Official Opinion 2005-3

You have asked for my official opinion on how the powers and duties of your office in relation to enforcing the State’s Election Code are affected by the creation and operation of the State Election Board, which you also chair. It is my official opinion that Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency.

The Office of the Secretary of State is created by the Georgia Constitution. GA. CONST. art. V, § III, I.1 The Office is filled in the same manner as that of the Governor, i.e., by statewide election, and the incumbent serves a four-year term of office. GA. CONST. art. V, § I, I. A person seeking to hold that office must have been both a citizen of the United States for ten years and a legal resident of the state for four years immediately preceding his or her election or appointment. GA. CONST. art. V, § III, II(a). Additionally, a person seeking to hold that office must have attained the age of 25 by the date he or she assumes the office. Id.

The Constitution does not directly prescribe specific duties for the Secretary of State, but instead provides that the powers and duties of the Secretary and other statewide elected constitutional officers shall be defined by the General Assembly. GA. CONST. art. V, § III, III.2 The Constitution does, though, in other areas provide for specific duties of the Secretary of State which relate either directly or indirectly to the area of “election’s laws.”3 For example, in Article II of the Constitution dealing with Voting and Elections, the General Assembly is required to, “provide by law for a procedure whereby returns of all elections by the people shall be made to the Secretary of State.” GA. CONST. art. II, § II, I. The Secretary has the duty to certify referendum results for amendments to or repeals of local laws, ordinances, resolutions, or regulations and to accept for filing and publish information related to such referendums. GA. CONST. art. IX, § II, (b)(2) and (g). The Secretary is also charged with helping to prepare and publish summaries of proposed amendments to the State Constitution prior to their being submitted for approval in statewide referendums. GA. CONST. art. X, § I, II. These provisions provide a constitutional dimension to the Secretary of State’s responsibility in the area of the elections.

In carrying out its constitutional duty to define further the powers and duties of the Secretary, the General Assembly has enacted a multitude of statutes specifically defining the authority of that office, many of them in areas dealing with the state’s election laws. These are, of course, primarily identified in Title 21 of the Code of Georgia, but are also recognized in other provisions of the Code.4

The State Election Code provides in O.C.G.A. § 21 2 50(a) that the Secretary of State is empowered as follows:

(1) To determine the forms of nomination petitions, ballots, and other forms the Secretary of State is required to determine under this chapter;

(2) To receive registration statements from political parties and bodies and to determine their sufficiency prior to filing, in accordance with this chapter, and to settle any disputes concerning such statements;

(3) To receive and determine the sufficiency of nomination petitions of candidates filing notice of their candidacy with the Secretary of State in accordance with this chapter;

(4) To certify to the proper superintendent official lists of all the political party candidates who have been certified to the Secretary of State as qualified candidates for the succeeding primary and to certify to the proper superintendent official lists of all the candidates who have filed their notices of candidacy with the Secretary of State, both such certifications to be in substantially the form of the ballots to be used in the primary or election. The Secretary of State shall add to such form the language to be used in submitting any proposed constitutional amendment or other question to be voted upon at such election;

(5) To furnish to the proper superintendent all blank forms, including tally and return sheets, numbered lists of voters, cards of instructions, notices of penalties, instructions for marking ballots, tally sheets, precinct returns, recap sheets, consolidated returns, oaths of managers and clerks, oaths of assisted electors, voters certificates and binders, applications for absentee ballots, envelopes and instruction sheets for absentee ballots, and such other supplies as the Secretary of State shall deem necessary and advisable from time to time, for use in all elections and primaries. Such forms shall have printed thereon appropriate instructions for their use;

(6) To receive from the superintendent the returns of primaries and elections and to canvass and compute the votes cast for candidates and upon questions, as required by this chapter;

(7) To furnish upon request a certified copy of any document in the Secretary of State's custody by virtue of this chapter and to fix and charge a fee to cover the cost of furnishing same;

(8) To perform such other duties as may be prescribed by law;

(9) To determine and approve the form of ballots for use in special elections;

(10) To prepare and provide a notice to all candidates for federal or state office advising such candidates of such information, to include requirements of this chapter, as may, in the discretion of the Secretary of State, be conducive to the fair, legal, and orderly conduct of primaries and elections. A copy of such notice shall be provided to each superintendent for further distribution to candidates for county and militia district offices;

(11) To conduct training sessions at such places as the Secretary of State deems appropriate in each year, for the training of registrars and superintendents of elections;

(12) To prepare and publish, in the manner provided in this chapter, all notices and advertisements in connection with the conduct of elections which may be required by law;

(13) To prepare and furnish information for citizens on voter registration and voting;

(14) To maintain the official list of registered voters for this state and the list of inactive voters required by this chapter; and

(15) To develop, program, and build ballots for use by counties and municipalities on direct recording electronic (DRE) voting systems in use in the state.

