(Georgia Recorder) — The Fulton County Board of Commissioners violated a Georgia Superior Court judge’s order on Wednesday by failing to approve two nominees to the county election board in a case that involves accusations of election denialism and a clash between elected leaders’ responsibilities to follow the law or vote their conscience.
“We’re not complying with the court orders,” said Commissioner Bridget Thorne, a Republican who represents north Fulton. “We’ve had two hearings, one on Friday, one on Monday, forcing us to comply. And the decision today was to not comply.”
The vote came down 2-2 with three members of the commission not present.
Georgia Republican Party Chairman Josh McKoon called the development “outrageous” and called for the commissioners to be punished.
“A Petition for Contempt of Judge (David) Emerson’s Order should be filed immediately and I hope the Judge will consider not only a fine but jail time for the unlawful defiance of a lawful court order!” McKoon said in a statement.
Commissioner Dana Barrett, a Democrat whose district includes all of the Atlanta neighborhoods of Buckhead and parts of Midtown and the suburb of Sandy Springs, said she doesn’t know what could come next.
“It’s really hard to say. I don’t know what’s in the judge’s mind about that,” she said. “He can choose jail or fines, I think, and that’s really going to be up to him. I think the jail thing is a little bit confusing because when it is a civil charge like this, the whole idea is that you’d be in jail until you solved the problem – which, we can’t vote from jail – so I’m not sure if it really works in this case, but I think he has the ability to do it. So, making the vote, for me, I had to be prepared to face those consequences.”
The politics and policy behind the case
The Fulton County Registration and Elections Board consists of two members appointed by each major political party and a chair selected by the Board of Commissioners. Fulton County, which is home to Atlanta, is Georgia’s most populous county with more than 1 million residents, and among the likeliest to support Democratic candidates, though the northern suburbs are more conservative.
In May, the Fulton County Republican Party nominated incumbent board member Julie Adams and newcomer Jason Frazier, but the commissioners declined, citing concerns about their past actions.
Adams refused to certify the 2024 results in Fulton’s presidential preference primary and filed a failed lawsuit against the county, arguing that board members have the option to refuse to certify election results if they have concerns. In a ruling similar to the one now at issue with the commission, judges said election superintendents’ roles are actually to certify the results and not to investigate or veto them.
Democrats say Frazier challenged thousands of Fulton County voter registrations.
Speaking at the May meeting, Commissioner Marvin Arrington, a Democrat whose district includes parts of Atlanta and south Fulton County, said he could not approve the two because of their politics.
“The problem we have in this country is the far right and the far left,” he said. “The answers and the solutions are in the middle. And I want to applaud the Democratic Party for nominating people that are in the center and not nominating people that are in the far left. And I think the Republican Party ought to take a look at their people and not nominate people that are on the far right and nominate people that are in the center. That’s where all of our answers and our solutions are. There is no way I can vote to support either of these people. But if y’all present some people that are in the center, they can get approved.”
Arrington was not present for Wednesday’s vote.
Obligations of the word ‘shall’
The county GOP took the commissioners to court, where the legal debate centered around the meaning of the word “shall” in state law.
The law says the members of the board “shall” appoint two members appointed by each major party, while the chair is appointed by the board of commissioners.
The county GOP said that “shall” means the board’s job is to approve the people nominated by the parties as long as they meet basic required standards like living in the county, being an elector, and not being an elected official.
Democrats on the board said the word “shall” leaves more wiggle room – that the power to appoint also includes the power to reject.
“I am very willing to appoint from nominees that are put forth by the Republican Party of Fulton County,” Barrett said. “But not everybody gets a pass. What if they put up a murderer? I’m not going to appoint a murderer. So there has to be some discretion on my part to say no to particular nominees, but still only to choose from their nominees.”
Superior Court Judge David Emerson agreed with the Republican Party, issuing an Aug. 3 order calling on the commissioners to approve Adams and Frazier.
“There is nothing in the statute to support the BOC theory that the county commissioners can veto the chairperson’s nominees other than for failure of the nominee to meet the two qualifications and one restriction,” Emerson wrote.
“The General Assembly placed the discretion in the county executive committee chairperson. It is up to the Fulton County Commission to follow the law and honor that person’s nominations,” he added.
They didn’t do that on Wednesday, and Commissioner Mo Ivory, a Democrat who represents Atlanta and parts south, indicated that she’s not likely to change her stance.
“No one should force an elected official or any voter to cast a particular vote. We’re opening up a very scary door to do that, no matter where your politics lies. Our residents deserve appointees who are unquestionably committed to fairness, transparency, and ethical standards in our election administration. This is not about personalities or politics, although that’s what grabs the headlines. It is about ensuring that the board of registrations and elections in Fulton County is held to the highest level of accountability and that our elections are fair.”
The Board of Commissioners has filed an appeal in the lawsuit.
What about next week’s election?
A special election to replace former state Sen. Brandon Beach, a Republican who stepped down to serve as U.S. Treasurer under President Donald Trump, is scheduled for Tuesday. The district includes part of north Fulton County and much of neighboring Cherokee County.
Thorne said that race can be certified even if the situation is still unsettled next week.
“Julie Adams continues to serve on the board until they appoint someone else, and so (Republicans) will just only have one member on that board to certify the elections, look over the results, follow that,” she said. “They’ve just got to get a majority of the board. So it’s supposed to be a five-member board, so if they get three votes, they’ll go ahead and certify the election.”
Thorne said Adams will be forced to vote yes on the winner even if she has reservations because of a rule similar to the one she wants the Democrats on the commission to follow.
“Under her lawsuit, they told her she ‘shall’ – just like here, she ‘shall’ certify – on Monday at 5 o’clock, and she can’t vote no,” Thorne said. “So they should have four votes to certify, no matter what.”
