The EVA Decision Is Coming for Your Insurance Regulations

Dedicated to the Election Integrity Industrial Complex. You know who you are.

Dear Reader, when Eternal Vigilance Action took the Georgia State Election Board to court over its unlawful rulemaking, I knew the implications of the case would extend well beyond elections. What I didn’t expect was to have such a convenient example delivered by Georgia’s newly elected Insurance Commissioner before she even took office.

According to WSB-TV⁠, Insurance Commissioner-elect Keisha Sean Waites has an ambitious agenda for her first 100 days. She wants to lower insurance premiums, prohibit insurance companies from considering credit scores and ZIP codes when calculating premiums, expand consumers’ ability to seek damages from insurers, and streamline regulations to encourage more insurance companies to enter the Georgia market.

Some of those proposals might be good ideas while others deserve considerable scrutiny. I have my own thoughts about whether prohibiting insurers from considering geographic risk factors will actually lower premiums, but I’ll save that discussion for another day.

Today, I’m interested in what authority Commissioner Waites will have to accomplish her agenda.

It just so happens that the Georgia Supreme Court provided some guidance on that subject last year, thanks to a little lawsuit brought by Eternal Vigilance Action, James Hall, and yours truly.

In June 2025, the Georgia Supreme Court unanimously ruled in Republican National Committee v. Eternal Vigilance Action that four rules adopted by the State Election Board exceeded its statutory authority. In reaching that conclusion, the Court overturned a 35-year-old precedent that had permitted broad delegations of legislative authority to executive agencies.

The Court reaffirmed a fundamental principle of our constitutional system, a little thing called separation of powers. The Georgia Constitution vests legislative power in the General Assembly. Executive agencies may exercise the authority the legislature lawfully assigns them, within the limits established by statute. They cannot invent substantive policy simply because they believe doing so would serve the public interest.

And that brings us back to Commissioner Elect Waites.

Georgia law already gives the Insurance Commissioner considerable authority to review insurance rates, investigate complaints, enforce consumer protection laws, and penalize insurers that violate those laws. Waites is entirely within her authority to exercise those powers.

But her proposal to prohibit the use of credit scores presents a different legal problem.

The General Assembly has already established a statutory framework governing the use of credit information in insurance underwriting. O.C.G.A. § 33-24-91 imposes specific restrictions on how insurers may use credit information. The law permits certain uses while prohibiting others.

The same statute already prohibits using ZIP codes to calculate credit-based insurance scores. However, that prohibition does not extend to every use of geographic information in determining insurance premiums. Other provisions of Georgia law contemplate risk classifications based on factors that affect expected losses.

Waites wants to go considerably further than the legislature has gone.

She is free to make that argument to legislators. If she wants a comprehensive prohibition on credit-based insurance scoring or geographic rating factors, she will need the General Assembly to change the law.

The same applies to her proposal to expand consumers’ ability to sue insurance companies.

Georgia already provides remedies for certain bad-faith insurance practices under O.C.G.A. § 33-4-6. Expanding those remedies, creating additional causes of action, or changing the legal standards governing liability would require legislation.

Then there is the commissioner’s general rulemaking authority under O.C.G.A. § 33-2-9.

That statute authorizes the commissioner to adopt rules and regulations reasonably necessary to implement Georgia’s Insurance Code.

Sound familiar?

The State Election Board also possessed broad statutory rulemaking authority. Its defenders argued that language granting authority to promote fair, legal, orderly, and uniform elections permitted the board to adopt the rules it considered necessary.

The Supreme Court rejected that interpretation.

The Insurance Code’s general rulemaking provision must now be understood in light of the constitutional framework reaffirmed in the EVA decision. Regulations need a sufficient statutory foundation. A general grant of authority to implement the law cannot become a license to rewrite it.

Fortunately, Waites appears to understand that at least some of her proposals require legislative action. WSB reports that she intends to work with lawmakers on her three major initiatives.

Good. I hope she goes that route and doesn’t try to invent new law herself.

I would welcome the opportunity to see these proposals subjected to committee hearings, public testimony, debate, amendments, and recorded votes. Insurance regulation involves complicated economic tradeoffs, and Georgians deserve to know what their elected representatives think about them.

That process also provides an opportunity to examine whether the proposals will accomplish their stated objectives. For example, insurance premiums reflect numerous risk factors, including geography, claims experience, and the cost of repairing or replacing damaged property. Legislators should understand the potential consequences of prohibiting insurers from considering particular factors before adopting such a prohibition.

Waites has every right to advocate for her policy agenda. She was elected to an office with significant regulatory responsibilities. She also has an obligation to exercise those responsibilities within the authority granted by the General Assembly.

Which brings me to the people to whom I have dedicated this column.

For years, members of what I affectionately call the Election Integrity Industrial Complex have advocated giving the State Election Board expansive authority to adopt whatever election rules they believe are necessary. When EVA challenged that authority, we were treated as though insisting that government agencies follow the law was somehow an attack on election integrity.

I wonder how many of those same people would be comfortable with a Democratic Insurance Commissioner exercising similarly expansive rulemaking authority over Georgia’s insurance industry.

After all, if an executive agency gets to decide for itself what regulations are necessary to accomplish its preferred policies, the identity of the person running that agency becomes awfully important.

The Georgia Supreme Court’s decision protects the constitutional allocation of power regardless of who happens to occupy an executive office. The Court’s reasoning applies to Republican and Democratic administrations alike.

When we filed the EVA lawsuit, we were defending a constitutional principle that had been neglected for decades. We understood that restoring the proper limits on executive rulemaking would have consequences throughout Georgia government.

We were perfectly comfortable with that.

So, to my friends in the Election Integrity Industrial Complex, consider this a small thank-you for helping demonstrate why our lawsuit was necessary.

And to Commissioner-elect Waites, the Supreme Court has provided a useful roadmap for respecting the legislature’s authority while pursuing your agenda.

As for the rest of us, we should expect every elected official, regardless of party, to respect the constitutional limits of the office they hold.