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Late last month, 27 Republican members of the Georgia state Senate sent an ominous letter to the state elections board, touting a misleading claim about the 2020 election popularized by Fox News host Tucker Carlson. A few days later, several Republican members of the state House sent a similar letter seeking a “performance review” of election officials in the Democratic stronghold of Atlanta.
In a post-Trump GOP, it might seem unremarkable that elected officials are spouting off about some lie or half-truth broadcast by conservative media. But these letters set in motion a chain of events that could end in mass disenfranchisement of voters in the Democratic stronghold of Atlanta for the 2022 statewide and midterm elections.
In March, Georgia Republicans passed SB 202, a sweeping new election law that erects obstacles between Georgia voters and their right to cast a ballot. While some are relatively minor or even popular, the most ominous provisions of this new law allow the state election board, which is dominated by Republicans, to seize control of county election boards. Those boards can disqualify voters, move polling precincts, and potentially even refuse to certify an election count.
The letters from Republican lawmakers are the first step in the legal process Republicans may use to take over elections in Fulton County, the most populous county in the state, which encompasses most of Atlanta. In 2020, nearly 73 percent of Fulton County voters cast a ballot for President Joe Biden. Biden won the county by nearly a quarter-million votes, enough to push him ahead of former President Donald Trump in a state decided by 11,779 votes overall.
Both letters ask the state elections board to begin a “performance review” of the local officials who oversee elections in Fulton County. The senators claim that such a review is justified because “nearly 200 ballots were scanned twice last fall” during the initial vote count in Fulton — a claim that was previously featured on Tucker Carlson’s show.
The reality is much more nuanced, and it suggests that the state’s existing systems worked exactly as they were supposed to work. Although nearly 200 ballots were double-counted during the first count of Fulton County’s ballots, Georgia conducted both a machine recount and a hand recount of all its ballots, given how close the statewide result was. And there’s no evidence that any ballots were counted twice in the final tallies that showed Biden ahead of Trump.
It appears likely that a poll worker in Fulton County made a minor clerical error, and this error was corrected in the subsequent recounts.
Nevertheless, it is probably inevitable that the GOP-controlled state elections board will open an investigation into Fulton County. And once this investigation concludes, the state board can use it as a pretext to remove Fulton County’s local elections board and replace it with a temporary superintendent who can undermine voting within that county.
Georgia law provides, for example, that any voter in Fulton County “may challenge the right of any other elector of the county or municipality, whose name appears on the list of electors, to vote in an election.” If Republicans appoint a temporary superintendent in Fulton, that GOP official will adjudicate these challenges. That means that Republicans could potentially flood the zone with frivolous voting challenges — which could be sustained by a partisan superintendent.
The outcome of Georgia’s 2022 statewide elections, in other words, may not be determined by the state’s voters. It could hinge on a sham investigation into Fulton County’s election administration — and by a partisan board’s subsequent decision to place a partisan official in charge of counting most of the votes in Atlanta.
How Georgia’s new law allows Republicans to take over local election boards
If you were unaware of Trump’s failed efforts to overturn the 2020 election, or if you did not know that SB 202 is part of a wave of election bills introduced by Trump loyalists, then the process for state takeovers of local election boards might seem reasonable.
The relevant provisions of SB 202 appear to be outwardly neutral — they aren’t written to explicitly benefit Republicans over Democrats. Among other things, SB 202 removes Georgia’s elected secretary of state as the chair of the five-person State Elections Board, and replaces them with “a chairperson elected by the General Assembly.” It also allows certain state lawmakers to demand that the board conduct “an independent performance review” of a county’s top election officials.
After conducting such a review, the state board may appoint a temporary superintendent to oversee a county’s election administration if three members of the board determine that the county’s top election officials recently “committed at least three violations” the state’s election laws and regulations, or if these board members determine that the local officials “demonstrated nonfeasance, malfeasance, or gross negligence in the administration of the elections.”
Yet, while these provisions might be reasonable and nonpartisan if they were administered by reasonable and nonpartisan officials, they entrench Republican power in two ways. Firstly, SB 202 increases the Republican Party’s grip on the State Elections Board by bringing the total number of board members appointed by the legislature to three.
