Certifying Georgia’s election? Not optional

Plus, Ron DeSantis threatens prosecution for political ads he disagrees with

Oct 18, 2024

You’ve heard a lot from us about why certification is “ministerial” and therefore not something election deniers can — legally speaking — succeed in blocking. This week, a key court in Georgia agreed. The Fulton County Superior Court declared, unambiguously, that a county election official’s duty to certify elections is mandatory under state law.

Per the Washington Post’s Amy Gardner, this represents a significant “defeat for allies of former president Donald Trump who sought to empower local leaders to hold up the outcome of the vote this year.”

Certification is likely to be ground zero for subversion efforts

It’s not an optional thing, whether or not to certify an election.

Like the scorekeeper in a basketball game, a certifying official’s only job is to faithfully and accurately record the tally, not to relitigate whether a foul was really a foul. (This metaphor goes further: There are also “referees” in our system of elections, mostly the courts, but that’s separate from certification.)

I asked Peter Simmons, who leads our work in Georgia, for his view:

This case was quite important simply because it — and others like it — sit at the heart of Donald Trump and his allies’ game plan to overturn election election results if they don’t go their way. They want to carve out space for their allies and supporters to blatantly throw out results they don’t like.
Thankfully, Judge McBurney’s ruling is a refreshing reminder that the rule of law categorically prevents that. Despite the repeated attempts of various actors in the Peach State to disrupt elections here, our guardrails, and therefore our democracy, have proven resilient.

In this case, we and others — on behalf of the Georgia NAACP, the People’s Agenda, and the Georgia League of Women Voters — filed an amicus brief explaining the context of the case in post-2020 attacks on certification, as well as how an adverse ruling would risk disproportionately disenfranchising Black voters. (If you’re so inclined, you can find that brief here.)

You can find Judge McBurney’s ruling here, but the last couple sentences summarize the main issue pretty well.

What’s at stake in this case, and others like it, is nothing short of who gets to pick the president. Election officials don’t get to decide — the voters do.

(If you want to read all about Georgia’s election certification processes and guardrails, boy do we have a four-page guide for you. Find it here. Other states here.)

Ron DeSantis takes aim at TV stations for airing a political ad

Last week, we sent a letter to Florida Governor Ron DeSantis and other state officials expressing alarm that Florida’s efforts to silence supporters of Amendment 4 — which would establish a right to abortion in the state — amount to an unconstitutional abuse of power targeting Floridians who disagree with him.

I asked Shalini Goel Agarwal, who leads much of our work in Florida, for a brief summary of what’s happening:

Earlier this month, the Florida Department of Health sent letters to TV stations threatening them with criminal prosecution for “sanitary nuisance” for airing an ad in support of Amendment 4.
Apart from the state’s dubious characterization of the ad as false, the unprecedented nature of the state threatening to criminally prosecute TV stations for airing a political ad speaks volumes to the real motive here: the state’s hostility to Amendment 4 and anyone who supports it. The move prompted the chair of the FCC to speak out: “Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”
Free speech organizations across the ideological spectrum and organizers of the Amendment 4 campaign have objected to what appears to be blatant viewpoint discrimination. Despite these warnings, reports suggest that Florida is instead gearing up for litigation targeting ads in support of Amendment 4. Rather than wait, though, the Amendment 4 campaign sued the state earlier this week, alleging First Amendment violations based on the coercive threat to prosecute media organizations.
The state’s threats against TV stations are only the latest in a series of attempts to abuse the powers of government to bully those who support Amendment 4. DeSantis’s Office of Election Crimes and Security recently launched a probe into the validity of signatures collected to put the question on the ballot in November, resulting in law enforcement knocking on the doors of petition-signers to question them after the state had already certified Amendment 4 for the ballot and months after the deadline for challenging these signatures. At midnight last Friday, these “election police” dropped a lengthy report belatedly suggesting that a few hundred petitions signed in support of the amendment “b[ore] clear indicia of fraud.” This is a curious assertion, given that there were over 100,000 more signatures than needed to qualify Amendment 4 for the ballot.

Yesterday, a Florida judge issued a temporary restraining order preventing Florida from further threatening to prosecute TV stations that air Amendment 4 ads. The order is pretty scathing:

“To keep it simple for the State of Florida: it’s the First Amendment, stupid.”

-Judge Mark Walker

Still, this is unlikely to be the end of the story, as the state previously: 1. sought unsuccessfully to have the amendment removed from the ballot; 2. appended a misleading financial impact statement to the ballot question; and 3. spent taxpayer dollars to mount a state-run advertising campaign against the amendment.

