Fulton County’s Court-Order Gambit is Bad For Democracy
“Can’t escape from the common rule
If you hate something, don’t you do it too (too)”
-Pearl Jam (Not for you)
Get your stuff together, Fulton County. And don’t get cocky, GAGOP.
On Wednesday, Aug. 20, the Fulton County Commission refused to appoint two Republican nominees to the county Board of Registration and Elections, even after a judge told them to do it. The vote deadlocked 2–2 because three Democratic commissioners were absent. Commissioner Dana Barrett and Commissioner Mo Ivory voted no. Senior Superior Court Judge David Emerson has already warned that refusal could lead to contempt, and the Court of Appeals declined to pause his ruling while the county appeals.
Ignoring a court order is not civil disobedience, it is a direct shot at the rule of law. Politics already looks like a ping-pong match where each side justifies its next escalation by pointing to the last one committed by the other side. That cycle is poison. And so if you were one of the folks in Catoosa County who denied a court order to qualify local candidates, or you tolerated that, or you played footsie with supporting it (see pic below), maybe you should shut your pie hole and sit this one out.
So allow me to play the role of Mercutio to both the GOP and the Democrats on this one: A PLAGUE ON BOTH YOUR HOUSES!
We got here because state law and Fulton’s local structure say the five-member elections board includes a chair picked by the commission and two members nominated by each party, then appointed by the commission. Judge Emerson ruled the commission’s role is ministerial on those party seats, sound familiar? If the nominees meet basic qualifications like residency and registration, the commission does not have discretion to reject them for political reasons, also sound familiar? The two nominees at issue are Julie Adams and Jason Frazier.
In a twist of irony, this is the same Julie Adams who sued the state last year as a local election board member to challenge whether her role was ministerial, which is what the law says it is, or if she had discretion to toss out an election. Back then it was Adams who was arguing in court that she should not just be a rubber stamp. Anyone who tells you that a local election board member is only a rubber stamp doesn’t understand the importance of certification of elections as part of a process to contest an election with errors, or even fraud. But I digress, and that’s a post for another time. It’s just funny to me how these people don’t recognize the irony.
If the Fulton County Commission truly believes they should not be forced to seat “unelected bureaucrats” that a private political party hands them, there is a legitimate legal argument they can make. The Georgia Supreme Court’s decision in Delay v. Sutton struck down a local law that gave private groups the power to appoint members of DeKalb County’s Board of Ethics. The Court said the power to appoint public officers cannot be delegated to private entities that are not accountable to voters. That principle comes from an older case, Rogers v. Medical Association of Georgia. In plain English, appointments to government office must be made only by elected officials and not private organizations or individuals. Parties are private entities and therefore their appointments to the local elections boards are unconstitutional.
A key distinction; in many counties, political parties nominate and the public body appoints. If a local law effectively turns that appointment into a rubber stamp with no discretion, some will argue that is a de facto delegation to a private organization. Maybe that argument wins under Delay, maybe not. But there is only one place to resolve it. Court. Not on the dais in a made-for-Twitter standoff that tells voters laws are optional.
Secretary of State Brad Raffensperger has already called the commission’s defiance reckless and said it undermines trust. I cannot stress this enough. The Democrats have spent the last two years telling us that democracy was on the ballot and that if Donald Trump won the rule of law would be meaningless. Nothing like becoming the thing you told all of us you hate while also chipping away at the faith we should all have in the rule of law.
Every time an elected body shrugs at a court order, it hands oxygen to people who want to believe our institutions are broken beyond repair. That is the exact narrative Fulton leaders say they are fighting and yet their actions are a direct attack on our institutions.
If Fulton County wants to challenge the statute or its local charter under Delay v. Sutton, by all means file the case and make the best constitutional argument you can make. Seek a stay, seek expedited review, and let the courts decide whether party-controlled nominations that bind the commission pass muster. Until then, follow the order, seat the nominees, and get back to the work of running elections.
That is how you defend democracy. You obey court orders while you fight to challenge wrongs and improve the system. I swear. All y’all need a trip to the woodshed. Children.