Other prominent assignments of powers and responsibilities to the Secretary in relation to the implementation of the state’s election laws include authorizing the Secretary to accept or challenge the qualifications of candidates for state or federal office (O.C.G.A. § 21 2 5), designating the Secretary as the chief state election official under the Help America Vote Act of 2002 (HAVA) and under the National Voter Registration Act of 1993 (NVRA) (O.C.G.A. §§ 21 2 50.2 and 21 2 210), authorizing the Secretary to train the state’s local elections officials (O.C.G.A. § 21 2 100), maintaining the statewide voter registration system (O.C.G.A. §§ 21 2 219 through 21 2 225) and designing and implementing the statewide electronic voting system (O.C.G.A. § 21 2 300).

As demonstrated by Appendix B to this opinion, these provisions barely touch upon the myriad of powers, duties, and responsibilities assigned to the Secretary by the General Assembly. Just as a matter of sheer volume and scope, it is clear that under both the Constitution and the laws of the State the Secretary is the state official with the power, duty, and authority to manage the state’s electoral system. No other state official or entity is assigned the range of responsibilities given to the Secretary of State in the area of elections.

Consistent with the Secretary’s responsibilities in the area of elections, the General Assembly has also designated the Secretary as the chairperson of the State Election Board (Board or SEB). The immediate predecessor to the State Elections Board was the State Election Commission, which was originally created in 1959. 1959 Ga. Laws 59. That Commission was originally composed of the Governor, the Secretary of State, and the Attorney General, with the Secretary of State being designated as the chairperson. Id. Its duties were not enumerated in great detail by the General Assembly, but were to be particularly focused on absentee voting by members of the military, the selection of presidential electors, the qualifications and registration of voters, and the election of United States Senators. 1959 Ga. Laws at 60.5 Administrative staff for the Commission was provided by the Secretary of State. Id.

In 1964, Georgia adopted its first unified State Election Code.6 As a part of this legislation, the State Election Board was created as a three member body, chaired by the Secretary of State and further composed of two electors, one each to be selected by a majority vote of the House of Representatives and the Senate. 1964 Ga. Laws Ex. Sess. 26, 33-34. These two members of the Board served two year terms which were concurrent with the terms of the members of the legislative body which chose them. Id. Additionally, the executive committee of each of the state’s political parties had the “privilege of from time to time appointing a member of its party to act as an advisor to the Board.”7 1964 Ga. Laws Ex. Sess. 34. The Board was authorized to consult with and receive advice from these political party advisors. Id.

In relation to the office of the Secretary of State, this three-member Election Board was charged with the duty

[t]o so coordinate the work of the Secretary of State, the ordinaries, the poll officers, and other officials, as to obtain uniformity in their practices and proceedings and legality and honesty in all elections.

1964 Ga. Laws Ex. Sess. 35 (former Ga. Code Ann. § 34 202(a)).8 The Board was authorized to adopt rules and regulations consistent with the law “as will be conducive to the fair, legal and orderly conduct of elections” and to file those rules with the Secretary of State. Id. (Former Ga. Code Ann. § 34 202(b)). These Board rules were then to be published and distributed to election officials across the state. Id. (Former Ga. Code Ann. § 34 202(c)). The Board could also investigate the administration of election laws and report violations for prosecution, move to file or intervene in court cases involving the state’s election law, or conduct its own investigations into alleged election frauds or irregularities. 1964 Ga. Laws Ex. Sess. 35-38, 84-86 (former Ga. Code Ann. §§ 34 202, 34 203, 34 204, 34 904).

In 1968, the composition of the SEB was altered so that the nominees of the political parties were made actual members of the Board rather than just advisors, bringing the composition of the Board to five members and still chaired by the Secretary of State. 1968 Ga. Laws 862, 862 64. The role of the Board was then described as supervising and coordinating the work of the Secretary and local election officials so “as to obtain uniformity in their practices and proceedings and legality and purity in all primaries and elections.” 1968 Ga. Laws 865. The Board also was given the authority to formulate, adopt, and promulgate rules and regulations “as will be conducive to the fair, legal and orderly conduct of primaries and elections” and to publish and furnish copies of the state’s election laws and pertinent rules and regulations for election officials and the public. Id. The Board retained its ability to investigate the administration of election laws and alleged frauds and irregularities and report any violations for prosecution. Id. As to matters of policy, the SEB was authorized to make recommendations on legislation to the General Assembly and to take such other action, consistent with the law, as would be conducive to fair, legal, and orderly elections. 1968 Ga. Laws 867-68.

