The rules will almost certainly not hamstring the certification of Georgia’s electoral votes. And even if certification is delayed, such delays do not open up a legal loophole for Trump to overturn the election.
Back in August, a new Republican majority of Georgia’s State Election Board sparked controversy when it approved rule changes related to election “certification,” or the process by which county elections officials aggregate election returns and attest to the accuracy of the results.
Last Friday, the board stoked the furor further by approving an unrelated rule that would require counties to hand-count ballots cast at polling places. Taken together, critics say that the rule changes could delay or outright obstruct certification of Georgia’s election results, particularly if county officials don’t like those results.
The changes have ignited breathless media coverage over the past several weeks, as commentators forecast how former President Donald Trump and his allies could delay certification in another attempt to reject an unfavorable presidential election outcome. Over at the Bulwark, A.B. Stoddard sums up Trump’s supposed legal strategy for Stop the Steal 2.0 as follows: “Refuse to certify anywhere—even a county that Trump won—and prevent certification in that state, which prevents certification of the presidential election.” According to the New York Times, delays could throw the election into a “legal gray area” that would give Trump’s allies in Congress political cover to reject electoral slates. Rachel Maddow envisions a scenario in which Trump upends the outcome of the election by ensuring that no electoral votes from Georgia are counted at all.
All of which would be quite alarming—if there was any real chance that things could play out that way. And the mischief being perpetrated by the board is certainly pernicious and may very well fuel postelection lawlessness by county officials who don’t like the results of the election. But the more alarmed commentators are overstating the case about what is happening in Georgia. They are overstating what the board has done, because they are overestimating what the board can do under the law. In reality, the board’s power to interfere with the certification process is pretty minimal.
In the aftermath of the 2020 election, it’s understandable that alarm bells are ringing over the happenings at the Georgia State Election Board. Nearly four years ago, Trump and his allies touted baseless claims of widespread fraud as a part of an effort to stop the congressional certification of electoral votes on Jan. 6. Trump’s efforts to prevent certification ultimately failed, and Congress reformed the Electoral Count Act—the federal law that governs the congressional certification process—to make it more difficult for partisan actors to manipulate the electoral count process.
But Congress isn’t the only entity with certification duties. Ahead of the 2024 election, advocacy groups and academics are increasingly concerned about potential efforts to impede certification at the county level, long before Congress meets on Jan. 6 to certify the votes of the Electoral College. A recent report by a good government organization, Citizens for Responsibility and Ethics in Washington (CREW), identified more than 30 examples of county officials who, since 2020, have voted to deny or delay certifying elections based on false claims of voter fraud or irregularities. According to the report, some of those officials include “avowed 2020 election deniers” and “individuals who acted as fake presidential electors for Donald Trump.”
The rule changes also come amid a shift in the composition of the Georgia State Election Board, an administrative body that can promulgate voting regulations for the state. Since May, the five-person entity has been controlled by a pro-Trump majority—a development that, at a rally in Atlanta last month, earned praise from Trump, who described the three members of the MAGA majority as “pit bulls, fighting for honesty, transparency, and victory.” Days later, Trump’s “pit bulls” voted to adopt the first in a series of rule changes.
Some of the rule changes have already teed up a preelection legal battle in Georgia’s courts. Late last month, the Georgia Democratic Party and the Democratic National Committee sued, contending that the rules could disenfranchise voters and cause “chaos” during the upcoming election. The Republican National Committee quickly moved to intervene in support of the rule changes. A Fulton County Superior Court judge has scheduled a hearing on the matter for the beginning of October. More litigation is expected.
Still, despite the furor, there has been little detailed analysis of the language and import of the rules. Do the rules actually permit county officials to delay or refuse certification? Can Trump really use delays as a legal loophole to overturn the election?
Let’s unpack the three rules at the center of the controversy: the “reasonable inquiry” rule, the “examination” rule, and the new “hand count” rule that showed up last week. A close read reveals that the legal and practical import of the rules will almost certainly not hamstring the certification of Georgia’s electoral votes. And even if certification is delayed for some reason, such delays do not open up a legal loophole for Trump to overturn the election.
