Arrest Warrant Sought Against Brad Raffensperger

(An edited version of this story is expected to appear next week in The Federalist)

In a May 2024 action reminiscent of the battle between “David and Goliath,” Cherokee County Georgia voter Tim Adderholdt asked the Magistrate Court in his county to issue a warrant for the arrest of one Bradford Jay Raffensperger, the Georgia Secretary of State. He has accused Raffensperger of three criminal offenses: “Violation of Oath by a Public Officer”, “False Statements and Writings”, and “Criminal Solicitation.”

Adderholdt’s claims stem from a May 2020 rule change unanimously adopted by the State Election Board in response to the Covid pandemic. It allowed counties to open and scan absentee ballots up to three weeks before the June 9, 2020 combined Presidential Preference and State Primary, the State Primary Runoff, the November 2, 2020 General Election, and the January 5, 2021 US Senate Runoff.

Due to the pandemic, Georgia Governor Brian Kemp had declared a “Public Heath State of Emergency” on March 14, 2020, and called “for a special session of the General Assembly to convene at the State Capitol at 8 AM on Monday, March 16, 2020, to ratify this action through a joint resolution,” which the legislature approved.

Then in a move that remains controversial, Raffensperger announced on March 24, 2020 that he would be “mailing absentee ballot request forms to every Georgia voter,” putting the number at 6.9 million. Adderholdt characterized that as a “short sighted decision that created a staffing issue, and the SOS’s solution to their self-created staffing issue was to violate the law.”

During the May 18, 2020 State Election Board meeting, arguing in favor of the proposed rule change, Raffensperger’s General Counsel Ryan Germany told the Board:

“To give you some statistics, as of this morning, we have had 1,438,000 absentee ballot applications accepted. Out of that 1.4 million, 1.319 million of those absentee ballots have been mailed. The rest are, of course, in the process of being mailed. And out of those 1.3 that have been mailed, 1.25 million have already been delivered to Georgia voters. 360,173 ballots have already been accepted – been returned and accepted by county election officials. I think the last presidential preference primary, general primary, there was 36,000 total absentee vote by mail ballots cast in the entire election.  So we’re already at well above that in orders of magnitude.”

Summarizing his argument Germany said, “So that leads me to this emergency rule we are considering. With this many absentee ballots coming in, if there is going to be a way to get results any time quickly after the election, we think we need to allow counties to start processing these absentee ballots early.”

He explained that “with the new system, you’re able to scan the ballot without tabulating it, similar to early voting.” He said, “We also modeled this rule after the existing early tabulation statute,” without citing any statutory or emergency authority for the board to pass such a rule in contradiction of existing state law.

After a brief discussion, Board Member Matt Mashburn moved that “the rules be adopted as published” and received a second by Board Member Anh Le. The rule then passed unanimously, and the meeting adjourned.

Adderholdt’s position is that the rule was illegally adopted by the board, which at the time was chaired by Raffensperger and comprised of four other members who are all attorneys. He cites OCGA 21-2-386 claiming that for a period of 97 years, from 1924 until the law was amended in March of 2021 by the passage of SB202, the law required that:

The board of registrars or absentee ballot clerk shall keep safely, unopened, and stored in a manner that will prevent tampering and unauthorized access all official absentee ballots received from absentee electors prior to the closing of the polls.

He also cites a June 26,1980 opinion of the Georgia Attorney General on the law which confirmed that stating:

This is in response to your recent request for my opinion on whether a board of registrars may open envelopes containing absentee ballots prior to the closing of the polls, in the interest of expediting the counting of absentee ballots.

In my opinion, the mandatory language of (the code section then in use) forecloses all discussion of the matter. The board of registrars must keep the envelopes safe and unopened until after the closing of the polls.

When I asked Adderholdt if the board had relied on some unspecified emergency power when it adopted the rule, he said if it did that has not yet been argued in any of the legal proceedings.

Those began in December of 2020 when he filed a complaint in the Superior Court in Cherokee County to prevent the county from opening and scanning ballots ahead of the January 2021 US Senate Runoff.

Following the election that court found that the county had “opened the ballots pursuant to State Election Board Emergency Rule 183-1-14-.09-.15” which “expired January 5, 2021”, but dismissed the suit stating the passage of SB 202 had rendered the “Plaintiff’s case moot.”

Armed with that finding of fact Adderholdt, who for over three years had represented himself, lodged his criminal complaint in Magistrate Court.  When that court ruled that it “does not have jurisdictional authority to issue a declaratory judgement” and that it did not have the “authority to decide” the legality of the rule, Adderholdt retained criminal attorney and candidate for the Georgia House of Representatives Catherine Bernard to appeal the decision to the Cherokee Superior Court.

Whatever the outcome of Adderholdt’s case ultimately is, the central question here is whether Secretary Raffensperger, the State Election Board, and county boards of election violated the law during the 2020 election cycle.

Georgia voters deserve an answer to that question.  We cannot assume that Brad Raffensperger is in his last term as Secretary of State because our state has no term limit for the office. In fact, Democrat Max Cleland held it from 1983 to 1996.  So, if Raffensperger did break the law, and advised all 159 of our counties to do the same, we need to know that.

Towards that end, I turned to Georgia attorney Harry Macdougald for his thoughts on this issue. In an email, he pointed out that the emergency powers given to Governor Kemp during the Covid crisis did not extend to the Secretary of State or the State Election Board, and said:

“As a basic matter of administrative law, regulations may not contradict the statutes under which they are promulgated. The rule-making authority granted by O.C.G.A. § 21-2-31(2) requires that the rules be “consistent with law.”

The regulation for early opening and scanning of absentee ballots was plainly contrary to the statute governing the handling of absentee ballots and therefore clearly unlawful.”

When asked for comment, Mike Hassinger, Public Information Officer for the Secretary of State responded: “We can’t comment on any pending litigation or legal matters.”