The Georgia State Election Board voted on Friday to force counties to hand-count all ballots cast on Election Day, a move critics say could significantly delay the reporting of results in the battleground state and inject chaos into the post-election period.
The new rule, which passed on a 3-2 vote, runs counter to extensive legal advice from the top election official and law enforcement officials in the state. A nonpartisan collective of local election officials had also objected to the change.
The new rule is the latest in a stream of right-wing election policies passed by the State Election Board over the past few months. The board has come under increasing pressure from critics already concerned that it has been rewriting the rules of the game in a key swing state to favor former President Donald J. Trump. Last month, the board granted local officials new power over certifying the election, which opponents say could potentially disrupt the process if Mr. Trump loses in November.
The new rule to require hand counting in addition to a machine count, critics argue, could introduce errors and confusion into the process and potential disrupt the custody of ballots.
To start hand-counting on election night, poll workers would likely have to break open the seals on boxes of completed ballots, possibly exposing the ballots to fraud or loss. In previous elections, ballots remain sealed and stored securely unless a recount was ordered.
The hand-counting rule was among nearly a dozen election changes under consideration on Friday. The proposals included a variety of conservative policy goals like expanding access for partisan poll watchers. The proposals come just 46 days before the election, after poll workers have been trained and ballots have been mailed to overseas voters.
On Thursday, the attorney general’s office took the rare step of weighing in on the proposed rules, saying they “very likely exceed the board’s statutory authority.” Elizabeth Young, a senior assistant attorney general, characterized five specific proposals as either exceeding the board’s legal reach or as an unnecessary redundancy, including the hand-counting proposal.
“There are thus no provisions in the statutes cited in support of these proposed rules that permit counting the number of ballots by hand at the precinct level prior to delivery to the election superintendent for tabulation,” Ms. Young wrote in a letter, which was reviewed by The New York Times. “Accordingly, these proposed rules are not tethered to any statute — and are, therefore, likely the precise type of impermissible legislation that agencies cannot do.”
John Fervier, the chair of the State Election Board, echoed the guidance of the attorney general’s office prior to voting on Friday, warning the members that “we’ll be going against the advice of our legal counsel by voting in the affirmative.” He also indicated that the board does not have the authority to make such a rule; such power rests solely with the legislature.
“This board is an administrative body, it’s not a legislative body,” Mr. Fervier said. “If the legislature had wanted this, they would have put it in statute.”
Janelle King, one of the members who voted in favor of the new rule, argued that the board was “creating more stability in our election process” by bringing more transparency to the process and giving election officials the opportunity to ensure that the final results are accurate.
The vote came after more than 30 public comments from local election officials, democracy organizations and voters in Georgia, with the vast majority denouncing the new rule. Many argued against making changes so close to the election and warned that the new rules would erode the security of elections in the state.
The board tabled a similar proposal requiring a hand count following each day of early voting in Georgia. Ms. King expressed concern about early results leaking during the hand count process.
At a news conference on Friday morning, Ms. King, a Republican appointee to the election board, pushed back against criticism that the board was making fundamental changes to the process so close to Election Day.
“I am absolutely considering time,” said Ms. King, “but I also consider the job that we have been tasked to do, and sometimes it doesn’t always agree.”
She continued, “We are raising the standard because the right to elect our leaders is a fundamental core principle of a republic.”
The Georgia State Election Board, once a bureaucratic backwater in the state election apparatus, has thrust itself into national headlines with a 3-2 right-wing majority that has aligned itself closely with rules rooted in election conspiracy theories.
Last month, the board passed a rule upending decades of settled Georgia law, allowing local election officials to conduct a “reasonable inquiry” investigation before certifying election results, a rule Democrats and election experts said could disrupt the certification process.
The board also approved an investigation into the 2020 election in Fulton County, long a desire of right-wing election conspiracy theorists but far from the list of priorities of local election officials or the secretary of state.
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