The “Reasonable Inquiry” Rule
The first rule, dubbed the “reasonable inquiry” rule, ignited the media firestorm following its approval on Aug. 7. The rule defines what it means to “certify” an election. The definition reads as follows:
“Certify the results of a primary, election, or runoff,” or words to that effect, means to attest, after reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.
The definition is largely uncontroversial. It accurately describes “certification” as the process by which election officials attest to the accuracy and completeness of election results. Under Georgia law, the task of certifying local election results falls to the county “superintendent.” In most counties throughout the state, the “superintendent” refers to a local elections board composed of five appointed members. (The State Election Board does not play a role in tabulating or certifying votes.)
As the definition suggests, certification is a multi-step process. The county board certifies election results following a process known as “canvassing,” meaning the process of compiling, reviewing, and validating election “returns” from each polling precinct within the county. After the local board certifies, they send the results to Georgia’s secretary of state, Brad Raffensperger, who canvasses and aggregates the returns from all counties before certifying the statewide results. In a presidential election, the governor of the state, Brian Kemp, produces a “certificate of ascertainment” that confirms the official results of the popular vote and identifies the state’s appointed electors for the Electoral College. Under federal law, the deadline for each state to certify its electors is Dec. 11, 2024.
So far, so good.
The problem, according to critics of the rule, is that the new definition requires county boards to conduct a “reasonable inquiry” before certifying election results. The definition doesn’t explain what a “reasonable inquiry” might involve, or how long such an inquiry might last. Opponents of the rule say that the open-ended language would give board members broad license to investigate purported election fraud or irregularities of any kind prior to certification. According to critics, that could allow the board to delay or refuse to certify election results if it determines that a sufficient inquiry has not been conducted.
That line of thought apparently provoked a great many media outlets to make inaccurate proclamations about the legal effect of the rule. According to the Guardian, the rule would permit county election boards “to withhold the certification” of election results in the face of unspecified discrepancies. Rolling Stone reported that the change “allows pro-Trump election officials in Georgia’s 159 counties to arbitrarily refuse to certify election results.” On MSNBC, a group of legal analysts agreed that it “lets local elections officials halt vote-counting and delay or even outright refuse certification if they contend there are any irregularities, essentially making the certification of election results discretionary.”
But the rule actually does no such thing.
To be sure, commentary and reporting on the “reasonable inquiry” rule has been informed by what proponents of the rule might be trying to accomplish. The petitioner who submitted the proposed rule, Michael Heekin, is a Republican member of the elections board in Fulton County. Shortly before Heekin submitted his petition to the State Election Board, he voted against certifying the state’s primary results. Later, during his testimony before the State Election Board, Heekin stated that the rule “makes it clear that [certification] is not a ministerial act.”
But the “reasonable inquiry” rule adopted by the State Election Board does not—indeed, cannot—give local election officials the power to delay certification beyond the statutory deadline set out in Georgia state code.
To understand why, begin with a fundamental premise: The State Election Board, as an administrative body, simply does not have the authority to expand the powers of a county board. Georgia statutory law, not the board’s administrative rules, establish the powers and duties of local election officials. The State Election Board can only promulgate rules insofar as those rules are authorized by and consistent with the statute. If there’s a conflict between the two, the statute trumps the rules.
What, then, does Georgia statutory law have to say?
The first point here is that nothing in Georgia code gives a local board license to conduct a freewheeling investigation into alleged fraud or irregularities. For the most part, the role played by a local election board during the certification process is like that of a scorekeeper in a football game. The basic job is to ensure that all the points have been recorded and that the arithmetic adds up. It’s not up to the scorekeeper to determine, say, whether a touchdown was caught out of bounds. We leave those calls up to other officials, like a referee. Similarly, in the electoral system, qualitative claims of fraud or irregularities are investigated and adjudicated by actors other than a county election board. A presidential candidate may, for example, file an election contest in state or federal court.
That’s not to say that certification is merely a rubber stamp. The statute sets out limited circumstances in which a board may “investigate” tabulation discrepancies prior to certifying its results. A county board may investigate tabulation discrepancies between the number of unique voters and ballots cast. It can also order what’s known as a “discretionary recount” if the numbers are off. And if the board discovers any actual error or fraud, the statute directs it to report the facts to “the appropriate district attorney.” So, to the extent that a county board has any authority to conduct a “reasonable inquiry” during its certification process, that term must refer back to the limited investigative powers already provided for in the statute.
