There are three offices in Georgia with emergency powers that can affect the vote counting and election certification processes: the Secretary of State, the State Election Board, and Election Superintendents (which are usually county Boards of Elections). The Secretary of State is the chief election officer in Georgia. He or she may postpone elements of the election process in states of emergency or natural disaster. The State Election Board is the overarching entity charged with adopting rules and regulations pertaining to election law, as well as making initial findings and determinations for when those rules and other laws are violated. The emergency powers of an Election Superintendent are limited. The one major power that the Election Superintendent has is to move a polling place in response to an emergency.
If the Governor or a federal agency “declares that a state of emergency or disaster exists,” the Secretary of State has the authority “to postpone or extend” the period for qualifying for “municipal, county, or state-wide office.” O.C.G.A. § 21-2-50.1. They can also “postpone the date of any primary, special primary, election, or special election in the affected area.” O.C.G.A. § 21-2-50.1. This power does not appear to extend to elections for seats in the U.S. Senate or U.S. House of Representatives. See 2 U.S.C.S. § 9; see also 2 U.S.C.S. § 1.
If an “emergency or unavoidable event” makes a polling place unavailable for use within 10 days of an election, the Election Superintendent may move the polling location without providing notice to the public as would normally be required. O.C.G.A. § 21-2-265(a). To use this power, the Election Superintendent must post a notice on the previous polling place on Election Day and for at least seven days before. O.C.G.A. § 21-2-265(a). They must also post this notice in “at least three other places in the immediate vicinity” of that location. O.C.G.A. § 21-2-265(a). That notice must include the location to which the polling place has been moved, and must provide directions as to how voters can get there. O.C.G.A. § 21-2-265(a). Additionally, at least one of these notices must be at least four feet by four feet in size. O.C.G.A. § 21-2-265(a).
The State Election Board has a statutorily broad set of duties when it comes to elections. It must “promulgate rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials, as well as the legality and purity in all … elections.” O.C.G.A. § 21-2-31(1). It must perform this duty in a way that is “consistent with law, as will be conducive to the fair, legal, and orderly conduct of … elections.” O.C.G.A. § 21-2-31(2). The list goes on, but finally, the State Election Board has a duty to “take such other action, consistent with law, as the board may determine to be conducive to the fair, legal, and orderly conduct of primaries and elections.” O.C.G.A. § 21-2-31(10).
After “measures passed (by the State Election Board) during the pandemic to allow more access to voting by mail or drop box may have played some role” in “Democratic victories in 2020,” the Georgia General Assembly enacted legislation limiting the State Election Board’s authority to adopt emergency rules and regulations. Fowler, “Ga. Has Added Voting Restrictions.” [1] Since the enactment of the Election Integrity Act of 2021, the State Election Board’s authority to adopt emergency rules and regulations is limited to “circumstances of imminent peril to public health, safety, or welfare.” O.C.G.A. § 21-2-35(a).
Prior to the State Election Board adopting an emergency rule, it must provide notice to the Governor, Lieutenant Governor, Speaker of the House of Representatives, the chairperson of the standing committees of each house of the General Assembly tasked with election matters, the Secretary of State, legislative counsel, and the chief executive officer of each political party. O.C.G.A. § 21-2-35(a)(2). That notice must include a description of the nature of the emergency “and the manner in which such emergency represents an imminent peril to public health, safety, or welfare.” O.C.G.A. § 21-2-35(a)(3).
The Election Integrity Act of 2021 made additional changes to the Georgia Administrative Procedures Act specific to the State Election Board that limit its ability to unilaterally enact emergency rules or regulations. Upon adopting any emergency rule, “a majority of the State Election Board [must] certify in writing that such emergency rule or regulation was made in strict compliance” with statutory processes. O.C.G.A. § 21-2-35(b). Next, the State Election Board must submit any emergency rules adopted to the Judiciary Committees of both chambers of the Georgia General Assembly at least 20 days prior to taking effect. [2] The Judiciary Committees of both the House of Representatives and the Senate have 10 days from the receipt of such rule to suspend the emergency rule by a majority vote in either committee. O.C.G.A. § 50-3-4(b). Rules that survive this process can only remain in effect for 120 days unless it is pursuant to an executive order declaring a state of emergency. O.C.G.A. § 50-13-4(b). That window of time would require an emergency rule to be re-adopted after a primary election to be in effect for the general election.
The governor is the chief executive in the State of Georgia. Ga. Const. Art. V, § II, Para. I. They can declare states of emergency and natural disasters. O.C.G.A. § 38-3-51(a). These declarations can affect the duration of emergency rules adopted by the State Election Board. See O.C.G.A. § 50-13-4(b) (noting that if an emergency rule is adopted “pursuant to discharge of responsibility under an executive order declaring a state of emergency or disaster,” the rule can remain in effect for the “duration of the emergency or disaster and for a period of not more than 120 days” after). Finally, the Governor is required to call for an election to fill vacancies that occur in the Georgia Senate or Georgia House of Representatives. Ga. Const. Art. V, § II, Para. V.