August 14, 2024 

Honorable John Fervier 
Chairman 
Georgia State Board of Elections 
2 MLK Jr. Drive 
Suite 802 Floyd West Tower 
Atlanta, Georgia 30334 

Re: Comment in support of proposed rule 183-1-12-.12 

Dear Chairman Fervier and Members of the Board of Elections: 

My name is Hans A. von Spakovsky and I am submitting a comment in favor of the Board of Elections adopting proposed rule 183-1-12-.12.  I understand that the Board may be holding a virtual hearing on Monday, August 19.  I request the opportunity to briefly address the Board as a witness. 

I am a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.  However, the views I express here are my own and do not reflect an institutional position for The Heritage Foundation or its board of trustees.   

By way of background, prior to joining The Heritage Foundation, I was a Commissioner on the U.S. Federal Election Commission for two years (2006-2007).  Before that, I spent four years at the U.S. Department of Justice as a career civil service lawyer in the Civil Rights Division, including as Counsel to the Assistant Attorney General for Civil Rights, coordinating the enforcement of federal voting rights laws. 

I am a former member of the Presidential Advisory Commission on Election Integrity (2017-2018) and was a member of the first Board of Advisors of the U.S. Election Assistance Commission.  In Virginia, I served for three years as the Vice Chairman of the Fairfax County Electoral Board, which administers elections in the largest county in that state.  I formerly served on the Virginia Advisory Board to the U.S. Commission on Civil Rights.   

Relevant to my comments on the proposed Georgia rule, I also served for five years on the Fulton County Board of Registration and Elections from 1996 to 2001 and am personally and professionally very familiar with the responsibilities and duties of Georgia election officials. 

The Heritage Foundation is concerned with ensuring the security of the voter registration and election process so that every eligible citizen is able to register and vote with confidence in the administration and integrity of our elections, including the error-free tabulation of all votes cast in an election.  The citizen members of county boards of elections – as I once was in Fulton County – are key officials in that process.  Under Georgia law, those county boards act as the superintendents of their county elections with a fiduciary duty to administer their elections in compliance with all applicable state and federal laws and to correct any errors, mistakes, or discrepancies that may occur.  

One of the key requirements for an accurate election is a reconciliation of the number of votes cast by registered, eligible voters with the number of actual ballots tabulated by election officials.  This duty of reconciliation is a requirement of state law, as outlined in Georgia Code § 21-2-493(b).  If those numbers do not match, that is “deemed a discrepancy and palpable error,” which in turn triggers a requirement under this statutory provision that the discrepancy “shall be investigated.”  Moreover, the statute requires that no “votes shall be recorded” until that investigation has determined the source of the error and corrected it. 

The proposed rule simply sets out commonsense procedures that county election boards should follow in implementing the statutory requirements that must be complied with before county boards can complete the tabulation of ballots cast and certify the results of the election.  That includes matching the number of voters to ballots cast through all methods of voting, from in-person to absentee to early voting, and correcting any duplications of the same ballot that were counted more than once. 

As someone who helped administer multiple elections in the largest county in Georgia on a bipartisan basis, I am disturbed that anyone would oppose this rule.  Every type of retail and commercial establishment, such as banks, restaurants, and other stores have to reconcile their receipts and cash/credit, which is no different than reconciling the number of voters with the votes cast.  Elections are even more important because they are the fundamental building block of our democratic republic. 

Anyone who argues that members of county election boards have no authority to administer elections and that their positions are “ministerial only” is ignoring the statutory and fiduciary duties imposed on the board members.   

Ensuring reconciliation is essential to maintaining public confidence in the integrity of our elections.  Nothing could be more damaging to that public confidence than the certification of inaccurate, error-ridden results.  Such a lack of confidence in the election process would inevitably lead to disenfranchisement as voters stay home because they do not trust their election officials and do not trust the results of elections. 

The State Board of Elections has a fiduciary duty to the voters of the State of Georgia to promulgate rules and regulations that ensure that county boards of elections do their job and carry out their sworn duties to administer fair, accurate, and honest elections.  It is a matter of public trust. 

Proposed Rule 183-1-12-.12 should be approved.[REF]

Sincerely, 
Hans A. von Spakovsky