In 1969, members of the SEB other than the Secretary were prohibited from qualifying for any elected office. 1969 Ga. Laws 329, 332. The Board was given the ability to go into court to enforce the state’s election laws in 1991, and the authority to hold administrative proceedings and impose civil fines for the violation of the state’s election laws in 1993. 1991 Ga. Laws 608; 1993 Ga. Laws 1670, 1671 72. The Attorney General was also given the authority in 1993 to investigate violations of election laws, either independently or upon referral from the Board. Id. The current version of the statute took shape under revisions in 1998 (which otherwise eliminated the state’s separate municipal election code), 2001 (permitting private parties to proceed with remedies to election-related complaints without waiting for SEB action), and 2003 (providing the SEB with authority to promulgate rules and regulations defining uniform and nondiscriminatory standards for counting votes). 1998 Ga. Laws 295, 307 34; 2001 Ga. Laws 230, 231; 2003 Ga. Laws 517, 519.

The SEB remains a five person board today, chaired by the Secretary of State. The remaining four members, who must be electors,9 are selected respectively by a majority of the House, a majority of the Senate, and nominated by each party for appointment by the Governor as representatives of the state’s two recognized political parties, the Democratic and Republican Parties of Georgia. See O.C.G.A. § 21 2 30. Three members of the Board constitute a quorum and can exercise the powers and duties of the SEB as an entity. O.C.G.A. § 21 2 30(d). The law provides no authority for members of the Board to act individually and separately from this quorum of the Board. Id. The powers and duties assigned to the Board include:

(1) To supervise and coordinate the work of the office of the Secretary of State, superintendents, registrars, deputy registrars, poll officers, and other officials so as to obtain uniformity in their practices and proceedings and legality and purity in all primaries and elections;

(2) 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; and, upon the adoption of each rule and regulation, the board shall promptly file certified copies thereof with the Secretary of State and each superintendent;

(3) To publish and furnish to primary and election officials, from time to time, a sufficient number of indexed copies of all primary and election laws and pertinent rules and regulations then in force;

(4) To publish and distribute such explanatory pamphlets regarding the interpretation and application of primary and election laws as in the opinion of the board should be distributed to the electorate;

(5) To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law;

(6) To make such recommendations to the General Assembly as it may deem advisable relative to the conduct and administration of primaries and elections;

(7) To promulgate rules and regulations 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;

(8) To employ such assistants as may be necessary; and

(9) To 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.

O.C.G.A. § 21 2 31.10

The SEB retains its ability to intervene or institute legal actions in the courts and to enforce the state’s election laws through administrative enforcement actions. O.C.G.A. § 21 2 32, 21 2 33, 21 2 33.1. The Election Code further clarifies the scope of the SEB’s administrative authority by providing that it may hear complaints and levy civil penalties for the failure of local election officials to attend training, obtain necessary certifications, or for failing to properly maintain the registered voters list or for failing to provide access for provisional ballots. See O.C.G.A. §§ 21 2 100, 21 2 101, 21 2 231, 21 2 408. Additionally, the SEB may by rule or regulation determine the appropriate wording for the directions on how to vote on the state’s voting equipment and may provide rules and regulations for assuring ballot secrecy for write-in votes. O.C.G.A. §§ 21 2 284, 21 2 373. The Board also may impose a $100,000 penalty for the sale of voting equipment in Georgia which has not been certified for use by the Secretary of State. O.C.G.A. §§ 21 2 324, 21 2 368, 21 2 379.2. Under O.C.G.A. § 21 2 408, the Board is authorized to accept the written designation of political party poll watchers and the Secretary of State, as chairperson of the Board, may then officially designate those poll watchers. Finally, the SEB is required to receive notice of and copies of election contest petitions. O.C.G.A. § 21 2 524.

Given this legal framework, then, Georgia law provides for a symbiotic relationship between the Office of the Secretary of State and the State Election Board but it does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other. The Secretary of State is a constitutional officer elected statewide. The constitutional status of the Secretary includes a responsibility in the area of elections. The General Assembly has recognized this assignment of authority to the Secretary through the Official Code of Georgia and has not otherwise called into question the power and responsibility of the Secretary through its delineation of additional responsibilities to the State Election Board.11

Georgia’s Constitution and Election Code make it amply clear that the Secretary is charged with the primary responsibilities required to enforce the state’s election laws. There is no indication in the law that the constitutional and statutory authority of this officer should be limited or substantively controlled by a board of political appointees who are not answerable to the electorate for their actions.

