The Cobb Elections Board should “Take Care” before deciding not to defend School Board Maps

I,______, do swear (or affirm) that I will as a member of the board of elections duly attend all ensuing primaries and elections during the continuance thereof, that I will to the best of my ability prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of such primaries and elections, and that I will at all times truly, impartially, and faithfully perform my duties in accordance with Georgia laws to the best of my judgment and ability. (O.C.G.A. § 21-2-70)

I do further solemnly swear (or affirm) that I am not the holder of any unaccounted for public money due this State, or any political subdivision or authority thereof; that I am not the holder of any office of trust under the Government of the United States, nor other state, or any foreign state which I am prohibited from holding by the laws of the State of Georgia; and that I am otherwise qualified to hold said office, according to the Constitution of the United States and laws of Georgia, and that I will support the Constitution of the United States and of this State.

So help me God.

(O.C.G.A. § 45-3-1)

In a ruling issued Tuesday, July 18 by Eleanor Ross, Federal District Judge for the Northern District of Georgia, the Cobb County School Board was dismissed as a Defendant in a case brought be several Plaintiffs including several Cobb County residents, the Southern Poverty Law Center, the GALEO Latino Community Development Fund, New Georgia Project Action Fund, League of Women Voters of Marietta-Cobb, and Georgia Coalition for the People’s Agenda, Inc. The Plaintiffs filed their suit, initially against the Cobb County Board of Elections, alleging the 2022 Cobb County School Board district map was the “product of illegal racial gerrymandering” and was drawn in order “to create a firewall against the rising Black and Latinx political power in Cobb County by packing Black and Latinx voters into three (3) of the seven (7) voting districts.”

Initially, the suit had only named as Defendants the director of Cobb Elections, Janine Eveler, in her official capacity, and the Cobb County Board of Elections. The Cobb County School Board intervened with the consent of the Plaintiffs and the Board of Elections, joining the case as a Defendant in January 2023, to “protect its interests.”

The Board of Elections sought to have the case dismissed arguing the Plaintiffs “failed to join indispensable parties as required by Federal Rule of Civil Procedure,” namely, the School Board (which joined the suit on its own), the Secretary of State, the State Board of Elections, and the Georgia General Assembly.

Rather than dismissing the case on the grounds that the Plaintiffs’ failed to join other parties, Judge Ross ruled in essence that the only party that matters is the Board of Elections as it is the Board of Elections which is charged with carrying out elections for School Board members in Cobb County based on the districts drawn by the Georgia General Assembly. As Judge Ross noted in her ruling, “[a] person aggrieved by the application of a legal rule does not sue the rule maker—Congress, the President, the United States, a state, a state’s legislature, the judge who announced the principle of common law.  He sues the person who acts to hurt him.”

In this case, “the person who acts to hurt the Plaintiffs” is the Board of Elections through its administration of the elections in the each of the school board districts as implemented by the Georgia General Assembly. As noted in Judge Ross’s ruling, there is nothing new or novel about this type of law suit being brought against a County Board of Elections. In fact, Judge Ross further states in her ruling, “Indeed ‘[i]n numerous Georgia cases like this one involving disputed ‘local legislation,’ plaintiffs have permissibly sued the relevant boards of elections and registrations and individuals representing those entities, and not the General Assembly.’”

So now the Board of Elections is once again left alone to carry on the defense of the law it is obligated as the administrator of Elections in Cobb County to uphold, right?

Well…maybe not so fast.

While the Georgia General Assembly, the Governor, and the Cobb County School Board are all Republican, the membership of the Cobb County Board of Elections is overwhelmingly (four to one) Democratic over Republican.

The Chair of the Board of Elections is attorney Tori Silas, who was nominated to the Board of Elections by the Cobb Legislative delegation where the Democratic members of the delegation enjoy a two-seat majority. Silas has told the Marietta Daily Journal that the Board of Elections is, “not going to be bullied [by the Cobb County School District] into taking on their fight.”

Silas has further reiterated to the MDJ regarding Cobb’s Elections Office, that, “We are a nonpartisan administrator of elections. We have no say so in how the maps are drawn. And to suggest that we are in a position to defend the maps, as to whether they are the result of gerrymandering, we just lack that ability.”

Silas does not explain what she means by, “lack that ability.”

“It is not a good situation, in my opinion … to defend the basis upon which they (the maps) were drawn. That, in my estimation, is illogical and impractical.”

– Tori Silas, Chair, Cobb County Board of Elections

Maybe she just doesn’t have the budget to defend the laws that the Board of Elections is charged with carrying out. Maybe she doesn’t know any attorneys who understand election law. Or maybe she just doesn’t understand the role her administrative agency is to faithfully perform its duties in accordance with Georgia law to the best of its judgment and ability…but she should.