This brings me to a second point: Georgia law sets out a crystal clear deadline for county-level certification: Local election returns “shall be certified by the superintendent not later than 5:00 P.M. on the Monday following the date on which such election was held” (emphasis added). That provision places a mandatory duty on local election officials to certify election returns roughly six days after Election Day. No matter how one defines “reasonable inquiry,” nothing in the statute empowers the board to flout that deadline because it wants to investigate alleged irregularities or fraud. A board’s refusal to certify on that basis would amount to a violation of state law. Georgia’s secretary of state, Brad Raffensperger, recently said as much. In a post on Twitter, now X, Raffensperger wrote: “Georgia’s Election Integrity Act requires counties to certify the election results by November 12th and we fully anticipate that counties will follow the law.”
It’s no accident that local officials’ hands are tied when it comes to certification. Case law from the 19th century is replete with cautionary tales of the mischief that can ensue when local officials wield broad discretion over election certification. Equipped with the belief that they possessed the power to reject inconvenient electoral outcomes, rogue officials seized opportunities to manipulate the certification process for partisan ends. State courts and legislatures, in Georgia and elsewhere, tamped down on partisan election subversion by declaring that local election boards hold a “ministerial,” or mandatory, duty to certify election returns.
Consider, for example, the election scandal that erupted in Coffee County, Georgia. No, not that Coffee County election scandal, which involved alleged theft of voting system data for which several Trump supporters have been indicted in Fulton County, Georgia. I’m talking about the O.G. Coffee County election scandal, which wound up in Georgia’s highest court more than a century ago and could soon play a pivotal role in protecting the outcome of the upcoming presidential race.
The dispute began in the autumn of 1898, when denizens of rural Coffee County headed to polls to elect a representative for the state legislature. Elijah Tanner, a farmer and former Confederate soldier, ran on the Populist ticket. His Democratic opponent was the Reverend John Vickers, a Baptist preacher.
One day after the 1898 election, the local board responsible for certifying the election met to aggregate and finalize the results. The race was close. A consolidated total showed that Tanner, the Populist candidate, had narrowly defeated his Democratic opponent. But the Democratic members of the election board refused to certify Tanner’s win. Citing procedural defects, they argued that the votes from one of the districts—the McDonald precinct—were invalid and should be excluded from the final count. The partisan motivations were hardly subtle: Without the returns from the McDonald precinct, their party’s candidate would prevail. In this way, the board members’ refusal to certify was a transparent attempt to swing the election for the Democrats.
Outraged, the Populists sued. Eventually, following a lengthy court battle, Georgia’s highest appellate court weighed in. Rejecting the board members’ claims that the votes from the McDonald precinct should not be counted, the Georgia Supreme Court held that the board had no authority to determine the legal validity of election returns. The “essence” of the board’s duty, the court explained, was simply to consolidate, tally, and certify the returns. To the extent that the board had any discretion at all, it was limited to reporting the alleged defects to the relevant election tribunal. The local officials, the appellate court concluded, must be ordered to reconvene and certify Tanner’s win.
Consistent with Tanner, Georgia courts have repeatedly held that the duties of a county board during the certification process are purely “ministerial.” As the Georgia Supreme Court stated in the 1947 case Thompson v. Talmadge, canvassing boards are “given no discretionary power except to determine if the returns are in proper form and executed by the proper officials and to pronounce the mathematical result, unless additional [statutory] authority is expressed.”
It’s no response to say that the Tanner string of cases has been superseded by statute because Georgia has since modernized and overhauled its election code. As discussed above, nothing in Georgia’s revised election laws provide “additional authority” to withhold or delay certification past the statutory deadline. And the policy considerations that propelled the outcome in the Tanner line of cases apply even more forcefully in the current political environment.
All of which is why it is not actually difficult to predict how a court would interpret the “reasonable inquiry” rule. It would be unthinkable for a court to essentially conclude that the rule allows local election officials in Georgia to delay or nullify the votes of an entire county during a presidential election. “Reasonable inquiry” might allow just asking some questions before certifying, but it cannot change the nature or timing of the duty of certification itself.
