CopyCited 5 times | Published | Supreme Court of Georgia | Jun 10, 2025
...Initially, the General
Assembly gave the SEB the authority to “formulate, adopt and
promulgate such rules and regulations, consistent with law, as will
be conducive to the fair, legal and orderly conduct of elections[.]” See
id., p. 35, § 1 (now OCGA §
21-2-31 (2)). Over time, the General
Assembly gave the SEB additional rulemaking authority. In
addition to the rulemaking authority under OCGA §
21-2-31 (2), the
General Assembly has since given the SEB the authority to, among
other things, define standards as to “what constitutes a vote and
what will be counted as a vote,” OCGA §
21-2-31 (7),1 and the
authority “[t]o promulgate rules and regulations so as to obtain
uniformity in the practices and proceedings of superintendents,
registrars, deputy registrars, poll officers, and other officials, as well
1 See Ga. L. 2003, p. 519, § 2.
4
as the legality and purity in all primaries and elections[,]” OCGA §
21-2-31 (1).2 These three sources of rulemaking authority are
implicated in this case.3
In August 2024, the SEB adopted several rules in advance of
the November 2024 general election....
...V (b) (1) (“Paragraph V”) (waiving sovereign
2 See Ga. L. 2008, p. 782, § 2.
3 The Georgia Code also provides that the SEB may “take such other
action, consistent with law, as the board may determine to be conducive to the
fair, legal, and orderly conduct of primaries and elections.” OCGA §
21-2-31
(10)....
...They argue that under existing precedent, the
General Assembly’s delegation of legislative power is
constitutionally tolerable so long as it comes with sufficient
guidelines, and that the statutes authorizing the SEB to promulgate
rules (OCGA §
21-2-31 (1), (2), and (7)) meet this requirement....
...statutory authorization to promulgate rules “so as to obtain
uniformity in the practices and proceedings of superintendents,
registrars, deputy registrars, poll officers, and other officials, as well
as the legality and purity in all primaries and elections[,]” OCGA §
21-2-31 (1), “consistent with law, as will be conducive to the fair,
legal, and orderly conduct of primaries and elections[,]” OCGA § 21-
2-31 (2), and “to define uniform and nondiscriminatory standards
67
concerning what constitutes a vote and what will be counted as a
vote for each category of voting system used in this state[,]” OCGA
§
21-2-31 (7).
The Appellants argue that this statutory grant of authority
authorized the SEB’s exercise of rulemaking power under the
reasoning of DOT....
...that takings be “reasonable, necessary, and in the public interest” is
sufficient, the SEB’s statutory authority to promulgate rules to
promote “uniform[ ],” “legal,” “pur[e],” “fair,” and “orderly” elections
is also sufficient. See id.; OCGA §
21-2-31 (1), (2), (7)....
....
Thus, step two in the nondelegation framework is not in dispute.
76
necessary implication, the powers exercised by the executive branch
agency. See, e.g., Bentley,
152 Ga. at 838. The Appellants point to
OCGA §
21-2-31 (1), (2), (7), which provides the SEB with general
rulemaking authority, as evidence that the specific rules at issue
here were authorized by the Election Code. On its face, this
statutory text would seem to support the Appellants’ argument.
OCGA §
21-2-31 (1), for example, allows the SEB to promulgate
rules “so as to obtain uniformity” in the practices of local election
officials....
...text, resting on the reasonable presumption that the legislature did
not intend the alternative which raises serious constitutional
doubts.” (citation and punctuation omitted)).
A reasonable limiting construction does exist. In several places
under OCGA §
21-2-31, which outlines the general duties of the SEB
in addition to providing for its rulemaking authority, the legislature
provided that the SEB is to act or promulgate rules “consistent with
law.” See OCGA §
21-2-31 (2), (10)....
...“reasonable inquiry” into the validity of the results is incompatible
with the clear requirements of OCGA §
21-2-493. And the rule
cannot support “uniformity” in election proceedings if it does not
define the steps necessary to conduct a “reasonable inquiry.” See
OCGA §
21-2-31 (1)....
...The Appellants argue that the
signature and photo identification requirements ensure that voters
comply with OCGA §
21-2-385 (a) in furtherance of the SEB’s
authority to “promulgate rules and regulations” to ensure “legality
and purity” in all elections. See OCGA §
21-2-31 (1)....
...requirements that the statute itself imposes.
The SEB is authorized to promulgate rules “to obtain
uniformity in the practices and proceedings” of election officials,
with the important caveat that the rules must be “consistent with”
the existing statutory scheme. OCGA §
21-2-31 (1), (2)....
