REPUBLICAN NATIONAL COMMITTEE v. ETERNAL VIGILANCE ACTION, INC. (Two Cases)

321 Ga. 771

Opinion

321 Ga. 771 FINAL COPY

S25A0362. REPUBLICAN NATIONAL COMMITTEE et al. v. ETERNAL VIGILANCE ACTION, INC. et al. S25A0490. STATE OF GEORGIA v. ETERNAL VIGILANCE ACTION, INC. et al.

PETERSON, Chief Justice.

This is a case about all three kinds of government power:

legislative, executive, and judicial. Everyone agrees that the

legislative power that the Georgia Constitution vests in the General

Assembly includes the power to make rules for elections. But the

General Assembly did not make the seven rules that are challenged

in this case; instead, an agency vested with only executive power —

the State Elections Board (the “SEB”) — did. So this is a case about

whether and to what extent the General Assembly can and did

authorize the SEB to make those seven rules. And this is also a case

about whether the plaintiffs (some individuals and some

organizations) that have challenged those rules can invoke the

judicial power that the Georgia Constitution vests in Georgia courts to decide their claims.

We must decide that last issue first. We reiterate once again

that the Georgia Constitution allows us to decide only claims

brought by parties who have asserted that their own rights have

been violated. The organizational plaintiffs have not asserted the

violation of any of their own rights (at least of the sort that count for

standing), and so we cannot consider any of the claims that they

have brought, and we overrule any inconsistent precedent that

might have survived our previous course corrections. Our judicial

power now properly understood, we have the authority and

responsibility to consider the claims that the individual plaintiffs

have brought challenging five of the seven rules because those rules

threaten those individuals’ private right to vote. The voters do not

have standing as voters to challenge the remaining two rules. One

of the voters is also a member of the Chatham County Board of

Elections, however, and asserts that he has standing to challenge

these two rules by virtue of his position and possibility of personal

harm if he fails to conduct the elections lawfully and properly, which

2 he argues cannot be done since the challenged rules conflict with the

Election Code. But because the issue of this individual’s standing as

an election board member presents several novel and difficult

questions that the trial court has not yet considered, we vacate and

remand on that issue.

Once we reach the merits of the five rules that remain for our

present consideration, we immediately recognize that Dept. of

Transp. v. City of Atlanta, 260 Ga. 699 (398 SE2d 567) (1990)

(“DOT”), if we applied it, would lead us to uphold all of the

challenged rules. But that case has always been an extreme outlier

among our many other cases about to what extent — if any — the

General Assembly can delegate its legislative power to other

branches (the “nondelegation doctrine”). We conclude that DOT was

wrongly decided, and we overrule it. The long-standing Georgia legal

standard that we reinstate leads us to conclude that only one of the

five rules survives (a rule requiring video surveillance of drop boxes

following the close of polls each day); the other four rules are invalid.

We therefore affirm in part, reverse in part, vacate in part and

3 remand with direction.

1. Background.

The General Assembly created the SEB in 1964 as part of a

comprehensive effort to regulate federal, state, and county elections.

See Ga. L. 1964, Ex. Sess., p. 26 (preamble). 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. In response, several plaintiffs

— Eternal Vigilance Action, Inc. (“EVA”), a Georgia domestic

nonprofit corporation that focuses on election policy and defends

“the institution of elections from attacks that erode public faith in

electoral outcomes”; one of the group’s members and its Executive

Director, Scot Turner; and James Hall (collectively, “the Plaintiffs”)

— filed suit against the State, seeking (1) a declaration that the

rules were unconstitutional and contrary to the Election Code and

(2) injunctive relief to prevent their application. See Ga. Const. of

1983, Art. I, Sec. II, Par. 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). But the State did not rely on this provision as providing the SEB with the authority to issue the rules at issue in this case. 5 immunity to allow suits seeking a declaration that the “acts of the

state or any agency, authority, branch, board, bureau, commission,

department, office, or public corporation of this state” are “outside

the scope of lawful authority or in violation of the laws or the

Constitution of this state or the Constitution of the United States[,]”

and allowing a court to enjoin such acts upon granting declaratory

relief). Turner and Hall asserted standing as Georgia citizens,

registered voters, and taxpayers, while EVA asserted organizational

standing. In their sworn declarations, Turner and Hall said that as

voters, they were uncertain regarding the method by which they

would vote in the general election given the challenged SEB rules.