Of course, the “reasonable inquiry” rule could cause a great deal of chaos if the judiciary does not step in to clarify the meaning of the rule. Local election officials could misinterpret the rule or invoke bad-faith interpretations of the rule to refuse or delay certification based on spurious claims of fraud. For reasons I explain below, certification delays are preponderantly unlikely to provide Trump with a legal avenue to overturn the election. But political grandstanding by local officials during the certification process could fuel disinformation about bogus claims of fraud and further entrench distrust in the electoral system—consequences that are themselves serious cause for concern.
Fortunately, at least one judge appears likely to weigh in on the matter ahead of November. In the suit brought by the Georgia Democratic Party in August, the litigants have requested an order declaring that both the “reasonable inquiry” rule and the “examination” rule do not grant county election boards discretion to delay or refuse to certify elections. Fulton County Superior Court Judge Robert McBurney—the same judge who presided over the Georgia special grand jury investigation into Trump and others for more than a year—has set a bench trial to commence on Oct. 1. I suspect that McBurney—a judge who is well versed in election law and well aware of the fast-approaching election—will act quickly to provide election officials with much-needed guidance.
The “Examination” Rule
Though the “reasonable inquiry” rule has provoked the most vehement backlash from critics, litigants have also challenged another rule related to the certification process. The rule, approved by a 3-2 vote on Aug. 19, was passed alongside a series of regulations that purport to set out procedures a county board must follow when “preparing for county certification.” Dubbed the “examination” rule, it reads as follows: “Board members shall be permitted to examine all election related documentation created during the conduct of elections prior to certification of results.”
Opponents say that the “examination” rule would expand the investigatory powers of local election officials. It does so by allowing an individual board member to make potentially burdensome demands to examine “all” election-related documentation, even if such documentation is not related to the certification process. If the requested documentation is not provided within the six-day period before the certification deadline, critics worry that would give local officials leeway to delay certification.
Concerns that election officials might try to invoke the “examination” rule to delay certification are not unfounded. Julie Adams, a Republican member of the Fulton County Board of Elections, refused to certify the presidential primary election, citing her outstanding requests for voluminous documents. Adams subsequently sued, seeking access to the requested materials and a declaratory judgment that certification is a discretionary rather than mandatory duty.
Beyond that, there are good reasons to be concerned that the broad language of the rule could provide legal-sounding cover for other types of mischief. In an effort to prove their claims of fraud in the wake of the 2020 election, Trump’s allies sought access to voting machines for so-called forensic audits.
As I’ve reported for Lawfare, the unauthorized breach of the voting systems in Coffee County, Georgia, appears to have been initiated under the guise of a purported “opens records request”—even though much of the data copied during the breach would not have been producible under Georgia’s Open Records Act. While the “examination” rule approved by the State Election Board would not be capable of providing individual board members with lawful access to sensitive voting system data, the expansive, unlimited language of the rule could be employed by bad-faith actors looking to get away with something.
Those concerns, however, relate to the question of how rogue officials might use the rule as pretext. For now, the more salient question is whether a good-faith interpretation of the rule could, as a matter of law, allow local officials to delay or refuse certification based on the need to review additional documentation.
The answer is no. The reason is the same as the reason why the “reasonable inquiry” rule cannot be used to delay certification: The State Election Board does not possess legal authority to promulgate regulations that would override the clear, mandatory certification deadline set out by statute. In fact, the “examination” rule was adopted within a broader suite of rules that acknowledge the mandatory deadline set out in the statute: “The consolidated returns shall then be certified by the superintendent not later than 5:00 P.M. on the Monday following the date on which such election was held[.]”
As with the “reasonable inquiry” rule, Judge McBurney is likely to provide some much-needed clarity on the meaning and scope of the “examination” rule prior to November. The outcome here is really not a close call.
The “Hand Count” Rule
This brings us to the most recent rule promulgated by the State Election Board, which last Friday passed a rule by a 3-2 vote that would require poll workers to count the number of paper ballots by hand following the conclusion of voting in each precinct.
To understand how the rule works, start with some basics about voting in Georgia. On Election Day, Georgians select their preferred candidates on a touchscreen voting machine. The machine then prints a paper ballot, which includes a list of the voter’s choices, as well as a machine-readable QR code. Before the voter exits the polling place, he or she places the paper ballot inside a scanner that reads the QR code to tally the votes.