She swore an oath to do exactly that.

Georgia law requires appointees to county Boards of Elections, including Tori Silas, to swear an oath upon taking office as election board members. The oath, which is copied in full above, requires Election Board members swear to, “at all times truly, impartially, and faithfully perform [their] duties in accordance with Georgia laws to the best of [their] judgment and ability.”

The oath further states that a County Elections Board member must, “support the Constitution of the United States and of this State.”

As an attorney, there is another oath that is taken to be admitted to the practice of law in Georgia, “I, ______, swear that I will truly and honestly, justly and uprightly conduct myself as a member of this learned profession and in accordance with the Georgia Rules of Professional Conduct, as an attorney and counselor, and that I will support and defend the Constitution of the United States and the Constitution of the State of Georgia. So help me God.”

We all learn (or should have learned) in elementary school that there are three branches of government: Legislative, Executive, and Judicial. The legislature makes the law, the executive enforces the law, and the judicial interprets the law. The Cobb County Board of Elections is an administrative agency of the executive branch of the government, in a nutshell, administering elections as required by the laws the State of Georgia as passed by the Georgia General Assembly. Silas has not proffered any justification for her agency’s possible tergiversation of the defense in the case, but instead hides behind the fallacy that defense of the law (the law which created the current school board districts) equates to an acceptance and endorsement of the law. She’s claiming that not defending the law is required so as the Elections Board can remain “neutral.”

As an attorney, she knows that’s just a load of malarkey.

While Silas is claiming “neutrality” as her reasoning for not wanting the Board of Elections to defend the case, in essence, handing the Plaintiffs a default judgment, attorney Ben Mathis, whose firm represented the School Board, has outright accused Silas of colluding with the Plaintiffs to have the duly passed School Board maps thrown out with the hope that new maps would give her political party the control of Cobb County’s schools, and the school district’s curriculum. In his response to the MDJ, Mathis focused on the Elections Board’s argument that the case be dismissed on technical grounds rather than an assertion that the Plaintiffs’ case had no merit.

Silas has also repeatedly asserted the maps are the School Board’s so the School Board should defend them. While the maps submitted by the School Board were eventually the maps passed by the General Assembly and signed into law by the Governor, the School Board only had the power to suggest a map, not to force the General Assembly to adopt it or the governor to sign it. Making the School Board defend the map it suggested is no less ridiculous and irrational than making any citizen who suggests any law that is passed the one primarily responsible for its defense. I suppose in Tori Silas’s world, anyone who suggests language or lobbies for a law should be called to account for its constitutionality should there by a court challenge.

As an attorney, Silas is also well aware that attorneys are called upon all the time to defend persons and positions they do not agree with or believe in as the duty of an attorney is first and foremost, a fidelity to the law. From the time that a young Massachusetts attorney (and future President of the United States) named John Adams took on the extraordinarily unpopular and potentially career-ending defense of the criminal charges brought against the soldiers who fired on civilians resulting in the Boston Massacre, future attorneys have drilled into them in law school the idea that we zealously advocate for our clients, even if we do not personally agree with their actions.

While Silas is not the attorney for the Board of Elections, the oath she swore to support and defend the Constitution of the State of Georgia, which gives the power to draw election districts to the General Assembly, should be enough. Her agency deserves its best defense possible for the maps it administers. The decision on whether the maps are unconstitutionally gerrymandered based on race is up to the Courts to decide, as the Courts would for any law that has its constitutionality questioned, not up to the administrators duty bound to ensure the law is faithfully executed.

Silas’s assertions that the Board of Elections may not defend the maps is symptomatic of a growing problem in American governance, in that those charged with defending the law are more and more often choosing not to do so. The decision not to defend laws, especially when it comes to redistricting, started as soon as Republicans took control of the Governor’s office and the General Assembly. In that case, litigation had been filed challenging Georgia’s State Senate maps that had been passed when the Democrats still maintained control of the General Assembly and were signed into law by Democratic Governor Roy Barnes. The new Republican Governor, Sonny Perdue, ordered Democratic Attorney General Thurbert Baker to dismiss the State’s appeal of the maps to the United States Supreme Court after the maps had been thrown out by the Eleventh District Court of Appeals. Baker refused and the Georgia Supreme Court had to weigh in, ultimately deciding that the AG had primary authority over litigation decisions. Ultimately, the maps were thrown out by the federal courts and Baker’s continuance of the defense only served to cost the Georgia taxpayers unneeded expense.