Hall is a member of the Chatham County Board of Elections and

stated that he was not sure as an election official whether to follow

the Election Code or the challenged rules, that he was “uncertain

how to direct the election officials to act in Chatham County to

ensure a consistent and legitimate election process[,]” and that he

was concerned he would face legal consequences for his decisions.

Soon after the complaint was filed, the SEB adopted additional

6 rules that the Plaintiffs then also challenged. In all, there are seven

SEB rules at issue that are either entirely new rules or amendments

to existing rules. Those seven rules, which will be discussed in more

detail later, provide briefly as follows:

1. That county election boards conduct a “reasonable

inquiry” before certifying the results of an election. Ga.

Comp. R. & Regs., r. 183-1-12-.02 (1) (c.2) (the

“Reasonable Inquiry Rule”).

2. That election board members are permitted to examine

all election-related documentation before certifying

results. Ga. Comp. R. & Regs., r. 183-1-12-.12 (a) (.1) (6)

(the “Examination Rule”).

3. That precinct workers count ballots by hand after the

close of the polls. Ga. Comp. R. & Regs., r. 183-1-12-.12 (a)

(5) (the “Hand Count Rule”).

4. That the total number of votes, as well as the specific

number of early and absentee voters, be reported daily

and made available on a website or in a public place

7 accessible 24 hours a day to the public. Ga. Comp. R. &

Regs., r. 183-1-12-.21 (the “Daily Reporting Rule”).

5. That poll watchers be allowed access to an expanded list

of areas where the tabulation of votes takes place. Ga.

Comp. R. & Regs., r. 183-1-13-.05 (the “Poll Watcher

Rule”).

6. That family members or caregivers provide photo

identification when dropping off an absentee ballot of

another voter at certain ballot drop-off locations. Ga.

Comp. R. & Regs., r. 183-1-14-.02 (18) (the “Drop Box ID

Rule”).

7. That absentee drop boxes at early voting locations be

under video surveillance outside of voting hours. Ga.

Comp. R. & Regs., r. 183-1-14-.02 (19) (the “Drop Box

Surveillance Rule”).

The Georgia State Conference of the NAACP (“Georgia

NAACP”) and the Georgia Coalition for the People’s Agenda, Inc.

(“GCPA”), intervened as plaintiffs (collectively, “Plaintiff-

8 Intervenors”) seeking to challenge only the Hand Count Rule, and

they asserted organizational and associational standing. The

Republican National Committee and the Georgia Republican Party

intervened as defendants (collectively, “Defendant-Intervenors”).

Following a hearing, the trial court granted relief to the

Plaintiffs. It found that they had standing to bring their claims;4 the

challenged rules were not authorized by any provision of the

Election Code and were contrary to it; the challenged rules violated

the nondelegation doctrine because there were no guidelines

constraining the SEB’s actions; and the rules violated the Elections

Clause of the federal Constitution because they were not

promulgated by the General Assembly. The Defendant-Intervenors

filed emergency motions seeking expedited review. Noting that we

lacked jurisdiction over cases involving challenges to the

constitutionality of administrative rules and regulations, we

nonetheless granted certiorari before judgment as to the emergency

4 The trial court did not specifically address the standing of Plaintiff-

Intervenors. 9 motion and appeal because the appeal presented “issues of gravity

and public importance.” After consideration, we denied the

Defendant-Intervenors’ motion for expedited review and for

supersedeas. As a result, the rules were enjoined during the

November 2024 election. This appeal followed in the ordinary

course.

2. Standing.

The State argues that the trial court erred in concluding that

the Plaintiffs have standing to challenge the seven rules at issue.

We agree in part and disagree in part and also conclude that the

Plaintiff-Intervenors lack standing.

Under the Judicial Power Paragraph of the Georgia

Constitution, see Ga. Const. of 1983, Art. VI, Sec. I, Par. I, Georgia

courts have the power to resolve only genuine controversies. See

Sons of Confederate Veterans v. Henry County Bd. of Commrs., 315

Ga. 39, 50 (2) (b) (880 SE2d 168) (2022) (“SCV”). For a genuine

controversy to exist, and thereby invoke the State’s judicial power,

a plaintiff must have standing to sue. Id. at 44-45 (2) (a), 50 (2) (b).

