Rick H. posts the Washington Post story about the lawsuit from an official trying to guarantee the right to refuse to certify election results in Fulton County, Georgia. I confess, I have a somewhat different reaction to the litigation, a little different from the concerns about what the litigation might yield.
When I spoke to Rolling Stone about this litigation earlier this month, here was my take:
Adams’ lawsuit could also backfire and prove that the certification process — a previously mundane and “ministerial” task that election deniers have hijacked in recent years — is not up to the discretion of officials like Adams, says Derek Muller, a professor at Notre Dame Law School who has written about the issue of local certification of elections.
“[Adams] had no basis in law to refuse to certify the results,” Muller tells Rolling Stone and American Doom. “If anything, this lawsuit is likely to result in a legal decision that shuts down claims like hers well before the election in Georgia.”
You can see the complaint here. The complaint rightly notes that one portion of the Election Code empowers the Board to “inspect systematically and thoroughly the conduct of primaries and elections . . . to the end that primaries and elections may be honestly, efficiently, and uniformly conducted.” The complaint also rightly notes elsewhere that the Code allows refusal to certify in some circumstances: “If, upon consideration by the superintendent of the returns and certificates before him or her from any precinct, it shall appear that the total vote returned for any candidate or candidates for the same office or nomination or on any question exceeds the number of electors in such precinct or exceeds the total number of persons who voted in such precinct or the total number of ballots cast therein, such excess shall be deemed a discrepancy and palpable error and shall be investigated by the superintendent.”
But the complaint tries to conflate the two things. It asserts that if there is some dispute about the ability to “inspect” the election, then the board is empowered to refuse to certify and investigate. That’s not what the Code allows. The board might have power in other circumstances (e.g., in the months and years ahead of an election) to develop procedures about how to inspect conduct. But when it comes to certification, the scope of discretion is quite limited. To borrow an analogy I used in Election Subversion and the Writ of Mandamus:
Certifying an election is something like an automotive worker at the end of an assembly line, affixing windshield wiper blades to a vehicle. That worker might be able to stop the assembly line if the car has only three tires or if the doors are missing. But the worker is not permitted to stop the assembly line to investigate whether the inmost parts of the engine were fitted together to that worker’s satisfaction. Other workers are responsible for other stages in the process. There are other checks in the process—other managers and other supervisors tasked with those responsibilities; workers must know their roles and what responsibilities reside with someone else.
This complaint, filed well before Election Day, may actually serve to establish the kind of precedent that would help expedite certification in the event that disputes later arose, because I view it as exceedingly unlikely that a court grants the relief the plaintiff here seeks. And if there’s an affirmative order from Georgia courts well before Election Day that certification is a largely ministerial task and that refusal to certify can only occur under limited, enumerated terms, it would make any disputes this fall less likely and any resolution much faster. Perhaps I’m wrong, of course, and a court issues relief for the plaintiff or an adverse judgment doesn’t deter later actors. But I wanted to suggest it as a possible alternative way forward.