In a lot of ways, Florida remains ground zero for state-level experimentation with the authoritarian playbook. Governor DeSantis and others have waged viewpoint discrimination against a wide swath of speech in workplaces as well as colleges, schools, and school libraries, even though they keep losing in court.

When the “Election Integrity Unit” comes for you

The first step in any election subversion scheme is to spread lies about elections so that voters lose trust (see Amanda’s piece this morning).

Since 2020, we’ve seen state officials wield law enforcement powers to give those lies legitimacy, including by standing up specialized “election fraud” units with the supposed aim of uncovering election crimes. Never mind that those crimes don’t really exist.

Think of it as “snipe hunting,” but authoritarian.

The problem is this: Since the crimes those election units are supposed to be fighting aren’t real, they feel lots of pressure to do something. So they’ve mostly ensnared innocent people in wrongful investigations and prosecutions. The vast majority of those cases have quickly hit dead ends — the rule of law still holds — but they can still ruin people’s lives in the process.

One example: Michele White, a former election official in Virginia.

In 2022, White was falsely accused by Virginia Attorney General Jason Miyares of election crimes that carried penalties of up to 21 years in prison. The prosecution was timed with the launch of the “Election Integrity Unit,” and election deniers celebrated both. But the charges were so flimsy that they were eventually dropped.

The harm to White’s reputation and career, however, persists.

Yesterday, White filed suit against Virginia Attorney General Jason Miyares, former Assistant Attorney General Joshua N. Lief, and their investigators. Protect Democracy and our partners at Selendy Gay PLLC and The Erlich Law Office are representing her — because the stakes of this case go beyond the harm she experienced. White was, frankly, collateral damage in a much broader (and ongoing) assault on our elections.

“As election officials, we are super-critically important and civil servants,” Ms. White told The Washington Post. “We don’t deserve to be treated this way.”

How you can help

As always, all of this can feel overwhelming. The creep of despair is real. But there are real things that you — yes, you — can do to help make sure the 2024 election is free, fair, peaceful, and democratic. Ian Bassin and Justin Florence talked about some of those things a few weeks ago.

And this week, the great Anne Applebaum has a must-read in The Atlantic: A citizen’s guide to defending democracy (gift link).

It covers everything from how you can help out on Election Day to what information sources to follow to some big-picture wisdom. As she concludes:

Finally, don’t give up: There is always another day. Many of your fellow citizens also want to protect not just the electoral system but the Constitution itself. Start looking for them now, volunteer to help them, and make sure that they, and we, remain a democracy where power changes hands peacefully.

What else we’re tracking:

Trump has dramatically escalated his threats against his opponents, whom he labels “the enemy.” The New York Times’ Lisa Lerer and Michael Gold explain the danger and unprecedented nature of his pledges to seek retribution against anyone perceived as not supporting him.
Similarly, The Daily has a great episode on Trump’s pledges to wield the Department of Justice for political aims.
Bright Line Watch’s parallel surveys of political scientists and voters are always illuminating. The latest, published yesterday, is a sobering one. For example: “Just 7% of experts and 24% of the public think Trump will concede if he loses the election.”
The criminal trial of Arizona elections officials who refused to certify the 2022 election has been delayed until next year, reports the Guardian. Still, per Travis Bruner, “the fact that two supervisors who failed to certify results on time in the past are facing criminal charges does serve as a deterrent to other officials who might be considering obstructing the certification process in Arizona this year.”
Just Security has a new heat map of January 6th defendants. Sobering to see how the attacks were, for most of us, close to home.
When disaster strikes — like, say, two hurricanes shortly before Election Day — laws often give leaders flexibility to respond. Victoria Bullock explains what sort of things can be done to ensure elections still run smoothly, and how to assess and evaluate the decisions being made: How to judge election-related disaster responses.
Sam Levine has more details on the blitz legal strategy pursued by the RNC and its allies in swing states, consisting mostly of “zombie lawsuits” and groundwork to subvert the election if it doesn’t go their way. Says Ben Berwick: “The claims are garbage.”

In case you missed it, we have new analysis out this week going deep on the three-part plan to subvert the 2024 election: Deceive, Disrupt, Deny: 2024 election subversion strategies and how to defuse them.

My colleague Amanda Carpenter is walking through each of the three steps in a new miniseries, Subverting 2024.

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