10 This is a jurisdictional requirement, mandating that a plaintiff show

that he has a legal “right at stake that requires adjudication to

protect it.” Id. at 44-45 (2) (a), 51 (2) (b). As the party seeking to

invoke the jurisdiction of a Georgia court, the plaintiff has the

burden of establishing standing. See Black Voters Matter Fund, Inc.

v. Kemp, 313 Ga. 375, 381 (1) (870 SE2d 430) (2022) (“BVMF”). A

plaintiff must assert the violation of his own rights and cannot

merely vindicate the rights of another. See Wasserman v. Franklin

County, 320 Ga. 624, 640 (II) (A) (2) (911 SE2d 583) (2025) (“The

requirement that a plaintiff must assert a violation of her rights to

maintain an action in Georgia courts is . . . the bedrock requirement

for invoking the judicial power granted by the Georgia

Constitution.”).

Standing must be established as to each claim of relief sought.

See Williams v. DeKalb County, 308 Ga. 265, 271 (3) (840 SE2d 423)

(2020). Although the Plaintiffs generally sought declaratory relief,

they sought relief as to seven different rules, so standing must be

established as to each rule. We first address whether the

11 organizational plaintiffs have organizational or associational

standing, then consider whether all the plaintiffs have community-

stakeholder standing to assert violations of community rights, and

then move to whether the individual plaintiffs have standing as

voters to challenge violations of their individual rights to vote.

(a) No organization has standing to challenge the rules under a

diversion of resources theory considered in BVMF.

The trial court ruled that EVA had organizational standing.

According to the plaintiff organizations — EVA, Georgia NAACP,

and GCPA — their organizations’ standing was established under a

“diversion of resources” theory discussed in BVMF. EVA argues that

it had to spend time and redirect resources analyzing different

measures to attempt to correct any negative effects resulting from

the SEB rules, while the Georgia NAACP and GCPA argue that

their work to register and mobilize voters would be undone by the

Hand Count Rule. In other words, the plaintiff organizations argue

that drawing resources away from their core business to deal with

12 the SEB rules is sufficient to establish organizational standing. That

is not — and has never been — sufficient as a matter of Georgia law.

In BVMF, this Court considered an argument asserting a

standing theory novel to Georgia: a “diversion of resources” theory

found in some federal cases. This theory was based on a United

States Supreme Court case determining that an organization suffers

an injury in fact under Article III of the United States Constitution

when it devotes significant resources to identify and counteract the

defendant’s actions. BVMF, 313 Ga. at 384 (1) (a) (citing Havens

Realty Corp. v. Coleman, 455 U.S. 363, 379 (102 SCt 1114, 71 LE2d

214) (1982)). After assuming without deciding that this theory

applied under Georgia law, we discussed the different applications

in federal cases and ultimately concluded that the broad theory the

plaintiffs relied upon in BVMF was inconsistent with the federal

injury-in-fact requirement that we had recently and uncritically

imported into our standing caselaw. BVMF, 313 Ga. at 386-387 (1)

(a). Accordingly, we concluded that the plaintiffs failed to show

standing. See id. at 387 (1) (a).

13 We have since recognized that our importation of federal

injury-in-fact requirements was not consistent with Georgia

standing law. After BVMF was decided, we engaged in a more

rigorous analysis of our standing doctrine in SCV and Wasserman,

rejecting “federal standing doctrine as a proper source of rules of

constitutional standing in favor of our own Constitution.”

Wasserman, 320 Ga. at 627 (II); see also SCV, 315 Ga. at 45 (2) (a)

(“[N]othing in the Georgia Constitution requires that we follow

federal law on standing, even though in our more recent history, this

Court has uncritically adopted federal jurisprudence on the question

of standing.”). In our review of the original public meaning of the

Judicial Power Paragraph of the Georgia Constitution as it applied

to standing doctrine, our historical precedent revealed the bedrock

principle that an individual must assert the violation of his own

rights in order to invoke the judicial power of Georgia courts. See

Wasserman, 320 Ga. at 638-639 (II) (A) (1) (b); SCV, 315 Ga. at 62

(2) (c) (iii).

