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Guest post by A Concerned Atlanta Patriot

In Georgia, Senate Bill 202 (the infamous “SB 202”) was passed after the disastrous 2020 election cycle, to clean up the perceived underperformance or malfeasance of the Secretary of the State and the various county election boards.  No one was really sure what happened – they still aren’t, because there has been no meaningful investigation and the investigation conduction by the Senate Subcommittee was ignored after it found that “was chaotic and any reported results must be viewed as untrustworthy.”  

But the Georgia Legislature is a populist legislature, meeting only a few days each year, and without the resources to supervise its own laws.  In the past, it relied heavily on the integrity of the Secretary of State.  Because of lack of trust in the Secretary of State – and the results of the 2020 election – the Legislature passed SB 202, which changed the structure of Georgia election law completely.  It divorced the Secretary of State and the State Election Board, making the State Election Board into an arm of the state legislature.  But did it work?

The State Election Board is now an independent arm, with the Secretary of State only serving ex officio.  According to the law, one representative on the board is from each of the two major parties, but the other three are elected by the Legislatures itself – one from the Senate and one from the House, and the Chairman jointly elected by the Senate and the House.  

Whoever drafted SB 202 made it difficult to find a chairman at all. Not only did approval require legislative concurrence, but the chairman could not have held an office with a political party or been an employee of the state for at lest two years.  The chairman cannot have donated to political campaigns in two years.  When the Legislature neglected to appoint a Chairman in the last legislative session, the Governor appointed one – possibly the only qualified person in the state who could meet the stringent requirements – retired federal district Judge William S. Duffey.

Now that the Board is fully constituted, however, it finds itself with no departmental budget for personnel, no staff, no investigators.  Instead of separation, the Secretary of State is using its staff to oversee itself and to perform its duties.  Meanwhile, the State Election Board has no independent funding or resources to accomplish its extensive duties.  What kind of legislative “fix” does that?  

The duties of the State Election Board are listed in O.C.G.A section 21-2-31.  The Secretary of State is relegated to the duties of printing ballots and other administrative tasks in O.C.G.A 21-2-50.  But the way the duties were bifurcated leaves the State Election Board with all the substantive duties (except for the duties expressly imposed on the Secretary of State under the Help America Votes Act and the National Voter Registration Act, and even those leave-behinds were probably overlooked in drafting).  

The Board is also responsible for promulgating rules and regulations to obtain uniformity across the state.  One thing that is clear to any person with experience with the elections in Georgia is that each county has its own way of interpreting the rules – because uniform rules have not been adopted for critical areas of election integrity – such as how observers are allowed, what they can monitor, and how they can be replaced, or what the function of an “audit” is.  As the Coffee County investigation ongoing shows, the Secretary of State can investigate functions authorized by a county board of elections because the rules (at that time drafted by the Secretary of State) were not clear.  

The SEB is also directed to create rules that are conducive to the fair, legal, and orderly conduct the primaries in elections, and to make copies of the rules available across the state.  The Board’s hands are tied, however, because there is no independent budget for the State Election Board to assist in drafting rules and making proposals for better laws to the Legislature, another of its “duties.”  Even when the Legislature expressly asked for a report and recommendations on “Zuckerbucks” – by October 2021, so that the 2022 Legislature could react to the report – it was ignored with impunity.  That report has still not been issued.  Maybe this will come up on its meeting scheduled for September 28? 

Meanwhile the complaints and rule-making needs keep piling up.  Nothing has been done to investigate any of the major complaints, and employees and lawyers from the Secretary of State’s office are doing all of the work – even if they are investigating their own negligence.  The State Election Board is a paper tiger assigning all its duties back to the Secretary of State.  

The SEB’s duties include conducting investigations relating to matters relating to the administration of primary election laws and frauds in irregularities as well as any other action that the board determines to be conducive to the fair, legal, and orderly conduct of primaries of elections.  Again, the SEB lacks the personnel or budget to do any of these tasks.

If the Board wants to investigate the performance of the Secretary of State, it turns to the Secretary of State for resources.  How’s that going to work?  If it wants to file a lawsuit, it turns to the Secretary of State to manage.  The same is true with subpoenas, where the Secretary of State may act as the agent of the Board. 

In fact, in investigating the True the Vote allegations that Dinesh DiSouza turned into the 2,000 Mules documentary, the State Election Board authorized the Secretary of State to use subpoena power to investigate.  The Secretary of State immediately used that power to subpoena True the Vote to find out the name of the whistleblower who had exposed the Secretary’s malfeasance –again, seeking to protect its own bureaucracy rather than investigating all the instances of its own incompetence.  As Gregg Phillips, a subject of the  subpoena to reveal his sources, said on The Emerald Robinson Show, “The investigator himself and the people who fashioned this subpoena are going to get someone killed.  They don’t understand what they’re dealing with.”    

It remains to be seen whether the State Election Board will ever get the resources it needs to carry out its “duties.”  What is clear is that if the Board does not get financing and staff, nothing will get investigated.  When Governor Kemp recently received a credible report of 37,000 fake votes added in Fulton County after the election, he rejected the complaint, asking the State Election Board to investigate the matter, and saying (through the Attorney General)“the Office of the Governor does not have the authority to investigate election matters.”  Seriously?  In what state does the chief executive office and the chief legal officer not have the authority to investigate potential violations of law? 

It seems clear from the way the Legislature fashioned SB 202 and the way the Governor is enforcing it, that no one wants the State Election Board to use its powers.  Is this a paper tiger, or just legislative malpractice?  Whatever it is, nearly two years have passed since the catastrophes of the 2020 election and the legislative “fix” – and no changes have been made in the systems, and none of the credible complaints of illegality have been addressed.  What a country. 

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