However, in 2014, the issue of this Duty to Defend took its most serious blow as U.S. Attorney General Eric Holder in a speech delivered to the National Association of Attorneys General said that state attorneys general may legitimately not defend laws that the attorney general believes is unconstitutional. Specifically, Holder was referring to state laws that defined marriage. The new Holder Doctrine, this blank check to not defend a law that an attorney general did not agree with, came three years after Holder announced that the Department of Justice would “enforce, but not defend” the federal Defense of Marriage Act (DOMA).

Four years later, U.S. Attorney General Jeff Sessions made the same decision not to defend the Affordable Care Act (ACA). However, while the media largely applauded Holder’s decision, Session’s was met with sharp criticism that by refusing to defend the law, Sessions (and President Trump) were standing against the rule of law. The Washington Post went as far as opining in its op-eds that the decision not to defend was destroying another democratic norm.

While the national media took its characteristic sides, lauding Democrats for the same actions it decries Republicans of doing, WaPo and others were right…that the refusal to defend laws by those charged with defending them does destroy a democratic norm in our republican system of government…and one that our Founders took care to include in the Constitution with the Take Care Clause.

Not long after the pronouncement of the Holder Doctrine, Indiana Attorney General Gregory Zoeller published an article in the Indiana Law Journal, “Duty to Defend and the Rule of Law.”

Zoeller explains that the Founders included a clause in Art. II, Sect. 3 of the Constitution that the President should, “take care that the laws be faithfully executed” due to recent developments in England where Parliament and the Judiciary had recently fought with King George III over suspension powers. Zoeller writes, “In drafting the “Take Care Clause,” the Founders looked to well-respected authorities like Montesquieu, who explained in his Spirit of the Laws that ‘when, in a popular government, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly undone.’ To ensure that did not happen, the Founders included the Take Care Clause in the Constitution, which required the President to faithfully execute laws passed by Congress.”

While Zoeller does make the distinction between a duty to enforce and a duty to defend, he adds, “an executive who fails to adhere to the duty to defend erodes the rule of law to a greater extent than one who fails to adhere to the duty to enforce, because failure to defend can result in binding legal precedent declaring the statute unconstitutional. Regardless, the prevailing opinion at the Founding was that the federal executive owed a duty to defend statutes even if the executive believed them to be unconstitutional. The Founders enshrined this duty in the Constitution through the Take Care Clause which, when read in its historical context, ‘is a succinct and all-inclusive command through which the Framers sought to prevent the Executive from resorting to the panoply of devices employed by English kings to evade the will of Parliament.’”

Since the pronouncement Holder Doctrine, Democrats in administrative roles, meaning roles that come under the administrative/enforcement arm of the government, have pushed the boundaries of the Doctrine further and further. In the passed session of the Georgia General Assembly, the legislature had to go so far as pass a law, mostly on partisan lines, that would allow a new panel to remove a duly elected District Attorneys who refuse to prosecute criminals.

In signing the law, Governor Kemp stated, “I am not going to stand idly by as rogue or incompetent prosecutors refuse to uphold the law.”

Silas’s statements regarding the Cobb County Board of Elections being seemingly unwilling to defend the law because she wasn’t part of the decision making process undercuts the rule of law in general, and is likely a violation of both of the oaths she made as an attorney and as an Elections Board member. Silas believes that “the elections board [is] being scapegoated and pressured to defend the actions of other parties” when, in fact, the elections board has no other authority to act except in accordance to the laws created by the actions of other parties.

If Silas wants to make policy, she should run for the legislature. If she wants to pass judgment on the constitutional standing of those policies, she should run for judge. Instead she has chosen to be a part of an administrative agency that’s sole duty is to administer the law. By her statements, she doesn’t seem willing or well fitted for the role she has chosen.

If Silas doesn’t understand that basic, fundamental structure of government, she should resign from the Board of Elections and let someone who understands at a basic, fifth grade level how government works, take her place. However, like Ben Mathis has speculated, the understanding is likely there, and the ultimate goal is default judgment against the maps. If that is so, Silas is cloaking a selfish, partisan agenda in the guise of “neutrality,” and, like the Washington Post editorialized regarding Sessions, Silas is too actively engaged in destroying another democratic norm.

The Board of Elections will meet in executive session on Monday, July 24 to decide how to precede. If Silas and the Board decides not to defend the case, Attorney General Chris Carr can then intervene taking the defense away from the Board of Elections. If that doesn’t happen, then Cobb County taxpayers will likely be on the hook for the cost of litigation by the Plaintiffs.

As Ben Mathis notes, “That’s part of [the Board of Elections] legal, ethical and fiduciary duty … They’re putting a lot of money at risk for the taxpayers.”

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