Patricia Murphy: Who is in charge of Georgia's State Election Board? Nobody, it seems

A flurry of last-minute election rule changes. A shoutout from former President Donald Trump from his rally stage. A sweeping mandate for Georgia counties to hand-count more than one million ballots on election night.

If you’ve been watching the new Trump-aligned majority on the State Election Board recently, you might be asking yourself who in the world is in charge of this circus. But by Republican leaders’ own telling, nobody in the state has authority over the 3-2 majority of the board, short of a court order.

In the words of one Republican who asked to remain anonymous, “The inmates are running the asylum.”

It’s hard to believe that, with all the eyes on Georgia’s elections after Trump’s 2020 loss here, there is no single person in the state who can intervene if the State Election Board goes rogue, assuming it hasn’t already. But that is exactly what Republicans described when I reached out to ask who could step in if the board continues its streak of unprecedented actions and rule changes through and after Election Day.

Gov. Brian Kemp’s office said he’s not in charge of the board and, as of now, has no authority over it or its actions. “The State Election Board is an independent board,” a Kemp spokesman told me.

Georgia Attorney General Chris Carr’s office said he doesn’t have power over the board, either, since he is the official counsel for the five-member group.

Secretary of State Brad Raffensperger is definitely not in charge of the board. In fact, the Republican-controlled General Assembly made sure of that when they passed Senate Bill 202, the election law overhaul, in the aftermath of Trump’s 2020 election loss and removed him from the board entirely.

Raffensperger’s office now provides only administrative support for the board, including hosting its website, a spokesman said.

How about the new chairman of the board, John Fervier, whom Kemp appointed? Even though he’s technically the board’s nonpartisan leader, Fervier and the board’s only Democrat, Sarah Tindall Ghazal, have been consistently outvoted by the three far-right members of the board who Trump praised as “pitbulls for … victory” — Dr. Janice Johnston, former GOP state Sen. Rick Jeffares and Janelle King, a conservative pundit who appears frequently on Fox News.

Moving down the chain of command, House Speaker Jon Burns’ office told me he has no authority over the board. And even though he appointed King to her post earlier this year, he does not have the power to remove her unilaterally. The same is true for Lt. Gov. Burt Jones, who appointed Jeffares, but cannot remove him, even if wanted to, without a majority vote of the state Senate.

Being officially powerless over the election board helps Kemp, in a way, since it means he would not have the authority to step in and stop the three Republicans passing the rules that Trump supporters around the state have been pushing for.

But Cathy Wollard, the former chair of the Fulton County Board of Elections, pointed to a separate state law that gives Kemp the authority to trigger an investigation of any state appointed board when formal charges are filed against it. Wollard has written to Kemp formally complaining about the board’s recent actions, but AG Carr advised Kemp that, in his opinion, Wollard’s and others’ formal complaints do not amount to formal charges, even though “formal charges” are not defined in the law.

“I would submit that there is no way that the General Assembly meant boards and authorities have absolutely no oversight, and the ability to run amok, as this one has,” Wollard said. “It is the governor’s responsibility, period.”

Kemp’s office responded that, “Per the Attorney General’s opinion, there have been no formal charges filed that would trigger the governor’s statutory authority to take action on these matters. As he has done in the past, the governor will follow the laws and the constitution of our state.”

The back-and-forth is like watching a game of legal pingpong, except this is not a game. We’re talking about significant changes to how counties are being told to conduct their elections, when the election is less than six weeks away.

Without the governor intervening, state Democrats have taken matters into their own hands and filed suit to stop two of the board’s most sweeping new rules from going into effect. The ACLU of Georgia has filed an amicus brief in that lawsuit.

Andrea Young, executive director of ACLU Georgia, said the fury over the board was entirely predictable when SB 202 passed and the newest members were appointed.

“We certainly frequently disagree with the Secretary of State, but he is elected by Georgia voters and these people are unelected,” she said. “They seem to be very partisan and political and have hijacked the state election board for partisan purposes, which is not appropriate in our democracy.”

Plenty of Republicans agree. Eric Johnson, a former Republican state Senate leader, called the latest rules from the board “onerous” and said its actions have crossed from rule making into legislating, which only lawmakers should do.

“I trust the secretary of state and what he has done to train and implement the laws of the state. And of course, Gov. Kemp was a former secretary of state, so both of them have a lot of experience in this field,” he said. “We ought to trust them as elected Republicans to run the election as fairly and as quickly as they can.”

As it stands now, the only thing standing between the State Election Board’s flurry of new rules and Election Day is Fulton Superior Court Judge Robert McBurney, who oversaw the special purpose grand jury proceedings against Trump and others after the 2020 elections. He has now been assigned to the Democrats’ lawsuit to block the board rules.

When McBurney set a quick trial date of Oct. 1 for the case, he noted the new rules will directly impact local election boards and their efforts to manage elections, including the presidential contest, that are less than six weeks away. “Time is of the essence,” McBurney wrote in his order.

Finally, maybe, someone may be in charge.

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