The “hand count” rule—which is set to be added to Georgia’s administrative rules following a 20-day waiting period after its adoption—specifies that three poll workers shall hand count the total number of paper ballots removed from the scanner at the conclusion of voting. When all three poll workers agree on the total number of ballots counted, the rule instructs them to document the number and sign the date and time. The poll workers are then supposed to engage in a process known as “reconciliation,” which involves cross-checking the total number of ballots counted by hand with the numbers recorded on the electronic voting devices. If there’s an inconsistency in the numbers, the poll manager is tasked with determining the reason for the inconsistency and correcting it, if possible.
While the rule does not directly relate to certification, critics say that it could nonetheless impact the certification process by causing significant delays in the reporting of election results. The Washington Post, for example, initially reported that the hand count rule could upend the November election by “delaying reporting of results by weeks if not months,” though an updated version of the story dropped that claim.
And the Post dropped the point for good reason: It’s wrong. If the rule remains in place come November—itself an unlikely prospect, as we shall see—hand counting ballots will almost certainly not delay the reporting of election results by weeks or months.
The confusion on this point seems to stem from a misunderstanding of the distinction between counting ballots and counting votes. Generally, it’s true that hand counts are less accurate and less efficient than machine counts. Georgia’s rule change, however, does not require a hand tally of votes cast—a task that would require determining voter intent for dozens of races on each ballot. If it did, that would indeed cause significant delays. Instead, the rule requires a hand count of the sheets of paper that are stored in the scanner at the end of Election Day. Votes, by contrast, will still be counted by machine tally.
The rule could cause some reporting delays. In smaller precincts, these delays should be minimal—there being not that many ballots cast. For larger precincts, the delays may be more substantial. If larger precincts opt to hand count ballots on election night, then reporting of results could be delayed by several hours. A few hours could stretch into a day or two if a precinct puts off hand counting until the next day, as the rule allows.
It’s also possible that there could be no delays at all. Some states, such as Illinois, already hand count ballots on election night without experiencing significant delays. Moreover, it appears that nothing in Georgia’s hand count rule would prevent a precinct from reporting its machine-counted vote tallies before it finishes the hand count of its ballots. Practically speaking, however, larger precincts may prefer to conduct the hand count prior to reporting its results in the event there are discrepancies that need to be reconciled.
Of course, even a delay of a few hours can have disruptive effects and sow the seeds of doubt. In 2020, the belated reporting of Biden-favoring absentee ballots and ballot processing delays after a water main break in Fulton County fueled conspiracy theories. If the hand count rule remains in effect on Election Day, the delays are most likely to impact reporting of results in larger precincts in Atlanta, which tend to favor Harris. That will tend to produce a “red mirage” effect in which Harris could close an apparently big gap at the end—which itself will tend to fuel conspiracy theories.
There’s also the possibility that partisan local officials could use minor discrepancies between the machine tallies and the hand count as a pretext to conduct freewheeling investigations or to delay results. Some Republicans have explicitly suggested as much. “This reconciliation step, it gives you that little extra footing to have a complaint,” said Clay Parikh, a Republican election integrity activist, during a livestream on Twitter, now X, after Friday’s State Election Board meeting. “And, most importantly, you don’t certify a vote when there’s issues and the numbers don’t match,” Parikh said.
But there is a good chance that the hand count rule will not withstand legal challenge and actually won’t be in effect at all when the election happens. The board approved the rule over the advice of the Georgia attorney general’s office, which serves as the board’s legal adviser and is responsible for defending the board from suit in court. In a letter sent to board members ahead of Friday’s meeting, Senior Assistant Attorney General Elizabeth Young wrote that “these proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do.” Preelection litigation over the rule is expected.
In short, the rule almost certainly wouldn’t delay results by weeks or months, and efforts to delay or refuse certification based on minor errors or discrepancies discovered during the reconciliation process would be unlawful, even if the rule goes into effect—which it probably won’t.
But What If…
To put the matter bluntly, the recently approved rules do not and cannot change the legal obligations of local election officials to certify by the statutory deadline. But what happens if officials ignore the language in the statute and, pointing to the State Election Board rules for legal cover, delay or refuse to certify?
