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Attempt by Georgia elections board to investigate secretary of state sparks legal debate

The GA Senate Ethics committee voted for a bill that would allow the State Election Board to investigate Secretary of State Brad Raffensperger, who claims is is unconstitutional.

An attempt to state that Georgia's appointed State Election Board has the legal power to investigate Republican Secretary of State Brad Raffensperger's handling of elections blossomed into a constitutional showdown Tuesday, with a lawyer for Raffensperger saying board members can't legally oversee him.

"There is no precedent for an unelected board of political appointees to have oversight over members of the executive branch," wrote Charlene McGowan, Raffensperger's general counsel. "Giving a board of unelected bureaucrats unchecked power over the state’s executive branch is a dangerous policy proposal."

But the Senate Ethics Committee disagreed, voting to advance Senate Bill 358. The proposal would remove Raffensperger from his nonvoting post on the board, allow the board to hire election investigators instead of solely relying on those working for Raffensperger and clearly give the board power to investigate the secretary of state.

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"We’re looking to empower the State Election Board so that they can have oversight responsibility and that there’s no confusion about where that oversight responsibility is vested," said Ethics Committee Chairman Max Burns, a Sylvania Republican.

It's only part of a push by Republican lawmakers for changes in how elections are run in Georgia.

Raffensperger's steadfast defense of Georgia's 2020 election, which Democratic President Joe Biden narrowly won, and his rejection of a call by Donald Trump to "find" more Republican votes made him a national figure. But Raffensperger is also a pariah among many Republican activists, who continue pushing Trump's false claims that Georgia's 2020 results were marred by fraud and that Trump was the rightful winner. And those activists continue to exert pressure on Republican Georgia lawmakers, who face election this year.

Activists have been pushing the State Election Board to investigate whether Raffensperger mishandled his audit of Fulton County's 2020 results, motivated by unproven claims of fraud. The board deadlocked 2-2 in December on whether it had such authority, and two board members asked lawmakers to clarify the law.

A lawyer who works for the legislature told committee members Tuesday it's "an open question under Georgia constitutional law" whether the State Election Board can regulate the secretary of state, but said the measure wouldn't affect Raffensperger's duties as outlined in the constitution. Supporters said they can go forward because most of Raffensperger's election responsibilities are outlined in state law, not the Georgia Constitution.

"They’re all in general law that the Georgia General Assembly has passed over the course of time in our state history," said Senate Majority Leader Steve Gooch, a Dahlonega Republican. "So we can change them, amend them in any way we want, through the legislative process."

McGowan warned that lawmakers are aiding people who want to overturn legitimate election results and could empower the board to obstruct certification of Georgia's 2024 presidential results.

"In fact, this proposal is being pushed by a small group of activists who continue to seek de-certification of the 2020 presidential election results, with the apparent intent of giving the State Election Board the ability to interfere with or even prevent the secretary from certifying the results of the 2024 presidential election," McGowan wrote.

Lawmakers also want Raffensperger to remove computer codes used to count most Georgia ballots, to move more quickly to patch voting machine software vulnerabilities, and include more ballot security features.

Neither Raffensperger nor any of his staff appeared during the Tuesday Senate committee meeting, a contrast with testimony Raffensperger deputy Gabriel Sterling gave to a House Governmental Affairs subcommittee Tuesday on other bills.

Sterling said Raffensperger supports a bill to stamp ballots with a watermark to ensure voters know they aren't forged. He also voiced support for a measure proposing more and stricter after-election audits to guarantee machines count ballots correctly. And Governmental Affairs Chairman John LaHood, a Valdosta Republican, agreed to amend a bill calling for high-resolution scans of ballots to be released for public inspection after Sterling said current scanners only produce lower-resolution images.

LaHood has also proposed a bill backed by Republican House Speaker Jon Burns that would mandate Georgia stop using QR codes to count ballots by July 1. Opponents say voters can’t be sure the computer codes match the choices printed on their ballots.

"Every one of our committee members said their citizens do not trust the QR code. So let’s go ahead and get rid of it," Sen Brandon Beach, an Alpharetta Republican, said recently.

Raffensperger told lawmakers last week that he supports a move to scan "human readable text," the names printed on ballots, to count votes. But he said it was impossible to make such a change before the November presidential election.

Eliminating QR codes would cost $15 million to buy more than 32,000 ballot printers statewide, Raffensperger’s office has estimated.

The House subcommittee didn't hear testimony Tuesday on the bill to ban QR codes. LaHood said afterwards he was hopeful Raffensperger's office might propose a new solution using optical character recognition software.

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