We Won But We Are Not Finished – Thoughts on Suing the State Election Board

Update for this post: It has come to my attention that Georgia Republican Party Chairman, Josh McKoon, has made a statement that it is, “dishonest,” to refer to the members of the state election board as, “unelected bureaucrats.” So I have updated this post to reflect his concerns. I will leave it to the reader to decide whether it makes it better or somehow justifies empowering unelected bureaucrats appointees who have zero accountability to the voters of this state to make, alter, or expand election law. I find his characterization that appointees are directly tied to the elected officials who appoint them wholly dishonest when two of those members are not appointed by any elected official, and no voter gets a vote on who is the Speaker of the House unless they are one of the 180 members of that chamber. Regarding his other concerns, I encourage you to become familiar with what happened to Brendan Eich for exercising his First Amendment rights. I am the decision maker, with approval of a board of directors, on how my employer, Eternal Vigilance Action, (EVA) expends funds, and EVA is paying for our portion of the lawsuit. It is not a mystery. Chairman McKoon also knows that I was in the legislature when the SEB originally created drop boxes, and that is already directly addressed in this post. EVA would not be created until after I left office. I also find it noteworthy that he refers to the growing number of us from the right who have opposed him as “Republicans,” in quotes, when he has known us for at least a decade and while he currently continues to harbor someone on the State Executive Committee who has a podcast hosted on a white nationalist’s media network. Yeah, sure, we are the “Republicans.” Also noteworthy is that EVA did not sue the GOP, we sued the State of Georgia. The GOP chose to get involved on behalf of unelected bureaucrats appointees who a judge found were ignoring the law, who the Governor of Georgia inquired on how members might be removed, and the Attorney General warned that they were violating the law. I grabbed a screen shot of his Facebook post and added it to the end for reference. Let me know when an SEB member’s name shows up on a ballot and we, the voters, get to decide who is on that currently unelected board of bureaucrats appointees. Until then, we continue our fight to reign in the unelected administrative state, regardless of who wants to see unelected people make these decisions, including Chairman McKoon.

Earlier this year conservatives widely heralded and celebrated when the Supreme Court of the United States, after 40 years of administrative-state tyranny, over turned the Chevron Doctrine. In 1984 SCOTUS ruled that if Congress had left language in the law vague, that courts must defer to federal agencies whenever interpretation of the law was necessary. It led to an explosion of unelected bureaucrats appointees creating rules and regulations that over burdened nearly every aspect of our lives. We had become less free overnight.

What it meant when Chevron was overturned was that the legislative branch was now going to have to be far more specific in their lawmaking and not generally or vaguely delegate their powers to unelected people. The separation of powers was being restored; the legislature was to make the law and the executive to enforce it. We had become more free overnight.

Here in Georgia, the State Election Board (SEB) is an executive branch agency. In the new world we live in, after the Chevron decision overturned decades of precedent, the legislative branch must be the only entity to make the law. The problem with the way the Georgia General Assembly has delegated rule making authority to the SEB is that the current majority of the SEB has interpreted that to allow them to do whatever they want. And they cannot nor should conservatives want them to.

Yesterday I was on Politically Georgia and Patricia Murphy asked me how people can tell when the SEB rules stray into law making, and the answer is very simple; whenever the SEB strays into rulemaking that is “not tethered to statute.” And I choose those words on purpose because that is what the Attorney General told the SEB before they passed these rules in a memo that was publicly shared by the SEB. It’s not like the SEB wasn’t warned that the rules they were passing would not withstand a legal challenge.

Furthermore, I had this conversation with Janelle King shortly after she had been appointed to the SEB. She had called me to share the news of her appointment and I was excited and nervous for her. At some point in the conversation she asked me if I had any insight that might be helpful to her. I remember my response clearly; You are a member of the executive branch, and therefore you are there to enforce the law as written. You are not there to make new law. You are not a legislator, although there will be plenty of pressure on you to act like one.

Prophesy is not among my spiritual gifts. But in this case it was easy to see the coming storm.