14 As we observed in Wasserman, federal standing rules had long

been similar to Georgia rules, focusing on the violation of a legal

right, before federal jurisprudence departed from that original

understanding and imposed an injury-in-fact standing requirement

that could be satisfied merely by showing real-world damage or

harm from the defendant’s actions — a requirement that does not

necessarily depend on a violation of one’s own legal rights.

Wasserman, 320 Ga. at 639-640 (II) (A) (2). Although Georgia courts

briefly borrowed this theory uncritically, SCV and Wasserman were

course corrections, returning our inquiry into the scope of the

judicial power to its proper focus on vindicating the legal rights of

the parties, rather than on addressing mere factual harms. Id. at

638-639 (II) (A) (1) (b).

Here, the plaintiff organizations maintain that BVMF’s

organizational standing requirements were not disrupted by

Wasserman or SCV. That is partly true; an organization does have

standing “in its own right if it meets the same standing test

applicable to individuals.” BVMF, 313 Ga. at 382 (1) (a). And that

15 Georgia test — now properly understood — is centered on the

violation of a legal right, not a factual harm. Wasserman, 320 Ga. at

638-640 (2). But because BVMF merely assumed without deciding

that standing might be based on a diversion of resources theory as a

predicate to rejecting standing in that case, it was not a holding that

the diversion of resources theory is properly part of Georgia’s

standing doctrine. See Rabun County Bd. of Ed. v. Randel, 361 Ga.

App. 323, 326 (1) (864 SE2d 160) (2021) (noting that previous

opinion that assumed point without deciding it did not preclude

holding the opposite). More importantly, SCV and Wasserman have

made clear that a theory based solely on factual harms without any

grounding in a plaintiff’s own rights has no place in our standing

doctrine, and thus a diversion of resources theory divorced from a

showing of a violation of an organization’s legal rights cannot

establish organizational standing. Because none of the

organizations alleged, much less proved, that the SEB rules violated

16 any of the organizations’ own private rights, they do not have

organizational standing.5

(b) Neither Georgia NAACP nor GCPA has associational

standing.

Georgia NAACP and GCPA argue that they have associational

standing to assert the voting rights of their members. We disagree.

Associational standing is essentially a less-demanding version

of third-party standing, permitting a plaintiff to sue to vindicate the

rights of someone else, even if the plaintiff has suffered no injury.

5 We have said that a litigant has the burden of proving standing where

it is disputed and have dismissed an appeal where the litigant did not establish standing with competent evidence at trial. See Sherman v. City of Atlanta, 293 Ga. 169 (744 SE2d 689) (2013). And we have held that allegations in a complaint can be enough to survive a standing challenge at the motion to dismiss stage. See SCV, 315 Ga. at 63 (2) (c) (iii), 65 (2) (d) (i). These cases suggest that “proof” of standing depends on the stage of litigation in which it is challenged, which would be consistent with federal jurisprudence. See, e.g., Bischoff v. Osceola County, 222 F3d 874, 878 (11th Cir. 2000) (“[E]ach element of standing ‘must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’” (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (112 SCt 2130, 119 LE2d 351) (1992))). But we have not fully considered the issue in depth before and need not do so here. Where the plaintiffs have established standing in this case, there is record evidence supporting it. And where standing is lacking in this case, the plaintiffs have not even alleged the violation of a right that would confer standing, so the quantum of proof is irrelevant. 17 See Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga.

22, 24 (3) (608 SE2d 611) (2005); see also Assn. of American

Physicians & Surgeons v. United States Food & Drug Admin., 13

F4th 531, 547 (6th Cir. 2021) (unlike associational standing, third-

party standing “does not relieve plaintiffs of the need to

independently establish their own Article III standing” (emphasis in

original)). In concluding that federal third-party standing doctrine

was inconsistent with Georgia standing doctrine that allowed a

plaintiff to vindicate only his own rights, rather than the rights of

others, Wasserman noted that federal associational standing

doctrine also seemed inconsistent with Georgia standing law. 320

Ga. at 649 (II) (B) (2) n.14 (“the same reasons that require us to

excise federal third-party standing from Georgia law would seem to

apply to federal associational standing”). But Wasserman left the

question of the viability of federal associational standing unresolved

because it was not at issue in that case. See id. It is squarely at issue

here, and so, applying Wasserman, we conclude that the federal

associational standing doctrine that we adopted in Aldridge v. Ga.