Reading the coverage, one gets the impression that commentators see the certification delay gambit as a perfected—and premeditated—version of the haphazard legal scheme cooked up by the likes of John Eastman and Ken Chesebro during the last attempt to overturn an election. This time around, however, it’s not “the Pence card” that Trump and his allies intend to play for the presidency. Instead, the idea is that the 2024 election heist will depend on a cadre of election deniers who are responsible for tabulating and certifying votes at the local level.
The doomsday scenario goes something like this: It’s election night in America, 2024. Trump cobbles together electoral victories in key swing states, including Arizona and Pennsylvania. The Harris campaign, for its part, wins Nevada, Wisconsin, and Michigan. As night stretches into morning, a bleary-eyed Steve Kornacki explains to viewers on MSNBC that it all comes down to Georgia. The eyes of the nation turn south, where unofficial results suggest that Harris has eked out a win in the Peach State by a razor-thin margin.
As the next few days unfold, however, Trump and his army of propagandists wield claims of widespread “fraud” or “irregularities” throughout the state, especially in large, urban counties near Atlanta. Meanwhile, local officials in rural, deep-red Trump country grow suspicious. Pointing to the need to conduct a “reasonable inquiry” into widespread claims of fraud, the officials refuse to certify the results in their counties, even though Trump has won those counties decisively.
All the while, the state of Georgia faces two looming deadlines: Under state law, the secretary of state must certify the statewide results by Nov. 22. Meanwhile, federal law mandates that the governor, Brian Kemp, must transmit a document certifying Georgia’s slate of presidential electors by Dec. 11, six days before the Electoral College meets to vote at the state capitol building. But delays related to the rural county’s refusal to certify stack up, causing Georgia to blow past the federal deadline.
What then? Could Trump exploit the delays to game the legal system and steal the presidency?
It is exceedingly, preponderantly, overwhelmingly unlikely.
For one thing, there are judicial mechanisms in place to ensure that crucial deadlines can be met on time. If a county board refuses to certify, the secretary of state—or another party with appropriate standing—can ask a court to force the county to certify its results. The most obvious basis for such a remedy would be that the county failed to comply with its statutory duty to certify by the deadline, but litigants could also seek relief on Equal Protection or Due Process grounds.
Timing shouldn’t be an issue. While it’s tempting to look at the success of Trump’s criminal defense strategy—delay, delay, delay—as a sign that America’s courts would be unable or unwilling to promptly intervene in a certification dispute concerning the former president, postelection litigation related to presidential contests routinely operates at lightning speed. Here, a litigant seeking to force a county to certify would likely ask the court for a writ of mandamus, which is designed to move especially quickly.
To get a sense of just how quickly courts can intervene in certification disputes, consider what happened in Otero County, New Mexico, in 2022, when a county board refused to certify the results of the primary election. The day after the commission refused to certify based on unspecified concerns about voting machines, the New Mexico secretary of state sought a writ of mandamus from the state’s supreme court. Within 24 hours, the court ordered the commission to certify. The whole ordeal was resolved by the end of the week. During the 2024 presidential election, by contrast, roughly one month separates the county certification deadline in Georgia and the federal deadline for states to certify its presidential electors. That buffer should provide ample time for the state to litigate any certification disputes before the federal deadline on Dec. 11.
What’s more, even if certification disputes cause Georgia to blow past the Dec. 11 deadline, federal law provides for a process to ensure that a single, lawful slate of electors will be counted by Congress on Jan. 6, 2025.
That process wasn’t available nearly four years ago, when Trump exploited legal ambiguities in the 137-year-old federal law that governs the certification of the Electoral College. Back then, Trump and his allies used that statute as pretext to justify the fake electors scheme, the plan to have state legislatures set aside the popular vote and appoint Trump electors, and the failed effort to persuade Vice President Mike Pence to refuse to count electoral votes on Jan. 6, 2021. But our nation’s creaky electoral machinery has been much repaired since it was nearly brought to a breaking point in 2020. In the wake of the failed coup, Congress enacted bipartisan legislation, called the Electoral Count Reform Act (ECRA), that sought to plug some of the gaps in the 1887 Electoral Count Act.