Before SB 202, the state board was chaired by Secretary of State Brad Raffensperger, a Republican who refused Trump’s suggestion that Raffensperger “find 11,780 votes” and award them to Trump — thus giving the defeated president an illegitimate victory over Biden. SB 202 allows the Republican-controlled state legislature to appoint a more pliable chair (the seat is currently vacant).
GOP lawmakers already appointed two of the other board members: One of these seats is appointed by the state senate, and another by the state House, both of which have Republican majorities. (Theoretically, control of one or both houses could flip to the Democratic Party in the future, giving them more power over the board of elections, but that’s no reassurance for anyone worried about the administration of the 2022 elections — and Republicans can use their current majorities to pass gerrymanders that could lock them into power.)
And Republicans actually have even more control of the board: The two remaining seats are filled by the state Democratic and Republican parties, meaning Republicans currently control four of the five slots.
This brings us to the second way SB 202 entrenches Republican control of the 2022 elections: A supermajority on the board enables the GOP to take over local election administration, even if a Republican member of the state elections board dissents. That’s because only three of the board’s five members need to support a state takeover of a local election board for that takeover to happen.
So what happens next?
Under SB 202, Republicans still need to jump through several procedural hoops before they can claim control of Fulton County’s election administration. The process from here on out looks like this:
- After lawmakers formally request a review, the state board “shall appoint an independent performance review board within 30 days.” This review board will have three members — one state election official and two local officials from outside of Fulton County — and will produce a written report.
- After the performance review is complete, the state elections board may pursue “extraordinary relief,” which may include removing the county election board. Before voting on whether to remove Fulton County’s local board, the state board must conduct at least one “preliminary hearing,” within 30 to 90 days from when it formally decides to consider removing the local board.
- After this preliminary hearing has happened, the state board may vote to suspend the local board — it takes three state board members to do so. If that happens, the state board may also appoint a temporary superintendent who will take over election administration in Fulton.
- In theory, the ousted county officials may petition the same state board that just removed them from office for reinstatement. The more likely path to Fulton reasserting control of its elections, though, is that nine months later the county regains the power to remove the temporary superintendent and appoint its own election administrators.
Because Fulton is likely to remove a GOP-appointed superintendent as soon as it can, Republicans need to time this entire process carefully if their intent is to skew the 2022 election in their favor. To gain maximum advantage, Republicans need to ensure that the temporary superintendent’s nine months in office overlaps with the 2022 election and the post-election period when that election is being certified.
Once Republicans take over the Fulton County election board, they gain broad new powers to disenfranchise voters
In those nine months, the temporary superintendent gains all the powers that would normally be held by local election administrators — at least three of which could potentially be wielded to disenfranchise voters.
First, county election boards normally have the power to adjudicate claims that a particular voter is not lawfully allowed to vote, so this power would be transferred to a GOP-appointed superintendent. If a county board (or a temporary superintendent) determines that a particular voter is “not qualified to remain on the list of electors,” the voter will be disenfranchised and removed from the list of registered voters.
Moreover, because state law permits any Fulton County voter to challenge the right of any other Fulton County voter to cast a ballot, the temporary superintendent could potentially be inundated with requests to disenfranchise individual voters.
State law does allow a voter disenfranchised in this way to appeal to a state court, but that’s an onerous process that many voters will struggle to navigate. Imagine, for example, that a Republican superintendent declares thousands of Fulton County voters ineligible. These voters would need to find lawyers, file an appeal, and hope that the state’s GOP-dominated judiciary doesn’t uphold the superintendent’s actions.
Meanwhile, voters in other, less Democratic counties would be free to cast their ballots normally.
A temporary superintendent also has the power to relocate polling sites, and they have some authority to divide, reshape, or combine existing polling precincts. In the worst-case scenario, a Republican superintendent might attempt to shut down most of the polling places in Atlanta, forcing voters to wait in long lines to cast a ballot. At the very least, such a superintendent might move around many voters’ polling places, confusing voters who are accustomed to voting in a particular location.
Finally, county election boards (or a superintendent appointed to replace that board) must certify the results of an election once all the votes in that county are tallied. It’s not at all clear what happens if local election administrators refuse to certify an election because they don’t like the result. But the statewide bodies that could plausibly resolve such a dispute — including the State Elections Board, the state legislature, and the state supreme court — are currently controlled by Republicans.
So, while it remains to be seen what the state GOP will do with its authority if it does take over elections in Fulton County, the Republican Party could potentially gain the power to rig the 2022 election.