Published | Supreme Court of Georgia | Jun 10, 2025
...Initially, the General
Assembly gave the SEB the authority to “formulate, adopt, and
promulgate such rules and regulations, consistent with law, as will
be conducive to the fair, legal, and orderly conduct of primaries and
elections[.]” See id., p. 35, § 1 (now OCGA §
21-2-31 (2)). Over time,
the General Assembly gave the SEB additional rulemaking
authority. In addition to the rulemaking authority under OCGA §
21-2-31 (2), the General Assembly has since given the SEB the
authority to, among other things, define standards as to “what
constitutes a vote and what votes will be counted as a vote,” OCGA
§
21-2-31 (7),1 and the authority “[t]o promulgate rules and
1 See Ga....
...519, § 2.
4
regulations so as to obtain uniformity in the practices and
proceedings of superintendents, registrars, deputy registrars, poll
officers, and other officials, as well as the legality and purity in all
primaries and elections[,]” OCGA §
21-2-31 (1).2 These three sources
of rulemaking authority are implicated in this case.3
In August 2024, the SEB adopted several rules in advance of
the November 2024 general election....
...2 See Ga. L. 2008, p. 782, § 2.
3 The Georgia Code also provides that the SEB may “take such other
action, consistent with law, as the board may determine to be conducive to the
fair, legal, and orderly conduct of primaries and elections.” OCGA §
21-2-31
(10)....
...They argue that under existing precedent, the
General Assembly’s delegation of legislative power is
constitutionally tolerable so long as it comes with sufficient
guidelines, and that the statutes authorizing the SEB to promulgate
rules (OCGA §
21-2-31 (1), (2), and (7)) meet this requirement....
...statutory authorization to promulgate rules “so as to obtain
uniformity in the practices and proceedings of superintendents,
registrars, deputy registrars, poll officers, and other officials, as well
as the legality and purity in all primaries and elections[,]” OCGA §
21-2-31 (1), “consistent with law, as will be conducive to the fair,
legal, and orderly conduct of primaries and elections[,]” OCGA § 21-
2-31 (2), and “to define uniform and nondiscriminatory standards
concerning what constitutes a vote and what will be counted as a
vote for each category of voting system used in this state[,]” OCGA
67
§
21-2-31 (7).
The Appellants argue that this statutory grant of authority
authorized the SEB’s exercise of rulemaking power under the
reasoning of DOT....
...that takings be “reasonable, necessary, and in the public interest” is
sufficient, the SEB’s statutory authority to promogulate rules to
promote “uniform[ ],” “legal,” “pur[e],” “fair,” and “orderly” elections
is also sufficient. See id; OCGA §
21-2-31 (1), (2), (7)....
...Assembly with the power to enact rules and procedures that govern elections.
Thus, step two in the nondelegation framework is not in dispute.
76
agency. See, e.g., Bentley,
152 Ga. at 838. The Appellants point to
OCGA §
21-2-31 (1), (2), (7), which provides the SEB with general
rule making authority, as evidence that the specific rules at issue
here were authorized by the Election Code. On its face, this
statutory text would seem to support the Appellants’ argument.
OCGA §
21-2-31 (1), for example, allows the SEB to promulgate
rules “so as to obtain uniformity” in the practices of local election
officials....
...text, resting on the reasonable presumption that the legislature did
not intend the alternative which raises serious constitutional
doubts.” (citation and punctuation omitted)).
A reasonable limiting construction does exist. In several places
under OCGA §
21-2-31, which outlines the general duties of the SEB
in addition to providing for its rulemaking authority, the legislature
provided that the SEB is to act or promulgate rules “consistent with
law.” See OCGA §
21-2-31 (2), (10)....
... “reasonable inquiry” into the validity of the results is incompatible
with the clear requirements of OCGA §
21-2-493. And the rule
cannot support “uniformity” in election proceedings if it does not
define the steps necessary to conduct a “reasonable inquiry.” See
OCGA §
21-2-31 (1)....
...183-1-14-.02 (18).
90
signature and photo identification requirements ensure that voters
comply with OCGA §
21-2-385 (a) in furtherance of the SEB’s
authority to “promulgate rules and regulations” to ensure “legality
and purity” in all elections. See OCGA §
21-2-31 (1)....
...requirements that the statute itself imposes.
The SEB is authorized to promulgate rules “to obtain
uniformity in the practices and proceedings” of election officials,
with the important caveat that the rules must be “consistent with”
the existing statutory scheme. OCGA §
21-2-31 (1), (2)....
