Did Brad Raffensperger Break The Law During The 2020 Election?

The people who called the 2020 election the “most secure” in history have spent the past several years slandering as “election deniers” anyone who questions that election’s administration. But others remain frustrated by the many last-minute changes to election laws and processes that occurred shortly before that presidential contest — changes that in some cases may have been illegal.

In Georgia, the state election board unanimously adopted a rule change in May 2020, citing Covid-19. It allowed counties to open and scan absentee ballots up to three weeks before the November 2020 general election and several other elections in the 2020 election cycle.

Georgia Gov. Brian Kemp had declared a public health state of emergency on March 13, 2020, and called for a special session of the general assembly to ratify this action through a joint resolution, which the legislature approved. Then. in a move that remains controversial, Secretary of State Raffensperger announced on March 24, 2020, that he would be “mailing absentee ballot request forms to every Georgia voter,” a number he placed at 6.9 million.

Emergency Rule Approved

During a May 18, 2020, state election board meeting, Raffensperger’s General Counsel Ryan Germany argued in favor of the proposed rule change. He told the board that 1.4 million absentee ballot applications had been accepted, most had already been delivered, and 360,000 had already been returned to election officials.

“I think the last presidential preference primary, general primary, there was 36,000 total absentee vote-by-mail ballots cast in the entire election. So we’re already at well above that in orders of magnitude,” according to Germany.

Summarizing his argument for the emergency rule, Germany said, “With this many absentee ballots coming in, if there is going to be a way to get results any time quickly after the election, we think we need to allow counties to start processing these absentee ballots early.”

After a brief discussion by the board, the rule passed unanimously, and the meeting adjourned.

Violating the Law?

But the passage of that rule by the board, which was chaired by Raffensperger at the time, violated a Georgia statute requiring absentee ballots to be kept “safely, unopened, and stored,” a legal filing by Georgia voter Tim Adderholdt argues. Adderholdt cites OCGA 21-2-386, claiming that for 97 years, from 1924 until the law was amended in March 2021 by the passage of SB202, the law required that:

The board of registrars or absentee ballot clerk shall keep safely, unopened, and stored in a manner that will prevent tampering and unauthorized access all official absentee ballots received from absentee electors prior to the closing of the polls.

He also cites a June 26, 1980, opinion of the Georgia attorney general on the law, which confirmed that, stating:

This is in response to your recent request for my opinion on whether a board of registrars may open envelopes containing absentee ballots prior to the closing of the polls, in the interest of expediting the counting of absentee ballots.

In my opinion, the mandatory language of [the relevant statute] forecloses all discussion of the matter. The board of registrars must keep the envelopes safe and unopened until after the closing of the polls.

When asked for comment, Mike Hassinger, public information officer for the secretary of state responded: “We can’t comment on any pending litigation or legal matters.”

Adderholdt told me that if the board had relied on some unspecified emergency power when it adopted the rule, he had not yet heard that argument in any of the legal proceedings. Those began in December 2020, when Adderholdt filed a complaint in the superior court in Cherokee County, where he lives, to prevent the county from opening and scanning ballots ahead of the January 2021 U.S. Senate runoff.

Following the election, that court found that the county had “opened the ballots pursuant to State Election Board Emergency Rule 183-1-14-.09-.15,” which “expired January 5, 2021,” but dismissed the suit, stating the passage of SB 202 had rendered the case moot.

Armed with that finding of fact, Adderholdt, who for more than three years had represented himself, lodged his criminal complaint in magistrate court. When that court ruled that it did not have the “authority to decide” the legality of the rule, Adderholdt retained criminal attorney and candidate for the Georgia House of Representatives Catherine Bernard to appeal the decision to the Cherokee County Superior Court.

Voters Deserve to Know if the Law was Violated

Another Georgia attorney, Harry Macdougald, says the emergency powers given to Kemp in the name of Covid did not extend to the secretary of state or the state election board, and that:

As a basic matter of administrative law, regulations may not contradict the statutes under which they are promulgated. The rule-making authority granted by O.C.G.A. § 21-2-31(2) requires that the rules be consistent with law. The regulation for early opening and scanning of absentee ballots was plainly contrary to the statute governing the handling of absentee ballots and therefore clearly unlawful.

Adderholdt has accused Raffensperger of three criminal offenses: “Violation of oath by a public officer,” “false statements and writings,” and “criminal solicitation.” If probable cause of such violations were to be found, the court could theoretically grant an arrest warrant against the secretary of state.

Whatever the outcome of Adderholdt’s case, Georgia voters deserve to know whether Raffensperger, the state election board, and county boards of election violated the law in the 2020 election.

Mark Davis is president of Data Productions, Inc., and has been working with voter data since 1986. He has been qualified and admitted to testify as an expert witness on voter data analytics and residency issues in court cases involving disputed elections five times over the last 20 years. Follow him @MarkDavisGOP.