff put the Georgia Legislature in a hole. They are trying to dig out by new bills to “improve election law.” There are bills on absentee voting, on poll watchers, and holographic ballots. There are bills to introduce a new election Czar into the process – a Deep State person with experience as a poll watcher. There are bills on eligibility, chain of custody, and prohibiting drop boxes. (Hint: They were already prohibited.) An omnibus bill is in the works, supposedly.
But what if the existing election laws had been enforced as written? As written:
Georgia counties would have – monthly -- scrubbed their voter rolls and removed dead voters and persons listed on the national change of address database. Boards of Elections (BoEs) would have removed voters identified as ineligible. Absentee ballot signatures would have been verified and rejected by single poll workers – not subject to the formation of committees under an unconstitutional consent decree.
The supervisors of election (SoEs) would have been less dictatorial in preventing Republican poll watchers from watching – and would not have imposed lifetime bans on poll watchers without due process. Absentee ballots would not have been opened in back rooms before election day. Recounts would have been meaningful and not subject to a top down adjustment. Voters would have been treated equally.
The Dominion Voting Machines might have been reviewed the way that the election officials in Texas reviewed them – and rejected them. Judge Amy Tottenberg’s cautionary statements about those machines in an October ruling would have been heeded, at least to provide a meaningful audit trail.
The Secretary of State reports that the election was fair and conducted in accordance with the Legislative framework. Not many grassroot Republicans believe him. Most voters share that skepticism and many question the integrity of the election laws. We are a long way from restoring confidence.
But confidence is not as easily regained as it is lost. Restoration of trust requires that everyone in the system – the election officials – state and local, the parties, the candidates, election lawyers, and most importantly, the BoEs and the courts – are committed to enforcing the laws as written, enforcing them equally, and providing clarity and transparency.
During the two years leading up to the election, the Democrat party and its affiliates brought a series of lawsuits to increase the chaos in the election system. They challenged the order of the names on the ballots. They challenged the use of a “year of birth” certification on the outer envelopes of mail-in ballots. They challenged the removal of voters from the rolls – even though that process was mandated by federal law – and ineligible names were added back to the rolls – some say as many as 700,000 names were added that were ineligible. Many of those voted.
The “Coalition for Good Governance” sued to change the date of elections, to dispute the use of touchscreens, to challenge all machine voting, to open early voting on weekends, to permit curbside voting, to provide for mobile “pop-up” voting polls, to challenge the electronic “PollPads,” to provide for more PPE during Covid, to provide for elector oaths to be given orally at polling stations (instead of making the voters sign in with the required signature).
In a 66-page complaint filed by the “New Georgia Project” controlled by Stacey Abrams, the Democrats challenged the time frame for receipt of absentee ballots, the failure to provide pre-paid postage ballot return envelopes (calling the purchase of a stamp a “poll tax”), the ban on “assistance” for non-family members (ballot harvesting), the time frame for registering, requesting, and opening an absentee ballot, and even the Legislature’s use of the word “promptly.”
They threw everything against the wall – partly hoping that something would stick. And partly just to keep up the media narrative of “voter suppression.”
Other states faced the same onslaught. Ken Paxton, the Attorney General of Texas, in bringing suit against Georgia, among other states, noted that “[Texas] had 12 lawsuits … that dealt with mail-in ballots, that dealt with voter certification, that dealt with all types of election issues ….” Texas won its lawsuits; Georgia folded like a cheap suit, entering into consent decrees, accepting court rulings that prevented asking for “year of birth” as identification – and the Legislature even went along with that. But Paxton’s comment highlights that a functioning state government will defend and enforce its own laws.
And when faced with evidence of ineligible voters and voting abuse, Georgia election officials refused to enforce the legislative framework. They feared of lawsuits by the New Georgia Project or the Coalition for Good Governance, or the ACLU, or the NAACP, or a dozen pop-up groups designed to increase the chaos in the election system. The Fulton County Republican Party identified 14,000 ineligible voters in one canvassed area – the Fulton County BoE refused to hold a hearing to consider the evidence.