18 Hospitality & Travel Assn., 251 Ga. 234 (304 SE2d 708) (1983), is

not a correct statement of Georgia law.

As with other federal theories of standing, we uncritically

adopted the federal associational standing theory in Aldridge. In

that case, we adopted the federal three-part test for associational

standing, allowing an association to have standing when

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Aldridge, 251 Ga. at 236 (1) (punctuation omitted; quoting Hunt v.

Washington State Apple Advertising Comm., 432 U.S. 333, 343 (97

SCt 2434, 53 LE2d 383) (1977)).

We were wrong to adopt this theory into Georgia law. Aldridge

involved a trade association attempting to protect the private rights

of its business members by challenging a county’s imposition of

inspection fees against those businesses, and we concluded that the

trade association had standing under the novel theory of

associational standing. 251 Ga. at 235, 236 (1). Aldridge cited only

19 federal authority and law review articles and did no analysis

whatsoever of whether the theory was consistent with the judicial

power under the Georgia Constitution. See id. at 236 (1); see also

SCV, 315 Ga. at 45 (2) (a) & n.4 (Georgia courts are permitted to

consider federal standing precedent persuasive only when it was

“guided by the same language, history, and context” as that of

Judicial Power Paragraph (citation and punctuation omitted)).

Wasserman’s reasoning that the federal doctrine of third-party

standing has no place in Georgia law applies with equal force here,

as federal associational standing is but a type of third-party

standing. A historical review of our decisional law reflected “a

consistent understanding that a plaintiff must assert her own legal

rights to have a Georgia court resolve a dispute about the relative

rights of the parties to an action” and that Georgia courts do not

have the power to resolve the rights of parties not before the court.

320 Ga. at 644 (II) (A) (2). Having concluded that federal

associational standing is incompatible with our Constitution, we

20 must decide whether to retain this theory as a matter of stare

decisis.

Under the doctrine of stare decisis,

courts generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. But stare decisis is not an inexorable command. To that end, we have developed a test that considers the age of precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.

State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020) (citation and

punctuation omitted). “These considerations,” however, “are

guideposts, not a mechanical formula or a multi-factor test.”

Wasserman, 320 Ga. at 647 (II) (B) (1). Therefore, the essential

“question whether to overrule a precedent comes down to whether

getting the law right is worth the cost to the rule of law of unsettling

what had been settled.” Id.

We previously have said that “stare decisis carries less weight

when our prior precedent involved the interpretation of the

21 Constitution, which is more difficult than statutory interpretation

for the legislative process to correct.” Olevik v. State, 302 Ga. 228,

245 (2) (c) (iv) (806 SE2d 505) (2017) (citing Ga. Dept. of Natural

Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 601

(2) (755 SE2d 184) (2014)). “This doesn’t mean that we disregard

stare decisis altogether, though; what it actually means is that the

first stare decisis factor (soundness of reasoning) becomes even more

critical. The more wrong a prior precedent got the Constitution, the

less room there is for the other factors to preserve it.” Olevik, 302

Ga. at 245 (2) (c) (iv).

Because Aldridge “uncritically import[ed] into Georgia law

holdings of federal courts about federal law,” it “fall[s] into the

category of unreasoned and arbitrary decisions that we have been

more willing to reconsider.” Wasserman, 320 Ga. at 647-648 (II) (B)

(2). Like the theory of third-party standing rejected in Wasserman,

federal associational standing is not only incompatible with our

longstanding constitutional standing rule, but it also wrongly

expanded the power of Georgia courts to resolve certain cases. See

22 id. at 648 (II) (B) (2). In other words, Aldridge is an aberration in

our standing law, making a “poor fit” that ought to be discarded from

“a system that is supposed to treat like cases alike.” Id. Although

federal associational standing is not “unworkable,” its three-part

test is less workable than “the clear and time-tested rule that a party

must assert [his] own rights to maintain an action.” Id.

