AG Issues Official Opinion Reminding SEB of its Actual Job

Today, Georgia Attorney General Chris Carr issued an Official Opinion (Official Opinion 2024-1) that, in a nutshell, reminds the State Elections Board (SEB) that it needs to actually read the Georgia Constitution and Georgia law in regard to its own powers and the powers of the Attorney General. Carr’s Official Opinion came as a response to votes by the SEB during its August 7, 2024, meeting to direct the AG’s Office to reopen the already closed investigation into the double scanning of approximately 3,000 hand-marked paper ballots in Fulton County during the vote count for the 2020 General Election. While, according to the AG’s Office, the SEB has not officially notified them of their directive, the AG took the proactive step of reminding the SEB that, under Georgia law, it is their duty to investigate claims of voter fraud, and not the AG’s Office.

Back on August 7, the SEB decided to revisit the already concluded investigation into Fulton County Election Division’s double scanning of ballots. The investigation concluded that the Fulton County Elections Board did not follow state law or its practices and procedures, and the result was – what any observer of Georgia elections has known for decades – that Fulton County was sloppy and incompetent…but the investigation fell short of finding any intentional criminal violations. In fact, the double scans improved both Trump’s and Biden’s vote count, which would be expected of any random rescan of ballots. What’s more, 3,000 votes, even if they were miraculously all in Biden’s favor, would still mean Trump would have almost a 9,000 vote deficit.

Back on May 24, the SEB reprimanded Fulton County and ordered the county to hire an independent monitor to monitor the County’s election operations. As reported in the Atlanta Journal-Constitution, SEB member Edward Lindsey, an attorney who once served as the Majority Whip of Georgia House of Representatives, noted at the meeting, “There is clear evidence that in 2020 there were numerous violations of regulations and statutes, and the county has acknowledged that. My purpose here is not to let it ride but to move this matter forward so we can have some assurances going into the 2024 election.”

Lindsey also warned Fulton County that if it had not hired a monitor for this year’s November election, he would move to reopen the investigation in July.

The Fulton County Elections Board approved the hiring of five independent election monitors in a July 11 meeting, including Lynn Bailey, retired Richmond County election director; Ryan Germany, former general counsel for the secretary of state’s office; Carter Jones, a former independent election monitor in the 2020 general election; Matt Mashburn, a former member and acting chairman of the State Election Board; and Monica Childers, a U.S. Election Assistance Commission member.

However, also by July, after an aggressive campaign against him by so-called “election integrity” activists and the Georgia Republican Party (although GAGOP Chairman Josh McKoon tried to spin the Party’s conveniently timed Resolution was somehow not directed towards Lindsey), Edward Lindsey had been replaced on the SEB.

That brings us back to the August 7 meeting, and the SEB’s vote to reject the proposal from Fulton County, reopen the already closed and resolved investigation, and demand the AG open a new investigation. SEB Chair John Fervier, in expressing his disagreement with the majority, stated at the meeting, “My position is that case has been adjudicated, that Fulton County has met its obligation,” commented Fervier. “This board has failed to meet its portion of that obligation.”

Fervier cited concerns that by rejecting Fulton County’s reasonable proposal, that the SEB was opening itself to possible litigation, but Dr. Janice Johnston, the appointee of the Georgia Republican Party, cited the advice of outside counsel, “a lawyer from the Georgia Republican Party,” in the decision to push forward and vote to demand the AG pursue a new investigation.

Not so fast, says the AG’s Office, “The authority to investigate potential violations of the election laws rests with the SEB and not with the Attorney General. This Office is not required to conduct an investigation on its own or with outside personnel at the direction of a client agency.”

The AG points to the express duties of the SEB under O.C.G.A. § 21-2-31(5):

“To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law”

The law would seem to indicate, and the AG points out, that any investigation is the duty of the SEB, unless it authorizes the Secretary of State to conduct an investigation, and the only duty is to report the findings of such investigations when the law has been violated to “either the Attorney General or the appropriate district attorney who shall be responsible for further investigation and [criminal] prosecution.”

The initial investigation into Fulton County did not find any violations to pursue criminal changes and if every government screw-up were criminal, there would not be prisons enough to hold all of the violators.

An “Official Opinion” by a state’s Attorney General is an official interpretation of state law pertaining to a state agency’s or a state official’s legal duty.