So I, along with my employer and fellow Republican, James Hall, filed a lawsuit after the SEB decided to pass a flurry of new rules just days ahead of the start of early voting, that have the weight of law, and were not authorized by statute.

As a side note, I definitely know the rules were outside the law because I was involved in making many of those laws. I served both on the elections subcommittee and full House Committee on Governmental Affairs. I authored the first bill to replace our aging Diebold touch screen machines and drafted a letter to Governor Deal asking him to set aside funding for replacing the old machines. It is an undisputed fact that the audit process employed by the state to verify the results was added to the law because I spent every ounce of political capital I had left to make sure it was. I may have woken up one day and decided to dive head first into the policy weeds of elections, but that day was about a decade ago now, not recently.

I believe it is important to note that I do not question the motives of the SEB in trying to pass these rules. It is possible to see the rules as potentially beneficial (which I do not concede they are) but the case I brought against the SEB has little to do with those rules, and more to do with the fact that the SEB overstepped their authority and decided to become pseudo-legislators. And that power grab is causing damage to all of us as it has created a great deal of uncertainty not just among voters, but the people, like James Hall, who are tasked with implementing the law and conducting elections.

There have been multiple legislative sessions and multiple bills signed into law that govern elections since 2020. Some of those bills, such as the new provision signed into law this year that increases the number of audits the state performs, were the work product of my employer. In the law that creates the SEB, there is a provision for them to make legislative recommendations to the General Assembly on how the law should be modified. This in and of itself is evidence that the General Assembly has reserved its right to make new law governing elections. So if the rules are actually good and necessary, the SEB should exercise its ability to make those recommendations to the legislature so that they may be vetted and passed in the most appropriate manner. But there is nothing conservative about using an unelected board, and therefore an unaccountable board, to pass new law or changing existing law.

So then why should a conservative be concerned with the SEB making these rules? For one the rules were not appropriately vetted and I believe they have unintended and negative consequences that would have the opposite effect on voter confidence that the SEB believes they would. And while the supporters of the rules may believe they do no harm (again, I do not concede this), not one elected official has had the opportunity to weigh in on that debate in any meaningful manner or in a legislative setting. But more importantly, one day Democrats will be in control of the SEB. Do not think for a second they will not fully employ this extra-legislative authority that we allowed on our watch. Conservatives must draw a line in the sand now and realize there will be many elections in the future beyond this one. If we do not check this unconstitutional power grab by the administrative state now, we will lack the moral authority to do so in the future.

I have seen some criticism of our lawsuit that no one was complaining about the creation of drop boxes by the SEB under the emergency powers they operated under during COVID. This criticism demonstrates how ill-informed, or potentially intentionally misleading, some of the advocates for these unconstitutionally created rules have been in their rhetoric. A lot of legislators were in complete dismay by several of the actions the SEB took during that time. I was one of them. But so was Speaker David Ralston, who said at the time that the SEB’s emergency rules should be the, “purview of the legislative branch where members of the state House and state Senate” to “consider and debate and discuss and vet these things and then decide if that’s going to be the policy of this state.”

True to his word, Speaker Ralston sought to reign in the SEB first by removing the Secretary of State from the board and then severely limiting the SEB’s rule making authority even in in times of emergency. The results of that effort are found in SB 202, which is further evidence the legislature has already expressed their concern with the SEB making rules post 2020.

So we, as Republicans, took the state to court, and we won. We also had the support of other Republicans. including a current Republican member of the Georgia House. It was a complete and total win for the concept of separation of powers and the Constitution. A judge ruled that the rules were not tethered to statute and therefore were void and restored legislative supremacy over election law making. Principled conservatives see this as a huge win. But the story will not end there.

The Republican National Convention and the Georgia Republican Party have intervened as defendants in the case and have appealed the ruling. Doing so is a complete departure from the celebrations Republicans everywhere felt after Chevron was overturned. Seeing the Republican Party argue that unelected bureaucrats appointees should have the power to make new law is certainly a departure from traditional conservative values. Not to mention terribly and foolishly short sighted. But we expected them to appeal and I am prepared to to fight on behalf of reigning in this administrative state power grab as long as we need to.