None of the other considerations relevant to stare decisis

counsel in favor of retaining associational standing under Aldridge.

The age of the precedent does not itself lend much weight to

retaining it, as we have overruled decisions that are just as old or

older. See, e.g., Frett v. State Farm Employee Workers’ Comp., 309

Ga. 44, 62 (3) (c) (844 SE2d 749) (2020) (overruling 85-year-old

precedent); Southall v. State, 300 Ga. 462, 468 (1) (796 SE2d 261)

(2017) (overruling 45-year-old precedent); Lane, 308 Ga. at 17 (1)

(overruling 40-year-old precedent). More important than mere age,

although the doctrine of associational standing has been applied in

a few reported decisions, there is no indication that it has become so

“entrenched” in our jurisprudence, see Williams v. Harvey, 311 Ga.

23 439, 451 (1) (b) (858 SE2d 479) (2021), that discarding this doctrine

would be “enormously disruptive” to the legal system. Compare Cook

v. State, 313 Ga. 471, 512 (2) (a) (870 SE2d 758) (2022) (Peterson, J.,

dissenting). There are no reliance interests at stake, at least none

identified by the parties. See Savage v. State of Ga., 297 Ga. 627,

641 (5) (b) (774 SE2d 624) (2015) (substantial reliance interests are

most common in contract and property cases where parties may

have acted in conformance with existing legal rules in order to

conduct transactions). Consequently, we overrule Aldridge and

other cases to the extent they recognized federal associational

standing doctrine as a viable theory of standing under the Georgia

Constitution.6

6 Because Plaintiff-Intervenors assert only associational standing under

Aldridge, we need not and do not consider whether there might be some other form of standing compatible with the Georgia Constitution that associations may be able to assert. Those cases that recognized federal associational standing as a viable doctrine and that are hereby overruled to the extent they did include: Ga. Assn. of Club Executives, Inc. v. State of Ga., 320 Ga. 381, 382 (1) n.1 (908 SE2d 551) (2024); BVMF, 313 Ga. at 387-390 (1) (b); New Cingular Wireless PCS, LLC v. Dept. of Revenue, 308 Ga. 729, 734 (843 SE2d 431) (2020); Feminist Women’s Health Ctr. v. Burgess, 282 Ga. 433, 434 (1) (651 SE2d 36) (2007); Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 344 (2) (638 SE2d 307) (2006); Sawnee Elec. Membership Corp., 279 Ga. at 24 (3);

24 (c) The Plaintiffs have failed to show that community-

stakeholder standing applies in this case.

The Plaintiffs alternatively argue that they have standing to

challenge all the rules because they are community stakeholders,

but they have not established that this standing is available in the

context of a suit against the State, as opposed to suits against local

governments.

In SCV, we held that Georgia law has long provided that when

a local government owes a legal duty to community stakeholders

(i.e., citizens, voters, residents, or taxpayers), those stakeholders

have a legal right for the local government to fulfill that duty. The

violation of that legal right gives standing to a stakeholder, even if

the stakeholder in the case neither faces nor has suffered any

individualized injury distinct from that to the community at large.

315 Ga. at 53 (2) (b), 61 (2) (c) (iii). SCV’s holding was limited to suits

against local governments, as the only issue before us in that case

Newton County Home Builders Assn. v. Newton County, 286 Ga. App. 89, 91 (648 SE2d 420) (2007); Dept. of Revenue v. Sawnee Elec. Membership Corp., 265 Ga. App. 320, 321 (593 SE2d 756) (2004). 25 was whether the plaintiffs there had standing to sue their county

board of commissioners. Id. at 61 (2) (c) (iii) n.19. We applied this

principle again in Cobb County v. Floam, 319 Ga. 89 (901 SE2d 512)

(2024), allowing several voters to challenge the constitutionality of

a county board of commissioners’ attempt to amend an act of the

General Assembly. Id. at 92-95 (1). In making that determination,

we rejected the county’s argument that the plaintiffs’ interest in

having their government follow the law was insufficient and that the

plaintiffs needed to show the violation of a private right, a

requirement to raise a constitutional challenge to a state statute,

which is based on the respect and deference we must afford to the

General Assembly, as a co-equal branch of government. See id. at

92-93 (1). We concluded that this requirement did not apply to

challenges to legislative action of a county commission, because the

“county commission is not a part of State government, much less a

branch co-equal with the State’s judicial branch.” Id.

