The Guardian lede claims, “Trump’s plan to steal election is taking shape.” Is that right?

The New York Times opens this way: “The Republican-controlled Georgia State Election Board approved on Tuesday a measure that could empower local officials to refuse or delay certification of a county’s election results, creating the potential for another disputed and contentious post-election period in November.”

“Could” is doing a lot of work here.

In the Washington Post, it’s this way: “And it got to work this week approving a raft of new rules that critics say could void valid votes, place onerous burdens on overtaxed election workers and potentially delay the certification of results.”

Likewise, “could . . . potentially” seems to be doing significant work. (And it’s all hedged with “critics say.”)

So let’s look at that rule. It’s a cause of some mild concern, in my view, but nothing particularly significant, and certainly nothing likely to affect the results of the election in any formal way.

Here it is, in its totality, as entered into the “definitions” section of the administrative rules:

“Certify the results of a primary, election, or runoff,” or words to that effect, means to attest, after reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.

The first question is, could a state board of election, by its own administrative rule, “empower” election boards in this way? Almost assuredly not.

State law empowers election officials, not state administrative rules. State administrative rules can shape the rules concerning the discretion or the exercise of that power. It can set timing or best practices. But the Georgia election code already defines what election officials may do. That includes, “To receive from poll officers the returns of all primaries and elections, to canvass and compute the same, and to certify the results thereof to such authorities as may be prescribed by law.” So, a “reasonable inquiry” is, really, tautological: it must refer to some power that exists in a statute. The power to perform basic addition, for instance. To the extent there is any power, it is in state law. And the language of “reasonable inquiry” can only occur pursuant to existing state law. The rule (really, a definition) does nothing new and creates no new power.

As I pointed out in an earlier post, there are very limited circumstances for an election board in Georgia to “investigate” anything. And to the extent those things exist, they are creatures, again, of state law.

The rule also does not change any deadlines for certifying election results–and rightly so. Georgia’s Secretary of State noted that state law still requires certification by November 12. The board has no new power to delay certification.

Additionally, one might look to cases like Bush v. Gore, Moore v. Harper and the Legislature Thereof Clause to suggest that an administrative agency cannot alter the rules set by the state legislature in a presidential election. Bush and Moore both involved state courts construing state constitutions or state law. But in 2020, the Eighth Circuit in Carson v. Simon found that the Minnesota Secretary of State had impermissibly altered an election rule in violation of the Legislature Thereof Clause.

Now, that said, what’s all the fuss about? The Atlanta Journal-Constitution frames the proper inquiry:

The Georgia Election Board finalized a rule this past week that requires county election officials to conduct a “reasonable inquiry” before certifying results. What it didn’t do was define “reasonable inquiry.”

This kind of ambiguity creates the problem. It could (emphasis on the “could”) lead to litigation. It could (id.) lead to board members citing it to purport to exercise power they lack, ignoring statutory constraints and instead sticking with regulatory constraints. That’s certainly not a good thing, and it could lead to public confusion or distrust.

That is, in the end, it is, of course, possible that this provision is cited as a fig leaf to try to “investigate” election results. But it cannot plausibly be cited to delay certification beyond the existing deadline.

And it’s not clear whether the existence of this new language would materially change the behavior of anyone inclined to “investigate,” anyway. If one wanted to complain, to purport to investigate, to refuse to certify, or any such thing, they might be inclined to do so regardless of this provision (indeed, some have). It offers a kind of aura of support for the concerns of some. But in the end, I don’t think it will formally make any legal difference.

Let me be clear that I don’t think adding confusion or ambiguity to the law is a good thing, and nor do I think it’s good for even a fig leaf for election officials to refuse to perform their duties to be put into law. But if one is most concerned with actual delays to the election result at the end of the day–and perhaps even more particularly, delays that a court might be inclined to endorse–I don’t think the new Georgia rule does it.