As I Was Saying…

NEW: The new election rules in Georgia will almost certainly *not* hamstring the certification of the state’s electoral votes. And even if certification is delayed, such delays do not open up a legal loophole for Trump to steal the presidency. I explain ⬇️https://t.co/71gcHLkT3c

— Anna Bower (@AnnaBower) September 23, 2024

Is Georgia going to throw the Presidential election into the 12th Amendment? No.

This brings me to a second point: Georgia law sets out a crystal clear deadline for county-level certification: Local election returns “shall be certified by the superintendent not later than 5:00 P.M. on the Monday following the date on which such election was held…” (emphasis added). That provision places a mandatory duty on local election officials to certify election returns roughly six days after Election Day. No matter how one defines “reasonable inquiry,” nothing in the statute empowers the board to flout that deadline because it wants to investigate alleged irregularities or fraud. A board’s refusal to certify on that basis would amount to a violation of state law. Georgia’s Secretary of State, Brad Raffensperger, recently said as much. In a post on Twitter, now X, Raffensperger wrote: “Georgia's Election Integrity Act requires counties to certify the election results by November 12th and we fully anticipate that counties will follow the law.” 

It's no accident that local officials’ hands are tied when it comes to certification. Nineteenth century case law is replete with cautionary tales of the mischief that can ensue when local officials wield broad discretion over election certification. Equipped with the belief that they possessed the power to reject inconvenient electoral outcomes, rogue officials seized opportunities to manipulate the certification process for partisan ends. State courts and legislatures, in Georgia and elsewhere, tamped down on partisan election subversion by declaring that local election boards hold a “ministerial,” or mandatory, duty to certify election returns.

And on the more general question of electoral officials' authority

The answer is “no.” The reason is the same as the reason why the “reasonable inquiry” rule cannot be used to delay certification: the State Election Board does not possess legal authority to promulgate regulations that would override the clear, mandatory certification deadline set out by statute. In fact, the “examination” rule was adopted within a broader suite of rules that acknowledge the mandatory deadline set out in the statute: “The consolidated returns shall then be certified by the superintendent not later than 5:00 P.M. on the Monday following the date on which such election was held…”

Yeah; there’s a deadline for certification. And state agencies have to meet it. That sort of prevents any delay that throws out Georgia’s votes for POTUS (and again, imagine how popular THAT would be!)

And then, the hand count rule. First, it’s not what you think:

The confusion on this point seems to stem from a misunderstanding of the distinction between counting ballots and counting votes. Generally, it’s true that hand counts are less accurate and less efficient than machine counts. Georgia’s rule change, however, does not require a hand tally of votes cast—a task that would require determining voter intent for dozens of races on each ballot. If it did, that would indeed cause significant delays. Instead, the rule requires a hand count of the sheets of paper that are stored in the scanner at the end of Election Day. Votes, by contrast, will still be counted by machine tally.

But:

But there is a good chance that the hand count rule will not withstand legal challenge and actually won’t be in effect at all when the election happens. The board approved the rule over the advice of the Georgia attorney general’s office, which serves as the board’s legal adviser and is responsible for defending the board from suit in court. In a letter sent to board members ahead of Friday’s meeting, Senior Assistant Attorney General Elizabeth Young wrote that “these proposed rules are not tethered to any statute—and are, therefore, likely the precise type of impermissible legislation that agencies cannot do.” Pre-election litigation over the rule is expected. 

In short, the rule almost certainly wouldn’t delay results by weeks or months and efforts to delay or refuse certification based on minor errors or discrepancies discovered during the reconciliation process would be unlawful, even if the rule goes into effect—which it probably won’t.

There’s also the Electoral Count Reform Act, which raises the threshold for objecting to a state’s slate to 1/5 of both houses, and a majority to sustain the objection. If Georgia’s slate is knocked out entirely, the Act simply lowers the majority needed by Georgia’s electoral votes.

Triggering the 12th Amendment is really, really not going to happen.