The Path to Destroy American Democracy Runs Through Georgia | Laurence H Tribe and Dennis Aftergut

TThe latest election-protection lawsuit filed in Georgia this week goes straight to the heart of the country’s fight over the survival of the most basic institutions of freedom: our vote and the rule of law. The lawsuit is also vital to the more immediate outcome of this election, and whether Donald Trump can find a way to win by any means necessary.

Trump and his Maga allies want to permanently dismantle the architecture of government established by our founding fathers 235 years ago. The path to that goal this November runs through Georgia, a key battleground state where overturning a Kamala Harris election victory would be vital to Trump’s return to power. Trump and his minions will do anything to win. That includes failing to certify the actual vote of the people.

They are trying to convert a system of automatic certification, as designed in our Constitution and as it has always been, into a system where power revolves around the people they have appointed – in other words, a government not of laws, but of people. If they can refuse to certify elections, they don’t have to worry about it in the future.

That is the path to power without popular constraints. To achieve it, Trump and his Project 2025 architects must abolish the institutional constraints that the Constitution and state law place on a future president’s willingness to rule by force. Trumpism’s path to the White House is paved with the bricks of election theft.

The lawsuit, filed on behalf of eight Georgia citizens and the Democratic Party against the Georgia State Board of Elections (SEB), gets straight to the point:

“Three months before the November 5 general election, Georgia’s State Election Board (“SEB”) attempted to upend the required process for certifying election results. Through regulation, SEB attempted to turn the simple and mandatory act of certification into a broad license for individual board members to hunt for alleged election irregularities of any kind, potentially delaying certification and crowding out lengthy (and court-supervised) processes for addressing fraud.”

The board — whose 3-2 Magague majority Trump recently praised as “pit bulls” — is a key agency for making election rules in Georgia. The new lawsuit challenges two of the board’s recently implemented “rules.”

The first rule requires local election officials to conduct a “reasonable investigation” of election results before certifying them. The term “reasonable investigation” is dangerously stretched, and creates an opening for authoritarians to do whatever they want. No sane court would ever condone such a system, where unelected appointees could issue open-ended election rules that made certification discretionary, especially without such a directive from the Georgia legislature to end democracy.

The second rule allows individual county board members to “examine all election-related documentation created during the conduct of the election prior to the certification of the results.” The scope for delaying certification is unlimited by requiring large and small documents to be produced before certification.

One apparent goal is to circumvent federal and state law that requires the states’ votes to be certified in time for Congress, on January 6, 2025, to bless the election results. If enough states’ certifications are blocked so that there is no Electoral College majority on January 6, the presidential election will move to the House, under the 12th Amendment. There, elections are constitutionally decided by one vote per state delegation. Because of gerrymandering and the way the House is structured, Republicans have had a majority of state delegations for years. In November, Trump, with their votes, would become president regardless of whether he won the Electoral College or a majority of the popular vote.

This is the formula for American carnage that Trump and Vladimir Putin, the Russian president, would pray for if prayer were in their vocabulary. The strategy in Georgia, which is being applied in other states, did not emerge by accident. Maga World legal operatives like Cleta Mitchell, chair of the so-called “Election Integrity Network,” learned from their 2020 defeat, when the Georgia state board was not packed with a majority of election deniers, and when parallel conspiracy moles were not buried in local election offices.

According to ProPublica, the first draft of one of the two rules at the center of the new lawsuit was written in secret “at the request of a regional leader of the Election Integrity Network.” Recall that Mitchell was with Trump during the infamous phone call in which then-President Brad Raffensperger, Georgia’s Republican secretary of state, pressured him to “find” 11,780 votes to overturn Joe Biden’s victory. In 2020, Raffensperger heroically refused Trump’s recorded phone request to “find 11,780 votes,” one more than his margin of defeat to Biden.

And then there’s Steve Bannon, who has been quiet lately because he’s serving a four-month prison sentence for contempt of Congress. Just after January 6th, he put out his Maga-world call on his War Room podcast to take over local election offices “village by village.”

Step by step, these conspirators and their allies have been working behind the scenes to solidify their January 6, 2025 plan to steal the election through abuse of the law, just like they did in 2020. If that fails for them, they have violence as Plan B. We’ve seen this movie before.

Under Plan A, Trump’s Maga team has led the takeover of a limited but growing number of local election offices in swing states, Rolling Stone magazine reports. They’ve conducted trial runs of not certifying local elections in states from Arizona to Michigan to Georgia, with no success so far, until a more organized, state-by-state effort begins in the week after a potential Trump loss this fall.

Meanwhile, the plaintiffs in Monday’s lawsuit are privy to the Maga Board of Elections majority’s shenanigans. The lawsuit’s legal premise is simple. Georgia state law imposes a mandatory duty on local election “superintendents” — a term that includes both individual county election administrators and local boards of elections — to certify their county election by the first Monday after the Tuesday election. There is no discretion, as Georgia courts have held for a century.

The law also says that “if any error or fraud is discovered, the superintendent shall honestly calculate and certify the votes, regardless of any fraudulent or erroneous results presented to him or her.” There is a legal process for challenging election results – in court after certification.

Monday’s lawsuit also attacks the board for failing to meet “basic minimum procedural requirements for the adoption, amendment, or repeal of administrative rules.” Specifically, the lawsuit alleges that in adopting the rules, the board failed to “provide a concise statement of the principal reasons for and against their adoption” and failed to “fully consider all written and oral submissions regarding the proposed rule.”

This is all black-letter law. The board was made aware of the procedural flaws before the rules were adopted and simply ignored them. This case looks like a slam-dunk winner, at least as long as Georgia courts remain worthy of their robes.

The good news is that Democrats may not be completely alone. On Monday, Republican Gov. Brian Kemp formally asked Georgia’s attorney general to fire the three board members who lawlessly approved the new rules. In 2020, Kemp rebuffed Trump’s efforts to overturn Biden’s election victory in Georgia. Under the Electoral Count Reform Act of 2022, he is the one who “certifies” the winner of the state’s Electoral College and sends it to Congress.

In addition, Raffensperger has criticized the three Maga members for trying to force through a “last-minute” rule change. He remains the one who, under Georgia law, certifies the vote for the governor’s “ascertainment.”

Kemp and Raffensperger seem to be the rarest of breeds among today’s Republicans who are committed to honest vote counting. That doesn’t have to be the case. We could have two parties competing as they once did, on policy. It will likely take a fourth national defeat—after 2018, 2020, and 2022—to put a crimp in the Trumpist strategy of winning the Electoral College via losing the national popular vote.

“Defend Institutions” is the second of 20 lessons in On Tyranny, Yale historian Timothy Snyder’s updated and illustrated 2021 pamphlet on the struggle against totalitarianism. We the people can defend our institutions and send Trump to defeat through a massive get-out-the-vote effort. Before the vote even begins, only one party (with a few isolated exceptions) will defend the rule of law and our votes. Monday’s powerful lawsuit to unmask the Georgia Election Board’s Maga majority is a shining example.

• Laurence H Tribe is a professor at Carl M Loeb University and professor of constitutional law at Harvard Law School

• Dennis Aftergut is a former federal prosecutor, currently a consultant to Lawyers Defending American Democracy