Georgia’s attorney general has tossed a wet blanket over the MAGA-leaning state election board’s attempt to rekindle Donald Trump’s grievances about 2020 voting irregularities.
It’s the latest skirmish in a quiet battle being fought in states nationwide as Trump-loyal elections officials try to set the stage for a contested presidential election in November.
On Monday, Georgia Attorney General Christopher M. Carr signed an opinion formally rejecting the state board’s calls for him to “immediately investigate with outside investigators” allegations that the dense metropolitan area of Fulton County possibly double-counted an estimated 6,694 votes incorrectly during the previous presidential election.
The response shows that the AG won’t play ball with those trying to relitigate past results — and hints at its reluctance to support any effort to tie up the vote count in November as well.
Still, the Republican-controlled state board has already passed several measures that could embolden election deniers. On Monday, the body passed a rule that would require officials to investigate any inconsistencies between the number of ballots cast and the number of voters in a precinct, no matter how small. Those discrepancies happen often and usually don’t impact election results; requiring a review of every instance would only slow down the certification process.
The author of the rule told ProPublica that they proposed it “at the behest” of a leader at the Election Integrity Network, a right-wing organization led by Cleta Mitchell, who helped Trump’s efforts to overturn the 2020 election results.
This change comes on the heels of a separate rule pushed forward on Aug. 7, when the three-member majority threw a wrench into how the state certifies elections by allowing county election officials to refuse to sign off on voting results. That was when the state board also referred an old complaint about Fulton County’s 2020 vote totals to the AG’s office, requesting “a report within 30 days” and further stating that “if they are unwilling/unable, to seek outside legal counsel to conduct the investigation.”
Two weeks later, the AG’s office is shutting that down.
Carr’s Aug. 19 legal opinion reminds the state board that his office “is not required to conduct an investigation on its own or with outside personnel at the direction of a client agency,” kicking the can back to the board itself.
But Carr went further, noting that the state board can’t just hire its own lawyers to supplant the AG’s office.
“The attorney general alone is statutorily vested with the power to select and engage private counsel to provide legal services for entities of the executive branch of state government,” he wrote, quoting the Official Code of Georgia.
The opinion could serve as an example to other states where election boards are poised to go rogue later this year. The independent journalist Justin Glawe has used databases and social media research to construct a list of nearly 70 election-denying local election officials in six swing states, while the left-leaning nonprofit Public Wise has pegged the total at closer to 334.
The concern is that local election boards will take a narrowly defined ministerial job and turn it into a discretionary function. Voting rights advocates, like those at the nonprofit watchdog Citizens for Responsibility and Ethics in Washington, have pointed out that morphing the responsibility of local election boards would destabilize the process illegally.
Worried lawyers are now pointing to century-old case law to hold back these conspiracy-fueled attempts to reshape how voting results get made official. As the Indiana Supreme Court wrote in a 1910 case called Kunkle v. Coleman, “The duties of canvassers are purely ministerial. They perform the mathematical act of tabulating the votes of the different precincts as the returns come to them.” Georgia’s highest court quoted that in its 1923 case Davis v. Warde.
The perceived danger led Michigan in 2022 to adopt an amendment to its state constitution that makes clear local election boards should stay in their lane. The amendment stressed that “it shall be the ministerial, clerical, nondiscretionary duty of a board of canvassers … to certify election results based solely on … statements of returns from the precincts.”
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Jose Pagliery is a reporter at NOTUS.