The role of the State Election Board is more limited in the area of implementing and enforcing the state’s election laws than that of the Secretary. Its duties and responsibilities relate not just to the Office of the Secretary of State, but also to local election officials such as voter registrars and election superintendents, and are directed to the broader policy considerations of providing for technical uniformity in the operation of election practices and procedures and in providing a due process mechanism for determining whether violations of laws, rules, or regulations have occurred. A review of O.C.G.A. § 21 2 31 shows that the Board’s role is to educate and coordinate across the lines of state and local governmental authority to assure that there is consistent and uniform guidance on interpretation and implementation of the Election Code. This is done through the adoption of rules and regulations which are then published and distributed to all election officials, and through the administrative enforcement powers that the SEB has to enforce those rules and regulations. Should the Board believe that there are additional requirements that should be advanced in the area of election law, but which are beyond its abilities to provide through rule or regulation or which exceed the scope of its authority, the Board is authorized to make legislative recommendations to the General Assembly.

The use of the term “supervise” in O.C.G.A. § 21 2 31(1) does not mean that the State Election Board, however, becomes the director of or has authority over the actual operation of the Office of the Secretary of State or of any local election official, whose offices are also separately created by either the Constitution or state law. There is no indication that the use of the term “supervise” is intended to provide the Board with the authority to run the day-to-day operations of these offices. Neither the Board nor any single member of the Board has any power or authority to make employment or operational decisions for any of these state or local officials or to engage in any policy making or operational oversight of their general activities.

The term “supervise” is not defined in the Code itself and is not a “term of art” related to a particular area of the law or profession, so the rules of statutory construction provide that it be given its ordinary and common meaning. O.C.G.A. § 1 3 1(b); 1997 Op. Att’y Gen. 97 18; 1995 Op. Att’y Gen. 95 42. Generally, the term “supervise” means to give direction, to inspect or to look over the performance of others. See THE AMERICAN HERITAGE DICTIONARY 1221 (2d ed. 1985). In the context of O.C.G.A. § 21 2 31 and the other limited statutory provisions regarding the Board, this means the Board is given the authority to provide policy direction and oversight to the Office of the Secretary of State and local election officials in the area of elections to the extent that such policy direction and oversight is in accordance with the Board’s statutory purpose of assuring “uniformity in their practices and proceedings and legality and purity in all primaries and elections.” The Board’s “supervisory” authority can extend no further than that statutorily authorized purpose. “As an administrative body created by the legislature, [a state agency] ‘has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.’ Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922).” 2000 Op. Att’y Gen. 2000-2.

The fact that the Board is chaired by the Secretary of State further indicates a statutory goal that the Board’s actions are to be influenced and directed by the Secretary of State, presumably with the “good government” result that these two entities will coordinate consistently in providing guidance on the appropriate enforcement of Georgia’s electoral statutes.12 To the extent that the Board finds that the state’s election laws or underlying rules and regulations are not being complied with, the Board may act through its counsel, the Attorney General, either to institute or intervene in legal actions in any court in the state or to conduct administrative proceedings to enforce compliance with the law or its own rules and regulations. The Office of the Secretary of State is a part of that process and may provide administrative and logistical support to the Board in carrying out these responsibilities.

To interpret more broadly the Board’s authority so as to permit the Board to interfere in the substantive operation of the Secretary of State’s office would directly contravene the authority given to the Secretary of State both under the Constitution and the laws of this state. The Secretary, as a statewide elected constitutional officer, enjoys a status in our republican form of government which transcends that of other appointed officials who may head executive agencies. The power and authority of that office runs directly from a grant by the people through the State Constitution itself and through the acts of the General Assembly.13 In the case of the Secretary, that constitutional authority is further buttressed in the area of election law by the very history and laws of the state.

Additionally, the General Assembly could not confer upon the Board the power or the authority to direct the Secretary of State in the performance of the duties of office without doing violence to the concept of the “separation of powers” in relation to this statewide elected constitutional officer. The Georgia Constitution provides that “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct.” GA. CONST. art. I, § II, III. The General Assembly could not have intended, through its appointment of two members of the Board, to provide operational control over an executive branch elected constitutional officer or the constitutional office. Given that two of the appointees to the Board are nominated by political parties, although they are actually appointed by the Governor, it would certainly seem to be an improper delegation of state authority to such appointees to permit them to direct or “supervise” the operations of a state constitutional officer or department. See 1993 Op. Att’y Gen. 93 21 (discussion on improper delegation of authority to private entities).