Other county BoEs were threatened with lawsuits by the NAACP and ACLU if they even held a hearing and refused to hold hearings to clean up the rolls. Two counties that did – Muscogee and Ben Hill – held a hearing, were sued by the New Georgia Project (formed by Stacey Abrams), and were forced to recant by a Federal judge (Stacey Abrams’s sister). The rolls have still not been purged of dead, ineligible, double-registrered, and out-of-state voters. BoEs have also refused to hold hearings on issues of voter fraud, improper dropboxes, and other election issues.
Not only have the state election officials refused to enforce the law as written, they have vigorously opposed public oversight. When one voter asked for open records as to why absentee ballot requests were being sent for persons who did not live at her house – even when she had them removed from the rolls earlier – she was told she could not get documents because her request related to “pending litigation.” Other open records requests to the Secretary of State have gone unanswered for weeks and months.
State officials have refused to take action to prevent persons providing “gifts” to voters – a customized paint job with New Georgia Project slogans and hashtags was found on a food truck parked outside numerous voting locations – the focal point for campaign stops and political rallies, providing free coffee and doughnuts – all in violation of state law. Whatever entities paid for the food truck and the custom paint job conspired to violate state law – a 10 year felony. No one has been investigated.
Even when double voting was encountered – as in the 2020 primary, when more than 1,000 voters voted twice (according to the Secretary of State), no enforcement actions were brought. The State Board of Elections is now frantically holding meetings to clean up the backlog of cases that have been brought – some going back to 2015 and before. The one thing that is not being discussed is bringing in an outside auditor – an auditor with power to audit the voting machines, the ballots, and the signatures.
The courts have been a disappointment to many voters who expected they would be treated equally. A lawsuit brought in the Fulton County case referenced above sought to force the BoE to hold a meeting and hear the evidence – it was dismissed. Even though an emergency appeal was sought before the election, the appellate court did not docket the case for hearing until more than a month after the November election.
The courts have also used standing, laches and sovereign immunity to keep the evidence from being heard. Courts have denied standing to the President, to Electoral College electors, to candidates, to state parties, to county parties, and to voters. The Supreme Court denied standing to the State of Texas. What does a litigant have to do to get evidence in a case?
Judge Steven Grimberg – a Trump appointee, but with experience with the Secretary of State and its lawyers – denied standing to a voter despite Supreme Court precedent. The judge, supporting the legal milieu of state government, could have ended the case by denying standing, but went further and ruled in dicta on the merits, holding that the unequal treatment occasioned by the lack of compliance with the State legislative framework was nonetheless “consistent with state law” and simply added an “additional safeguard” to ensure “consistency” among the counties. But the Legislature did not mandate consistency among the counties, just that County election officials had the power to recognize mismatched signaturest.
It is not that the judges are not capable of understanding the Constitution or the law. It is not that they could not have observed – if they wanted – that the change of process in the Legislative framework had a statistically significant outcome on the election. It is not that they could not have shut down the dropboxes or the unlawful time periods for receiving absentee ballots.
It is that they want to get rid of the case – they just don’t want to have to make a hard decision. Whether apocryphal or real, the Supreme Court could rightly be viewed as not wanting to take an election case until Donald Trump was clearly out of office. The results of such judicial delay are, as always, tragic.
So what is the good of changing the law if the law is not going to be enforced as written? What is the good in changing the law if the BoEs are not going to hear the evidence? What is the good in changing the law if the SoEs are going to impose “lifetime bans” on Republican volunteers who have challenged a process – as they are supposed to do? What is the good in changing the law if there is no standing, and the courts will not enforce the law as written?
If the Legislature is serious about changing the law, it should focus on broad standing and speedy remedies in election law issues. Cases should not drag on for years only to have decisions on the cusp of elections holding that the case is not “ripe” for adjudication – and then holding two weeks after the election that the case is barred by “laches” for undue delay. Courts should be charged with 24 hour turnaround in all cases – they can do it. The Legislature should provide for a permanent standing committee to defend the Legislature’s position to the court. The Legislature should provide for meaningful and serious penalties for SoEs and other government officials who run amok with power. And the Legislature should provide for a meaningful audit of all election processes – an audit by an independent certified public accounting firm. You know, like they kind they use for a beauty pageant or the Academy Awards.
Yes, the Georgia Legislature is in a hole. But they need to remember the first rule of holes – when you find yourself in one, stop digging.
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