Georgia Supreme Court overturns some election rules, curbing State Election Board's power

Winnipeg Free Press

2 days ago

ATLANTA (AP) — Georgia's highest court on Tuesday overturned four rules passed by the State Election Board just before last year's general election, ruling the board overstepped its authority and intruded on lawmaking power reserved for legislators under the state constitution.
The state Supreme Court's unanimous decision limits the future rulemaking ability of the State Election Board and other executive branch agencies of Georgia's government.
The board passed a slate of new rules in August and September that mostly had to do with processes after ballots are cast, spawning a flurry of lawsuits.
President Donald Trump narrowly lost the state in 2020 and alleged without evidence that election fraud had cost him victory. Three Trump-endorsed Republicans hold the majority on the five-person State Election Board.
The new rules brought an outcry that the board's majority was trying to improperly use its power to help Trump. The board members claimed the changes were needed to improve the accuracy of results.
Fulton County Superior Court Judge Thomas Cox ruled in October that seven of the rules were 'illegal, unconstitutional and void,' but the board appealed.
Trump beat Democratic former Vice President Kamala Harris in November to win Georgia.
In its decision, the state Supreme Court invalidated the requirements that ballots be hand-counted after the close of polls, that someone delivering an absentee ballot in person provide a signature and photo ID, that county election board members be allowed to conduct a 'reasonable inquiry' before certifying results and that county election board members be granted broad access to election-related documents.
The court let stand a rule requiring video surveillance and recording of ballot drop boxes after polls close during early voting. It told a lower court to decide whether Chatham County Board of Elections member James Hall has the right to challenge two other rules, which expand designated areas where partisan poll watchers can stand at tabulation centers and require daily public updates of the number of votes cast during early voting.
As part of its decision, the court overturned a 1990 decision that widened the rulemaking power of state agencies. Chief Justice Nels Peterson wrote that the decision was a mistake because it doesn't 'provide clear, objective guidelines that cabin an executive branch agency's exercise of discretion.'
The reversal parallels the U.S. Supreme Court's overturning last year of a doctrine that said courts had to defer to how administrative agencies interpreted laws in writing rules.
What was called the Chevron doctrine gave federal agencies the authority to make rules for implementing laws passed by Congress that were unclear.
Scot Turner, a former state representative and one of the people who challenged the rules, said the court's decision will rein in 'unelected bureaucrats.'
'This ruling makes clear: the legislative power belongs to the General Assembly, not executive branch agencies operating without proper constraints,' Turner said in a statement.
The court ruled that the State Election Board had asserted 'the type of unfettered discretion that we have now reiterated is constitutionally intolerable.'
That analysis applied to the rule allowing county board members to conduct 'reasonable inquiry' into whether results are valid, which the court said could delay finalizing votes and contradicted state law that says counties 'shall' certify results. The court also ruled that election board members could only examine documents when there were discrepancies in the number of voters or ballots.
The court ruled that the rule requiring poll officials to hand-count the total number of ballots — not individual votes — contradicted state law. That's because it allowed the hand-count to take place after Election Day, while state law requires ballots to be tabulated 'as soon as' polls close.
A rule requiring people to provide a signature and photo ID when delivering an absentee ballot was invalid, the court ruled, because it 'invents new requirements' not found in law.