Can Fulton County Do This to the GOP? Yes, Actually

Fulton County made the news again this week for twice rejecting one of the Fulton County GOP’s nominees to the county Board of Registration and Elections, just days after the board itself avoided replacement by state appointees. Jason Frazier had challenged almost 10,000 voter registrations in Fulton County, most of which were not upheld. Democrats claimed that Frazier was attempting to purge legitimate voters from the rolls, while his Republican supporters argued he was doing the county a service by ensuring its voter rolls were properly updated and accurate. Fulton commissioners ultimately voted 5-2 along party lines to reject his nomination and prevent it from being resubmitted.

Naturally, this rejection drew strong responses from various GOP organizations. Both the Fulton County GOP and the “Voice of Rural America”, the web show hosted by new Georgia GOP 1st Vice Chair Brian Pritchard, sent out emails titled “Stop the Steal”, arguing that the Democrats on the Fulton Commission were illegally disenfranchising Fulton voters by refusing to appoint the GOP nominee. The Georgia Republican Assembly and newly elected Georgia GOP Chair Josh McKoon argued in an email and a tweet, respectively, that Fulton County law requires the county commission to appoint each party’s nominees.

Chairman McKoon is a former Georgia state Senator, and Alex Johnson has led the GRA for many years, and both have been involved with grassroots politics on the county level for longer than I have. It should also be noted that, unlike me, they’re both attorneys. 

But they’re wrong.

Way back in 2015, DeKalb County legislators passed a bill allowing various outside groups to appoint members to a new, independent county ethics board. Voters overwhelmingly approved this new board and its construction in a referendum. But there was a problem. The Georgia State Constitution doesn’t permit unelected private entities to appoint members of government boards, a prohibition that was ultimately upheld by the Georgia Supreme Court in 2018.

At that time, DeKalb’s rules were similar to Fulton’s regarding nominees to its elections board. The chair of the DeKalb GOP and the chair of the DeKalb Democrats, respectively, each appointed two board members, and the Chief Superior Court Judge appointed the 5th member. But thanks to the Supreme Court’s ruling, this plan was no longer constitutional. So the law was changed to state that each county party would nominate two members to the board, and it would be up to the elected chief judge to approve or reject those nominations.

This issue came up in DeKalb in 2021, when the newly elected DeKalb GOP board nominated its own highly controversial candidate to the elections board. Chief Judge Asha Jackson eventually rejected that nominee, and ultimately the DeKalb Republicans tapped former DeKalb Commissioner Nancy Jester for the seat. (Mrs. Jester has a history of bipartisan support for her effective work in numerous roles in DeKalb, and I hope the DeKalb GOP sent Judge Jackson a thank you card for forcing that decision.)

Now, it’s true that the current law in Fulton County says that the commission “shall” appoint the nominees of each party to the elections board, and “shall” generally connotes a requirement in the law. But there’s a rule of legal interpretation called the “constitutional doubt canon” that says laws should be interpreted in a constitutional manner if it’s possible to do so. The commission may be required to appoint only candidates that parties have nominated, but if it has no discretion not to appoint a specific candidate, then the appointment would be solely up to private, unelected political parties, and therefore unconstitutional.

Obviously Josh McKoon and Alex Johnson need to advocate for the interests of their respective Republican organizations, as do county parties and other elected GOP officials. And I don’t know Mr. Frazier, nor have I followed his voter registration challenges in detail, so I can’t say whether the Fulton County Commission did the Fulton GOP a huge favor in stopping his nomination, the way Judge Jackson did for the DeKalb GOP. But as a matter of state constitutional law, it is within the discretion of the commission to accept or reject county party nominees to any government board. It would certainly be an improvement in our political dialogue if we could stop using overcharged hyperbole like “Stop the Steal!” to refer to elected officials performing their constitutionally required duties.