Neither SCV nor Floam held that the community stakeholder

theory of standing applied to suits against the State or its agencies.

26 The Plaintiffs argue that the reasoning underpinning both SCV and

Floam support community-stakeholder standing here because they

are seeking to “enforce a public duty” by ensuring that local election

officials will “follow the law” as set forth in the Election Code. See

SCV, 315 Ga. at 60-61 (2) (c) (iii). We disagree.

The Plaintiffs point to no authority other than SCV and Floam

to support their argument, and neither case supports standing for

claims against the State. See SCV, 315 Ga. at 61 (2) (c) (iii) n.19

(“Both our reasoning and our holding regarding [community-

stakeholder] standing are limited to suits against local

governments.”); see also Schoicket v. State, 312 Ga. 825, 832 (1) (865

SE2d 170) (2021) (“[A] decision’s holding is limited to the factual

context of the case being decided and the issues that context

necessarily raises.” (citation and punctuation omitted)). And, as

explained below, the rationale underlying community-stakeholder

standing shows that it does not extend to claims against the State

of the sort at issue here, at least as these plaintiffs have presented

them.

27 The community-stakeholder standing rule traces its roots to

taxpayer suits against municipal corporations (i.e., cities) based on

the corporate form of the cities; this Court equated municipal

taxpayers to private shareholders of private corporations and thus

concluded that a taxpayer should have the same ability as private

shareholders to sue the corporation to prevent illegal acts that would

cause damage to the corporation in which the taxpayer was a

stakeholder. See SCV, 315 Ga. at 55 (2) (c) (i). Specifically, in Keen

v. Mayor and Council of Waycross, 101 Ga. 588 (29 SE 42) (1897),

this Court reasoned that taxpayers of a municipality and private

corporation shareholders were similarly situated and were similarly

interested in preserving the corpus, such that taxpayers suing their

city should have the same ability (standing) as private shareholders

suing their company had to protect those interests and prevent any

illegal acts that would otherwise cause loss and expense that

taxpayers would ultimately bear. Id. at 593 (3); see also Phoenix

Airline Servs., Inc. v. Metro Airlines, Inc., 260 Ga. 584, 586 (1) (397

28 SE2d 699) (1990) (in a shareholder derivative suit, a shareholder

brings a suit on behalf of the corporation for harm done to it).

This Court almost immediately extended this type of

shareholder derivative suit against municipal corporations to suits

against county governments. See, e.g., Koger v. Hunter, 102 Ga. 76,

79-80 (29 SE 141) (1897) (trial court erred in denying taxpayers’

petition to enjoin county commissioners from allegedly

misappropriating county funds). That extension, regularly applied,

became part of a consistent and definitive understanding of

Georgia’s judicial power that was eventually incorporated into the

1983 Constitution’s Judicial Power Paragraph. See SCV, 315 Ga. at

55-61 (2) (c). But this rationale has never been expressly extended

to suits against the State such that it would have become baked into

the Judicial Power Paragraph.

SCV noted that the principle that would become recognized as

community-stakeholder standing appears to have been applied to

suits against the State in two instances. See 315 Ga. at 58-59 (2) (c)

(ii), 60 (2) (c) (iii) (citing Arneson v. Bd. of Trustees of the Employees’

29 Retirement System of Ga., 257 Ga. 579, 579-580 (1)-(3) (361 SE2d

805) (1987), and Head v. Browning, 215 Ga. 263, 266-267 (2) (109

SE2d 798) (1959)).7 But those cases applied a type of community-

stakeholder standing without engaging in any reasoning.

Importantly, neither Arneson nor Head considered precedent

existing at the time (and that remains good law today) that “one

cannot raise the question of constitutionality of a statute, or of the

action of an administrative agency acting under statutory power, as

violative of constitutional rights, unless the interest or rights of such

complaining party are affected by the statute or the action of the

agency.” West v. Housing Auth. of City of Atlanta, 211 Ga. 133, 136

(1) (b) (84 SE2d 30) (1954); see also Davis v. Jackson, 239 Ga. 262,

264 (236 SE2d 613) (1977).

