Potential Drawbacks of Georgia’s New Hand Tabulation Requirement
November 1, 2024
By: Hailey Arnett
Georgia has been a key battleground state for decades, and in 2020, the Democratic presidential candidate Joe Biden won the state’s electoral votes by a narrow margin of around 12,000 votes. When the margin between candidates was less than 0.5%, Georgia law permitted but did not require a recount. For the presidential race in Georgia, the margin between the candidates was only 0.2% before the post-election hand count. Therefore, Brad Raffensperger, Georgia’s Secretary of State, requested a hand count of Georgia ballots after the election, or a “risk limiting audit,” to ensure the accuracy of the electronic counting. After the post-election hand count, the Associated Press called Georgia for presidential candidate Joe Biden. For the first time in nearly thirty years, Georgia went blue for the presidential race.
Afterwards, former President Donald Trump asked Georgia’s Secretary of State to find the votes that the former President would have needed to win. Additionally, according to a grand jury indictment, sixteen people from Georgia, falsely represented themselves as Georgia electors to alter the results of the 2020 presidential candidate. These allegedly fake electors attempted to reallocate electoral votes for former President Trump by sending false certificates of the election results to the National Archives to provide former Vice President Mike Pence with the opportunity to alter the results of the election. Based on the grand jury’s indictment, former President Trump is currently facing eight felony charges for his role in trying to modify the outcome of Georgia’s election in 2020.
In the months leading up to the 2024 presidential election, Georgia’s State Election Board amended SEB 183-1-12-.12(a)(5) to mandate a post-election hand tabulation, which would have required that Georgia poll workers hand count ballots after they were electronically cast to ensure that the initial, electronically tabulated total number of ballots was accurate. Previously, only a scanner calculated the total number of Georgia voters’ ballots, but this change would have required three separate poll workers to each hand count the ballots until all three could confirm that they counted the same number of ballots. This post-election hand tabulation rule could have potentially made the system less accurate and more time-consuming. The Board’s new rule may have reduced public trust in the election system, and it could have created confusion about the results of the 2024 presidential election. When it implemented this rule, the Board may have overreached its authority, and based on this concern, Judge Thomas Cox, Jr. of the Superior Court of Fulton County enjoined the post-election hand tabulation rule from being enforced against poll workers in Georgia.
When poll workers hand count ballots as the initial method of tabulating votes, researchers have found this to be less accurate than electronic scanning. A study from Massachusetts Institute of Technology found that the error rate for hand counting was 8% while the error rate for electronic scanning was only about .5%. This rule would not have mandated hand counting as the initial method of counting ballots, but the requirement that poll workers hand count ballots after an election to confirm the number of electronically tabulated ballots may have also been less accurate.
Second, because hand tabulation has also been more time-consuming than electronic scanning, this rule could have delayed the election results. Under the post-election hand tabulation rule, each of the three poll workers who counted a set of ballots would have had to explain discrepancies between their tabulations rather than mechanizing that aspect of the process, which may have generated an unnecessary delay with determining election results.
Third, the Board’s rule change could have degraded public trust in the election process. By requiring poll workers to hand count ballots, the Board arguably communicated to voters that the electronic scanning process was a less accurate method of tallying ballots despite evidence to the contrary. Fourth, people could have used this rule to create uncertainty around or manipulate the results of the 2024 presidential election in Georgia. For instance, if former President Trump were to receive fewer votes in Georgia than presidential candidate Vice President Kamala Harris, the post-election hand tabulation requirement may have generated reporting delays that could have created uncertainty and reduced the public’s confidence in these results. Additionally, according to Georgia Senator Raphael Warnock, the Board implemented this rule to provide election officials with the opportunity to decide not to certify results that are not in their favor.
Public officials were concerned that this rule could have been used to manipulate election results when combined with two other rule changes the Board enacted in August 2024, which were also struck down by the Superior Court of Fulton County. First, the Board implemented a rule that provided election officials with discretionary authority to review election results before certification. Second, the Board implemented a rule that provided the county board with the ability to review election documentation from precincts. In a separate unresolved lawsuit, the Democratic National Committee and other parties sued the Board. The plaintiffs asserted that the first rule, which provided election officials with discretionary power to investigate fraud, usurped a power that was reserved to courts. The plaintiffs also asserted the Board implemented these rules to provide election officials with the opportunity to refuse to certify the results of an election that was not in their favor or to delay the results of such an election. Judge Cox, Jr. of the Superior Court of Fulton County struck down both of these rules, but a different judge in this same court heard the DNC’s challenge, and this lawsuit still awaits a decision.
Fifth, according to the Board’s chair, John Fervier, the Board may have overreached its statutory authority when it implemented this rule. According to Fervier, because the Board “is an administrative body,” it possessed the power to interpret but not make law as the authority to make law rests with the Georgia legislature. Because the Board’s hand tabulation regulation did not rest on an interpretation of existing Georgia law, Fervier asserted that it may have been an impermissible exercise of the Board’s authority.
Similarly, the Georgia Attorney General, Chris Carr asserted in a memo that the Board did not possess the authority to enact the hand tabulation unless it was grounded in a previously enacted statute by the state legislature as the Board is subject to the legislature’s statutory authority. Because the Board did not ground the hand tabulation regulation in a previously enacted statute by the state legislature, Carr also asserted that the regulation may have been an impermissible exercise of the Board’s authority.
On October 16th, 2024, Judge Thomas A. Cox, Jr. of the Superior Court of Fulton County affirmed their concerns in Eternal Vigilance Action, Inc. v. State of Georgia, and he held that the post-election hand tabulation rule along with additional rules enacted by the Board were an unconstitutional exercise of its authority because the Board only possessed the authority to enforce existing state law. It could not expand existing statutes or “create new requirements.” The post-election hand tabulation rule created additional duties for poll workers by mandating that they hand tabulate ballots after the election to confirm that the number of electronically tabulated ballots was correct. Because the state legislature did not authorize the post-election hand tabulation requirement in the Election Code, the court held that it was inconsistent with three provisions of the Georgia Election Code that described poll workers’ duties. Additionally, the court held that the post-election hand tabulation rule along with additional rules enacted by the Board violated the Georgia Constitution’s separation of power provision because the delegation of the state legislature’s rule-making authority to the Board, an executive agency, was only permissible if there were clear guidelines to constrain the rulemaking, which did not exist with this exercise of the Board’s authority. Finally, the court also held that the rule violated the Elections Clause of the U.S. Constitution because state executive agencies like the Board do not have the authority to create time, place, and manner rules for federal elections. This authority rests with the state legislature. For the foregoing reasons, the Superior Court of Fulton County enjoined the post-election hand tabulation rule and additional rules and prevented the Board from enforcing this requirement against Georgia poll workers.
At first, it was not immediately clear how the Board’s decision to mandate hand tabulation rather than electronic scanning for ballots was nefarious, but against the largest backdrop of alleged election tampering in Georgia’s 2020 presidential election and recent changes regarding election certification, this rule change did not seem benign. The presidential candidates, Vice President Kamala Harris and former President Donald Trump, currently poll very closely in the key battleground state of Georgia, and these last minutes rule changes by the Board could have made the election results less accurate and more time-consuming. In this potential overreach of statutory authority, the Board risked undermining public trust in Georgia’s electoral system and opening a pathway to further weaponization of the electoral system in a presidential election.