(Guest Opinion by Al Pearson) Elections in Georgia: Why They Can Be Trusted

Donald Trump’s preoccupation with the 2020 presidential election remains very much alive.  In his telling, the Democrats not only stole the 2020 election, they were so “good at cheating” they could do it again in 2026.  This reflects a dismal view of human nature in a society where we trust in the honesty, competence and good will of others in the countless interactions of everyday life.  This foundational premise of trust is enshrined in the first sentence of the Constitution which begins with the words, “We the people of the United States” and is captured in iconic phrases such as “consent of the governed” and “e pluribus unum.”   If polling places become war zones as increasingly seems possible, our faith in democracy will continue to deteriorate.  In this essay, I make the case for trust in the integrity of Georgia’s elections.

Elections in this country are among the most tightly regulated and closely monitored of all governmental functions.  In Georgia, they are governed by a comprehensive, multi-layered body of rules, procedures and security measures.  The bulk of the work is handled at the local level by people – many of whom are civic minded volunteers – who could be your neighbors, your fellow worshippers, or someone you occasionally see when picking up your morning coffee.  The 2020 general election in Georgia represented the collective effort of more than 27,000 poll workers and poll watchers in 2,755 polling places throughout 159 counties.  A lot of eyeballs were on the watch which is the point.  The idea is that someone at some point will notice and report any potential voting irregularities.

The goal of every election is to identify the rightful winner.  This does not mean elections must be error free, an unrealistic goal in a statewide election in which millions of votes were cast as was the case in Georgia.  Perfection is not the standard in Georgia and never has been.  The ultimate question is whether vote counting errors are numerous enough to cast doubt about the outcome of an election. O.C.G.A. §21-2-522.  Such errors rarely go undetected and unresolved.  The election technology and operational practices in Georgia are a major reason why.  They rely on a variant of double entry accounting commonplace in our increasingly paperless and cashless society.  Think bank, medical, insurance, or tax records along with an estimated 150 million credit card transactions each day.

Highlights of Georgia’s system of checks and balances follow.

First, every person involved in the conduct of an election is required to take an oath to carry out their responsibilities impartially and faithfully.  Oaths add solemnity and moral force to a shared sense of duty.  They range from the pledge of allegiance, to a promise to testify truthfully in court, to the notarization of your signature. In the election context, oaths in Georgia include language promising to prevent fraud, deceit or abuse.  They apply to all poll managers and clerks, all personnel involved in the tabulation of ballots, and all personnel who prepare, install and maintain voting equipment and software.  They are more than an abstract, hollow declaration; they represent a personal commitment to one’s fellow election workers and to each and every voter.  Their significance should not be overlooked or trivialized.

Second, under a statute dating back to 1895, “[s]uperintendents, poll officers, and other officials engaged in the conducting of primaries and elections held under this chapter shall perform their duties in public.” O.C.G.A. §21-2-406.  People tend to be on their best behavior when someone is watching.  This is not raw cynicism.  Individuals are more conscientious trying to do the right thing when they are in the company of others sharing the same commitment.  If you think this is pop psychology, talk to your daughter’s volleyball coach or to your son’s football coach.  The subject of teamwork will probably come up.

Third, prior to election day, the components of the election voting system are removed from storage and tested to determine whether each perform as intended.  The public is entitled to observe this process and to address any complaints or concerns to the election superintendent.

Fourth, election officials in every county maintain a working list of registered voters broken down precinct-by-precinct.  Like organizing a birthday party for one of your children, you need to know how many people to plan for.  At voter check-in, only those who are registered to vote, have proper identification and are at the correct polling place receive voter access cards.  A list of all persons receiving voter access cards is separately maintained.  The numbers on these lists should be reconcilable with the number of ballots cast and counted.

Fifth, with voter access card in hand, the voter then goes to a voting machine to generate a “humanly readable” paper ballot.  Every voter is reminded to check it for accuracy.  The ballot is then run through an electronic scanner and with, no human intervention, is counted.  Each paper ballot is securely stored in a bin connected to the scanner.  A digital copy of each ballot is also generated.  At the precinct level, the respective vote totals should match and should be consistent with the number of voter check-ins, voter access cards issued and votes cast on the scanners.

This data establishes that only registered voters cast ballots and that the overall vote count in each race – state or local – is in alignment with the number of votes cast and credited.  It also establishes the official margin of error – Biden defeated Trump by 11,679 votes – for use in post-election audits, recounts and election contests.