Therefore, it is my official opinion that Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency. The State Election Board fulfills its responsibilities in providing direction and oversight to the Secretary of State and other election officials when such direction is necessary to assure uniformity in their practices and procedures or the “legality and purity” of the electoral process. However, the Board has no authority, beyond this defined statutory scope, to direct the policy and activities of the Secretary of State as a statewide elected constitutional officer.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General

1 The Office of the Secretary of State is a venerable one dating from the earliest days of the United States and of the State of Georgia. See GA. CONST. (1789), art. II, § XI; GA. CONST. (1798), art. II, §§ XII and XIII; GA. CONST. (1861), art. III, § II, VIII and IX; GA. CONST. (1865), art. III, § II, VIII and IX; GA. CONST. (1868), art. II, § IX; art. IV, §§ VIII and IX; GA. CONST. (1877), art. II, § VI, I; art. V, § I, I, IV; art. V, § II, I, VI and VII, art. V, § III, I; GA. CONST. (1945), art. II, § VI, I; art. V, § I, III; art. V, § II, I and IV; art. V, § III, I; GA. CONST. (1976), art. II, § III, IV; art. V, § I, III; art. V, § III, I, IV, and VI.

2 See Appendix A for a listing of the current constitutional provisions dealing with the Office of the Secretary of State.

3 Some of the Secretary’s election-related responsibilities provided for in the State Constitutions date from at least the Constitution of 1868. See infra note 1.

4 See Appendix B for a listing of the statutory provisions addressing the Office of the Secretary of State in the context of the state’s election laws.

5 The Secretary of State at that time already had a prominent role in the enforcement of these elections statutes addressed in the Election Commission’s legislation. See 1953 Ga. Laws (Jan.-Feb. Sess.) 244; 1958 Ga. Laws 208, 1958 Ga. Laws 269.

6 For a more complete discussion of the adoption of the 1964 State Election Code see Brooks v. Miller, 158 F.3d 1230, 1233-34 (11th Cir. 1998), cert. denied sub nom. Brooks v. Barnes, 526 U.S. 1131 (1999).

7 The term “political party” was at that time and is now a term of art meaning a political organization which at the preceding gubernatorial election had nominated a candidate who had received at least 20% of the total statewide vote or which had nominated a candidate for President of the United States whose presidential electors had received at least 20% of the total vote cast nationwide. 1964 Ga. Laws Ex. Sess. 28, 30 (former Ga. Code Ann. § 34 103(u); current version O.C.G.A. § 21 2 2(25)).

8 The role of the Secretary of State in the enforcement of the state’s election laws was also addressed throughout the 1964 legislation. 1964 Ga. Laws Ex. Sess. 38-39, 63-66, 73, 81-82, 86, 95, 106-07, 119-20, 123, 171-74, 185.

9 “‛Elector’ means any person who shall possess all of the qualifications for voting now or hereafter prescribed by the laws of this state . . . and shall have registered in accordance with this chapter.” O.C.G.A. § 21 2 2(7).

10 Appendix C to this opinion contains a further listing of statutes addressing the powers and duties of the SEB. Additionally, H.B. 244, passed in the recently concluded session of the General Assembly but not yet signed by the Governor, transfers the rule-making authority for absentee voting, contained in O.C.G.A. § 21 2 381(e), from the Office of the Secretary of State to the State Election Board. H.B. 244, 2005 Gen. Assem., Reg. Sess. (Ga. 2005).

11 If the General Assembly specifically includes language in one section of a statute and fails to include that language in a provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995) (“The omission of [specific statutory language] ‘invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.’”). 2000 Op. Att’y Gen. 2000-2, at 2.

12 In interpreting the application of a statutory exception and determining the General Assembly’s intent in enacting different statutory provisions, the law requires that statutes be read in pari materia (i.e., together) and with an intent to harmonize the purposes of both statutes. 2003 Op. Att’y Gen. 2003-5. See also, e.g., 2002 Op. Att’y Gen. 2002 6, 2001 Op. Att’y Gen. 2001 8. “It is also[] ‘a basic tenet of statutory construction that the General Assembly is presumed to enact legislation with full knowledge of the existing conditions of the law and statutes are to be construed in connection and in harmony with existing law.’” 1997 Op. Att’y Gen. 97-18, at 50, quoting Poteat v. Butler, 231 Ga. 187, 188 (1973).

13 See generally Perdue v. Baker, 277 Ga. 1, 7 (2003), and 2001 Op. Att’y Gen. 2001 08 for discussion of the authority of constitutional officers.

Provisions in the Georgia Constitution addressing the Office of the Secretary of State

Official Code of Georgia provisions addressing elections and election related responsibilities of the Office of the Secretary of State

Official Code of Georgia provisions addressing elections and election related responsibilities of the State Election Board.