Among other innovations, the law established an expedited appeals procedure to ensure that a state’s failure to certify can be resolved before the Electoral College meets. So imagine a scenario in which Georgia misses the federal deadline on Dec. 11. What then? The ECRA allows for a speedy federal court challenge by either presidential candidate, with an appeal resolved by the Supreme Court one day before the Electoral College meets in mid-December. How a court rules at the end of this process will be considered “conclusive,” meaning that Congress, when it convenes to count the votes on Jan. 6, 2025, is obliged to accept that certification.
While it’s certainly possible that Trump’s allies in Congress could use certification delays as pretext to raise an objection to Georgia’s electoral slate, the ECRA mitigates those concerns, too. The law raises the threshold for objections to a state’s electoral votes to one-fifth of both chambers of Congress. Further, Congress may reject a state’s electors only if a majority of both the House and the Senate support the objection. Even if Republicans controlled both chambers, it’s improbable that an objection would garner sufficient support to reject Georgia’s electoral votes.
And what if, at the end of the appeals process, Georgia still refuses to certify? Would the election be thrown to the House of Representatives under the 12th Amendment?
There are political and legal realities that answer or mitigate those concerns, too.
First, the designated official responsible for certifying Georgia’s electors, Gov. Brian Kemp, has resisted pressure to undermine the results before. It’s extremely unlikely that Kemp, a popular Republican governor who is not beholden to Trump, would defy a court order compelling him to certify the state’s electors for Harris.
Second, even if Kemp were to refuse to certify, that failure should not trigger the provisions of the 12th Amendment, which provides for what’s known as a “contingent election” in the event that neither candidate obtains a majority of the electoral votes. Some commentators have suggested that Trump allies may hope to use delays in Georgia to provoke a contingent election, because the election would then be decided by each House delegation casting a single vote—a process that would favor Republicans. The problem is that, under the ECRA, Congress must remove a state’s electoral votes from what counts as a majority. So Georgia’s failure to certify should not result in a “contingent election” under the 12th Amendment, just a lessened total number of votes required to win an electoral vote majority.
I could spend the next hundred pages responding to hypothetical nightmare scenarios, but the bottom line is always the same. The likelihood that a Georgia county board’s refusal to certify an election could be used to overthrow a presidential election is basically nil—not zero, but, as a mathematician might say, approaching zero. As University of Notre Dame election law professor Derek Muller puts it: “There isn’t one weird trick to steal a presidential election.”
To be sure, there is a very real risk that local officials will refuse to certify the 2024 election in Georgia or elsewhere. According to an Atlanta-Journal Constitution survey, at least 19 election board members across nine Georgia counties have objected to certifying elections during the past four years. In most instances, officials who refused to certify elections in Georgia did not cite any specific instances of wrongdoing or outcome-determinative fraud. Instead, they have pointed to lack of confidence in voting machines, the need to review additional election-related documentation, or generalized concerns about ballot dropboxes. And some Trump allies have already claimed, without evidence, that the upcoming election will be illegitimate. “As things stand right now, there’s zero chance of a free and fair election,” Mike Howell, a project director at the Heritage Foundation, a conservative think tank, said at an event in July. “I’m formally accusing the Biden administration of creating the conditions that most reasonable policymakers and officials cannot in good conscience certify an election.”
Against this backdrop, the public perception that certification delays offer Trump a recipe for an instant coup has proved difficult to shake, perhaps in part because no one wants to repeat the mistake of miscalculating Trump’s ability to exploit bad-faith readings of the law to his benefit. Looking back, the events that unfolded in the wake of the 2020 election feel obvious, predestined even, as though there was never any universe in which Trump did not bring America to the brink of democratic collapse. But the truth is that many people underestimated the risk at the time. “There Will Be No Trump Coup,” Ross Douthat predicted in a New York Times column shortly before the election. “It’s almost a question for science fiction movies,” a former Secret Service official told Politico about the prospect that Trump would refuse to accept defeat in 2020. Now, as America lurches reluctantly toward whatever awaits in November, there is a sense that, this time around, we cannot afford to underestimate the threat that Trump will again seek to subvert the results of the election.
In evaluating the potential danger posed by recent happenings at the Georgia State Election Board, however, it is a mistake to frame the rule changes as a legal avenue for Trump to hijack the election. They are an avenue to vent spleen and make noise. But the law in Georgia is clear. They cannot lawfully be more than that.
– Anna Bower, Published courtesy of Lawfare.