Sixth, after election day, there are three additional ways to gauge the correctness of the initial vote count in Georgia elections.  Each one was utilized in 2020 and each one reflected a Biden victory over Trump.

Post-election reconciliation reports are mandated under State Election Board rules.  The election superintendent in each county is required to prepare and forward this report to the Secretary of State no later than 30 days after election day.  This report tracks the journey – county-by-county and precinct-by-precinct – of every ballot cast by all registered voters confirmed during check-in.  It is possible to narrow an investigation down to a particular county, precinct, polling place or even to a particular scanner.  Technical, clerical or administrative mistakes are not attributable to the voter and do not authorize the exclusion of any ballot from the count.

Reconciliation reports reveal how mundane, how random and how isolated such mistakes are – a pattern confirmed again and again in the proceedings of the State Election Board dating back to 2007 when transcripts first became available.  The Republicans have been in the majority on the Board since 2007 and all three branches of government have been under Republican control since 2005.  If the Democrats engaged in election fraud on an organized and widespread basis, it would have been a major political scandal.   Somehow, the Republicans missed the “truckloads” of evidence that Trump now claims to possess.  Reconciliation reports provide a roadmap telling you where to look.  They are also readily available public records. Collectively, they show that Biden was the winner of the election.

Two statewide recounts were conducted in Georgia after the 2020 election, one of which was a hand count of every ballot.  Both recounts focused on the presidential race.  Each one showed that Biden won the election.  The difference in Biden’s margin of victory between the two recounts was 505 votes.  This discrepancy is 0.0101% out of five million votes cast, an error rate which would be considered outstanding under any circumstances.

This brings us to a puzzle at the heart of the widespread election fraud narrative.  Donald Trump claims he won the 2020 election in Georgia by hundreds of thousands of votes.  As criminal conspiracies go, that wouldn’t have been a mom-and-pop operation.  A lot of people would be required to sneak election fraud past 27,000 poll workers in 2,755 precincts throughout Georgia’s 159 counties.  In criminal law, it is axiomatic that the bigger the conspiracy, the easier it is to crack.  It takes only one or two conspirators who feel the heat, panic and scramble to be among the very first to turn state’s evidence.  Trump has had five years to make his case. To be sure, there has been no shortage of places to look, witnesses to interview and documents to read.  It is telling that no one has ever been criminally charged.

So, why has the election fraud narrative proved to be so elusive?

One reason is that election law litigation is sophisticated, specialized and laborious.  To be effective, an election challenger must excavate the facts to prove that fraudulent votes were cast and to further prove that they were numerous enough to cast doubt about the outcome of an election.   You can’t parachute into court and ask the judge to nullify an election based on nothing more than rumor, speculation or innuendo.  An election is the foundational event in a democracy.  Under Georgia law, the results are justifiably entitled to a strong presumption of validity.  This principle should not be debased by charlatans.

A second reason is that the election fraud narrative is political propaganda.  What matters most is the distrust it sows not whether it can be proven in court.  A simple thought experiment illustrates how implausible the narrative is.  Its proponents should be challenged to explain how an election fraud conspiracy might be organized.  You would have to embrace Trump’s mantra that Democrats are as dumb as rocks and yet cunning enough to cheat in elections on a vast scale without leaving any fingerprints.  They would have to find recruits willing to violate federal and state law.  The very act of approaching a potential recruit could arouse suspicion and trigger an alert to election officials or law enforcement.  The date and location of all of the crime scenes – i.e., election polling places – would be announced in advance of election day.  And the public is invited not just to vote but to observe the conduct of the election.  In short, every voter as well as every person involved in the administration of an election is a potential fact witness, whistle blower or conspirator.  How could a scheme of this scope be carried out without compromising operational secrecy?  Finally, potential recruits would have to be persuaded that the political benefit of involvement in the fraudulent scheme outweighs the risk of exposure and prosecution.  This scenario has the feel of a rejected Twilight Zone script.  The election fraud narrative is a theory in search of a rationale.  It should be rejected

The laws governing election administration in Georgia are worthy of the public’s trust and should not be changed.

*Al Pearson Background:

• Vanderbilt Law School 1972
• Law Clerk U.S. Fifth Circuit Court of Appeals 1972-73
• Faculty Boston College Law School 1973-74
• Supreme Court Fellow – Washington D.C. 1987-88.
• Faculty Georgia Law School 1974-94
• Trial and Appellate Practice 1994-2016
• Areas of specialization: Evidence, Constitutional Law & Civil Rights