In 1964, Georgia lawmakers retooled the state’s election process  to create a “one person, one vote” system after the U.S. Supreme Court outlawed the “county unit system” that held sway over Peach State politics for nearly half a century.

Until then, politicians hoping  to win primaries in Georgia had to capture entire counties, not just individual votes. Under the county unit system, formally known as the Neill Primary Act, the votes of Georgians living in Atlanta and other major cities didn’t count as much as those of residents in rural areas, since there were eight urban counties, 30 town counties and 121 rural counties.

“It was a rough approximation of the Electoral College,” University of Georgia political science professor and authority on Georgia politics Charles Bullock III told State Affairs. 

In addition to creating a more equitable statewide electoral system, the revamped process led to the formation of a board intended to help the state’s top election chief ensure voting protocols were followed. The State Election Board, led by the Secretary of State, would develop rules, investigate election irregularities and make recommendations to state legislators. 

For most of its 60 years, the State Election Board has done just that.

But today what started as a safeguard for free and fair elections has, in the eyes of some, morphed into a political machine with broad overreach of powers. 

“We’ve had this board go from infrequent meetings where they would hear cases that were four or five years old to taking on this incredibly proactive rulemaking approach, which has led us to where we are,” said Michelle McClafferty, a political law attorney with the Atlanta firm Lawrence & Bundy.

The five-member volunteer board is under fire and has drawn national attention — and a lawsuit — for instituting a series of recent changes to Georgia election laws less than three months before the November elections.

At the heart of the controversy: new rules that require election officials to investigate vote tallies before certifying them. Under the changes, officials are urged to conduct a “reasonable inquiry” into the accuracy of the votes and look at election-related documentation created during elections.

The changes — namely the ability of local election boards to arbitrarily refuse to certify election results if they suspect irregularities or fraud — are seen as disruptive and dangerous, experts and critics say.

State Affairs  reached out to Mike Coan, executive director of the State Elections Board, but did not get a response by press time.

State Republican Party Chair Josh McKoon defended the new rules.

“The rules that the board has moved forward on are common sense measures to increase public confidence in our elections,” McKoon told State Affairs. 

He said the intent of the board’s decisions have been overshadowed by misinformation and confusion.

“The one [rule] that I think has gotten the most discussion is the one that has to do with elections board members being able to make a reasonable inquiry before they certify,” said McKoon, an attorney and former state senator who has pushed for changes in Georgia’s voting laws. “These boards of election have a purpose or they don’t, and the Board of Elections’ purpose, in my view, is to regulate the conduct of the election, to make sure there are good procedures in place, that the staff is conducting a fair election, and then to review the unofficial results and confirm that those should be made the official results.

“If  I were going to serve on a board of election, I would not sign my name to something that I thought was incorrect,” McKoon said. “And so they’ve [critics] tried to spin a narrative that this is about delaying certifying a result. No, it’s not. What it’s saying is [the election staff] need to make information available  on election day to the board of election between election day and the certification deadline.”

 Republican State Election Board member Janelle King defended the board’s action, telling Rose Scott, host of WABE’s Closer Look, that the new certification rule will create uniformity across Georgia counties and enable election officials to review all documents before certifying an election.

“The efforts to make elections more transparent and accountable in Georgia may be a little clumsy, disorganized and not well coordinated,” Marilyn Marks, executive director of Coalition for Good Governance, told State Affairs. “However, the robust debates on these matters are ultimately crucial and long overdue after years of State Election Board inertia.”

Is Georgia’s fight SCOTUS bound?

Atlanta attorney Allegra Lawrence-Hardy believes the controversy could end up before the U.S. Supreme Court. 

“The question is whether that happens sooner rather than later, and whether that happens now in terms of getting these issues resolved before the election, or whether there is a series of lawsuits after the election,” Lawrence-Hardy, who was involved in the 2000 presidential election recount dispute in Florida, said. “Obviously, a lot then depends on what happens with the election and who is bringing the lawsuits.”

A county’s refusal to certify election results could keep state officials from tallying results in that county in a timely manner. If that happens, it could delay the certification of election results in one of the nation’s most contentious and consequential presidential elections in recent history, experts say.

The board’s steady stream of new rules is exasperating election administrators who have to first understand, then institute, the changes before the Nov. 5 election. The Georgia Association of Voter Registration and Election Officials has asked the board to “hold off on any more rule changes this late in the election season,” president W. Travis Doss Jr. told State Affairs.

County election offices are preparing for the November election, which includes weeks of poll worker training that is just getting underway, Doss said. The State Election Board is expected to meet two more times and potentially approve additional new rules that would have to be incorporated at the county level before the election. Meanwhile, advanced voting starts Oct. 15.

“The rules that have already passed, we haven’t even been told how we’re supposed to implement them,” Doss said. “It’s just way too late in the game to start making all these changes.”

Doss said he has not heard from the board.

How did we get here?

The board’s increased influence didn’t materialize overnight. 

“This was part of a long-term campaign. This wasn’t by accident. You can start with grassroots conspiracists and the state [Republican] party,” one longtime Republican who asked not to be named told State Affairs, adding that, as it stands now, the Republican party “is not a party I recognize anymore.”

The board’s influence has been building since 2021 when state lawmakers overhauled Georgia election laws in an effort to restore voters’ faith in the election process after the 2020 election. 

Lawmakers ushered in a slew of controversial changes, including the latitude of the State Election Board to leapfrog over the Secretary of State’s office. The Georgia Election Integrity Act essentially stripped the Secretary of State of its authority over the State Election Board, which ironically was created to help the Secretary of State. 

But under the 2021 revised structure, current Secretary of State Brad Raffensperger was removed as chairman of the board and lost his voting power. 

“The Secretary was removed from all responsibilities with the State Election Board earlier this year by the Georgia Legislature,” Secretary of State spokesman Mike Hassinger told State Affairs in an email. “And this office has no insight nor input into its decision.” 

As for Raffensperger, he has publicly said the board is a “mess.” 

In recent years, the board has had its share of issues involving the reliability of the state’s voting machines. It took on a conservative group’s claims of ballot fraud during the 2020 election and swiftly dismissed it. 

 In June 2023, the board formally cleared two Fulton County poll workers of any wrongdoing in the 2020 election. The case drew national attention. 

Over the last couple of years, the makeup of the board has changed with the departure of board members frustrated with the unrelenting demands of activists who continue to push the premise that the 2020 election was rigged.

The departures ushered in the current slate of three Republican members to the five-member board — Janelle King, Dr. Janice Johnston and Rick Jeffares.

The trio drew praise earlier this month from Trump, who called them “pitbulls fighting for honesty, transparency and victory.”

“I was trying to keep my head down …  and just get the job done,” Sara Tindall Ghazal, an Atlanta attorney appointed to the board by the state Democratic Party in 2021, told State Affairs. “But I’m deeply alarmed at what I’ve seen. I’m concerned that many folks on the board don’t seem to understand election law.”

Two and half years ago, the board consisted of attorneys of varying political views who were well versed in election law which helped them dispense with complaints of  voter fraud and election malfeasance impartially and evenhandedly. 

That is not the case today. The recent changes have onlookers talking about the potential of additional lawsuits.

And the legal fight may just be getting started. 

“We’re really talking about how votes are counted, whether votes actually are part of the process,” said Lawrence-Hardy, a partner with Lawrence & Bundy. “And so this really goes to the heart of the election process … and how things will develop. But it seems almost impossible that we will not have to, at some point, have this weighed in on by both our federal courts and, ultimately, the United States Supreme Court.”  

Have questions, comments or tips? Contact Tammy Joyner on X @lvjoyner or at [email protected].

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