ATLANTA — The office of Georgia Attorney General Chris Carr sent a letter to the members of Georgia’s State Election Board Friday morning telling them some of the planned rule changes to election policies ahead of the presidential race may conflict with state law as well as the board’s authority.
A copy of the letter was obtained on Friday morning.
According to the letter, a review of new rules proposed by members of the board “reveals several issues including that several of the proposed rules, if passed, very likely exceed the Board’s statutory authority and in some instances appear to conflict with the statutes governing the conduct of elections.”
The rules proposed for a vote during Friday’s State Election Board meeting would fall in that “disfavored” window due to the proximity of the Nov. 5 election, which is less than 50 days away.
The AG’s office’s letter also says that the board’s power to make new rules on elections is limited to policies that do not go beyond or conflict with the Georgia Election Code.
Additionally, two of the proposed rules that members of the board asked the AG’s office to review for the Sept. 20 meeting would “change the form of the ballots and require that the Secretary of State and the counties post ‘freely accessible links’” to the list of electors before advance voting and then also maintain those files for 10 years.
The letter from the AG’s office says those rules would, by statute, fall under the purview of the Secretary of State’s office and are not within the board’s regulatory powers.
Another rule proposed by the board regarding poll watchers would go “beyond the statutorily-designated list of places a superintendent may decide to place poll watchers and instead supplants the superintendent’s discretion with the Board’s own. This too does not carry into effect a law already passed by the General Assembly but rather expands upon the statute; the rule, if adopted, would then very likely be subject to legal challenge as invalid.”
Yet another proposed rule focused on enacting additional requirements to absentee balloting processes would be inconsistent with state statute, the AG’s office wrote, in another rule that would “likely go beyond the scope of the Board’s authority.”
Separately, the AG’s office said another rule that would make county boards of registrars report information about issued ballots, received or rejected during advanced voting, such as political affiliations for ballots cast, would also likely exceed the board’s authority.
Two more rules focused on ballot counting on Election Day by hand, and during the advance voting period, were also said to “not reflect any provision enacted by” state lawmakers, and no statutes support the details of the proposed rule, according to the AG office’s letter.
Speaking more broadly about the series of rules proposed by the board in recent weeks, Carr’s office said “Accordingly, these proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do.”
In closing, the office said the board may direct additional questions to them for assistance in a process outlined by the AG’s office staff.
At the start of the AG’s office letter, the State Election Board was told their more recent methods of seeking comment on legality of proposed rules were “unhelpful,” as if the board wanted “specific legal advice concerning any proposed rule or action, the Board should seek such advice in writing addressed to this office,” saying “This office cannot search through email correspondence to which it is simply copied to determine whether or not the Board has made a passing comment to seek legal advice on any particular topic. In addition, seeking unspecified comment on any proposed rule is unhelpful.”