The recently passed legislation in Georgia on voting, the "Election Integrity Act of 2021," does not solve Georgia's biggest problem from the 2020 election and, even worse, it makes a similar issue more difficult to prevent in the future.
This problem was the consent decree that Georgia Secretary of State Brad Raffensperger, along with the other parties in the case (the Democratic Party of Georgia, Inc; the Democratic Senatorial Campaign Committee; the Democratic Congressional Campaign Committee; and members of the State Elections Board), entered into on March 6, 2020.
The Election Integrity Act of 2021 failed to ban future consent decrees.
Even worse, it established consent decrees as a matter of law.
In the consent decree, the secretary of state, members of the state elections board and the Democrats deleted the provision of Georgia's law (See: O.C.G.A. § 21-2-386(a)(1)(C)) which established the procedure to verify the signatures on absentee ballots.
They replaced it with their own method (Paragraph 3(a)) of verifying signatures on absentee ballots. As a result, the consent decree ultimately impacted the number of ballots which counted in the 2020 Election.
Republicans (such as the Georgia Republican Party, Republican National Committee, or individual candidates) should have challenged the Consent Decree before the 2020 Election, but they did not do so.
After the 2020 Election, parties filed suit regarding the consent decree based on constitutional and separation of powers issues, but the courts did not rule on the merits of these challenges.
The problems with the Consent Decree were three-fold.
First, it violated Article 1, Section 4 of the U.S. Constitution which specifically states that administering elections is the function of the Legislative Branch. Because the Secretary of State is part of the Executive Branch, that office is barred from creating or changing election rules.
The second issue is that the consent decree violated the separation of powers.
The consent decree changed a provision that the legislature (Georgia House and Senate) approved via a vote.
With the consent decree, the secretary of state (the Executive Branch) eliminated the legislature's choice in the law.
Third, the secretary of state eliminated the governor's role in the law-making process. The governor had originally signed the elections bill after the legislature approved it. The secretary of state eliminated the governor from the law-making process by changing the law.
Legislative action on future consent decrees was critical because the courts did not prohibit them.
A law outlawing consent decrees would have deterred the secretary of state from entering into future consent decrees.
If the secretary of state did so, a court would be more likely to hear the case because it would have been based on a law specifically addressing consent decrees rather than constitutional or separation of powers grounds.
The Election Integrity Act of 2021 did not prohibit future consent decrees.
Even worse, that Act essentially codified the practice of Consent Decrees.
The law (page 17, lines 406-410) now requires that the secretary of state and state elections board give five days prior notice to the House or Senate committees on the judiciary prior to entering a proposed consent decree.
The law does not state if the committees have any review power on the consent decree or if they can stop it.
By including the notice requirement, the Election Integrity Act of 2021 provides a procedure for consent decrees and, in essence, implies that consent decrees are lawful so long as the procedure is followed.
Constitutional and separation of powers arguments, therefore, are diminished because the Georgia legislative and executive Branches have agreed to the use of consent decrees by passing the Election Integrity Act of 2021.
Because the Election Integrity Act of 2021 does not prevent consent decrees regarding election laws, it essentially does not matter what the Election Integrity Act of 2021, or future legislation on voting, states. The secretary of state and state elections board would merely be able to change the law via a consent decree. For instance, if a future lawsuit against Georgia's voting law took place, a consent decree could ban voter ID requirements or mandate voting by mobile device if the parties agreed to it.
This situation is antithetical to the American (and Georgian) system of government and separation of powers.
Laws are passed when the legislature approves a bill and the chief executive (president/governor) signs it.
The system does not grant one person (such as the secretary of state) the right to unilaterally create the law.
The portion of the Election Integrity Act of 2021 concerning consent decrees must be changed. Private individuals, the Georgia Republican Party, the Republican National Committee (RNC), etc. should challenge it in court.
Alternatively, the law should be changed via legislation. Democrats should be concerned with the Election Integrity Act of 2021 as well because it is always possible that a secretary of state could change the election law in a manner which hurts Democratic candidates.
Michael B. Abramson is a practicing attorney. He is also an adviser with the National Diversity Coalition for Trump. He is the host of the "Advancing the Agenda" podcast and the author of "A Playbook for Taking Back America: Lessons from the 2012 Presidential Election." Follow him on his website and Twitter, @mbabramson. Read Michael B. Abramson's Reports — More Here.
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