Here, the opinion reminded the SEB, a state government agency, that it and the AG’s Office only has those duties expressly granted in the law or powers necessarily implied by those expressed powers, “The SEB’s powers are defined by statute. In Georgia, agencies of the State like the SEB have only such powers as they are expressly granted in the law and those that are necessarily implied from the powers that are expressly granted. Bentley v. Board of Medical Examiners, 152 Ga. 836, 838 (1922). As noted above, the power to investigate rests with the State Election Board itself or the State Election board can authorize the Secretary of State to investigate.”

The attempt by the majority on the SEB to run full steam ahead and Georgia law, like the torpedoes, be dammed, harkens back to the aftermath of the 2020 elections when angry activists, and even President Donald Trump himself, were making demands of Secretary of State Brad Raffensperger, Attorney General Chris Carr, and Governor Brian Kemp to engage in actions that would have violated their oaths of office as neither the Georgia Constitution nor Georgia law would have given the power or authority for any of these elected officials to meet the demands of Trump and his followers. The SEB’s vote, by again ignoring state law, therefore begs the question whether the majority is working for Donald Trump and the applause of the MAGA activists who pack their meetings or for overall benefit of Georgia voters who only want to be confident that elections are handled fairly and securely?

What’s worse, it seems that the majority on the SEB is relying on the advice of outside counsel, whose interest may or may not be aligned with the mission and duties of the SEB under state law. In fact, when it comes to potential lawsuits where the SEB may have to pay attorney’s fees if they lose in court, the SEB seems to be taking an arrogantly flippant attitude with Georgia taxpayer funds, “The amount of times I’ve been told not to do something because we could be sued, if this were a drinking game, we’d all be drunk,” said the newest State Election Board member, Janelle King. “We need to not be scared to do things because it’s the right thing to do.”

However, if “right thing to do” is to violate the law and get sued, then is it truly the right thing to do? The problem is, the cost of any potential litigation will be on the taxpayers of Georgia and not the three SEB members or the GAGOP lawyer from whom they seem to be taking their direction. After the 2020 election, there were multiple calls for Governor Kemp to call the General Assembly back in special session to change Georgia law as to how Presidential Electors were chosen. Never mind that courts would invalidate the law, many MAGA activists demanded it as a showing that certain state officials were on Trump’s side, even if a special session and litigation would have cost the taxpayers millions. Shakespeare had a line that would have seemed tailor made for such an attempt, “Told by an idiot, full of sound and fury. Signifying nothing”

In an effort not to be stymied by the AG’s office, Johnston’s motion also called for the SEB to retain outside counsel should the AG be unable or unwilling to investigate.

Not so fast, again.

“Because the Constitution and statutes provide for a single legal representative for the Executive Branch, 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. O.C.G.A. § 45-15-4. O.C.G.A. § 45-15-34 expressly prohibits the employment of legal counsel otherwise. See 1995 Op. Att’y Gen. 95-1 (Recognizing the lack of attorney-client privilege between persons with legal training employed by agencies and their employing agencies).”

While the SEB may be flippant about any possible lawsuits resulting from their overreaching and possible violations of State law, the unnecessary attention the legal chaos that they are creating may invite another potential lawsuit, one that could unmake how the SEB members are chosen. The case that the SEB needs to be most concerned being sued over is Delay et al. v. Sutton, a 2018 Georgia Supreme Court case in which the Court struck down how DeKalb County appointed four of its seven members to its county Ethics Board.

Why would a DeKalb County Ethics Board case even matter to the SEB? It all has to do with how members of a government board are chosen.

In 2018, after voters approved a referendum allowing the DeKalb County Bar Association, the DeKalb County Chamber of Commerce, Leadership DeKalb, and the six major colleges and universities collectively (Agnes Scott College, Columbia Theological Seminary, Emory University, Georgia State University, Mercer University, and Oglethorpe University) to appoint one member each, the Court invalidated the organizational scheme as these groups are “not in the public domain and is not accountable to the people as our constitution requires.”

Just like the DeKalb Ethics Board, many county Elections Boards and the SEB allow for appointments by both the Democratic Party and Republican Party. While many counties in the wake of Delay have revamped their county elections board, removing the party appointees as the political parties are also not in the public domain and not accountable to the people, the Georgia General Assembly has not taken up similar reform for the SEB. One easy way to reform the SEB would be to allow the majority and minority caucuses to each appoint a member, likely insuring two Democrats and two Republicans regardless of which party is in the majority, and either bring back the Secretary of State as the Chair or continue to make it an appointment by the Governor.

Whether the General Assembly chooses the above idea or comes up with a plan of its own to reform the structure of the SEB, one thing is critically important…that the SEB members follow the law before any party or politician.