7 These cases have also been abrogated on other grounds, but they are

nevertheless correct to the extent they note the general principle that taxpayers have standing to seek enforcement of a public duty by way of some viable cause of action. See SJN Properties, LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 799 (2) (b) (ii) n.7 (770 SE2d 832) (2015) (after noting precedent abrogating the ability to prosecute injunction actions against state officials, stating that “to the extent these cases simply confirmed a taxpayer’s standing to seek to enforce a public duty by way of some viable cause of action, they remain good law”). 30 Because Arneson and Head are clear outliers in the context of

challenges to State actions, they did not rebut the general

requirement that a plaintiff must assert the violation of his own

individual right, as opposed to a community-stakeholder right, to

challenge actions by the State. The Plaintiffs have identified no case

in which we even suggested, much less held, that the rationale

underlying shareholder derivative suits — rooted in doctrine about

private corporations — would apply to suits against the State. And

because nothing else that was said in SCV or Floam would support

extending community-stakeholder standing to the challenge here,

the Plaintiffs failed to establish that those cases, by themselves,

establish community-stakeholder standing.8

Having concluded that the plaintiff organizations do not have

standing under theories of organizational or associational standing

that they assert and that none of the plaintiffs have standing under

8 Our rejection of the Plaintiffs’ community-stakeholder standing is based purely on the arguments raised here and should not be read as foreclosing the possibility that community-stakeholder standing might apply to some challenges to certain state actions better suited to the rationale for such standing. 31 community-stakeholder status, we turn to evaluate whether any

individual plaintiffs have standing to challenge any of the rules.

(d) The individual plaintiffs have standing as voters to

challenge five rules that threaten the right to vote.

The trial court concluded that the individual plaintiffs, Turner

and Hall, have standing as voters to challenge all seven rules. We

conclude that, as voters, they have standing to challenge five of the

seven rules — the Reasonable Inquiry Rule, the Examination Rule,

the Hand Count Rule, the Drop Box ID Rule, and the Drop Box

Surveillance Rule.

The right to vote is fundamental; it is necessary to preserve our

republic and our liberty.9 See Favorito v. Handel, 285 Ga. 795, 796

(1) (a) (684 SE2d 257) (2009) (“The right to vote is fundamental,

forming the bedrock of our democracy.” (citation and punctuation

omitted)). As we observed many years ago, “[i]t can not be said that

9 The right to vote is enshrined in the Georgia Constitution. See Ga.

Const. of 1983, Art. II, Sec. I, Par. II. Accordingly, we need not consider federal authority in our analysis.

32 [the right of a citizen to vote] is not a personal right, the denial of

which would be an injury as an infringement of that right.” Manning

v. Upshaw, 204 Ga. 324, 327 (2) (49 SE2d 874) (1948). An

infringement of the right to vote occurs both when a voter is

prevented from casting a ballot and when a properly cast vote is not

counted. See Thompson v. Willson, 223 Ga. 370, 373 (2) (155 SE2d

401) (1967) (“A refusal to count his vote completely ignores it and is

tantamount to a refusal to allow him to cast it.”).

Because voting is a private right, a voter has standing to

challenge a rule on the basis it violates his right to vote, which

includes the right to have his vote counted. See Wasserman, 320 Ga.

at 631-632 (II) (A) (1) (a) (i) (noting that it has been a “core function”

of the courts to resolve disputes about private rights, including the

infringement of voting rights); SCV, 315 Ga. at 52 (2) (b)

(historically, the violation of a private right was sufficient to invoke

the judicial power of state courts); Barrow v. Raffensperger, 308 Ga.

660, 667 (2) (b) (842 SE2d 884) (2020) (voter had standing to

challenge the Secretary of State’s decision to cancel an election);

33 Manning, 204 Ga. at 327 (2) (voter had standing to challenge the

constitutionality of an act that allowed mayor and councilmembers

to refuse to hold an election). Such standing is known as voter

standing.

On the whole, five of the SEB rules at issue implicate an

individual’s right to vote or have his vote counted. There are two

rules — the Drop Box ID Rule and the Drop Box Surveillance Rule

— that govern the delivery of absentee ballots and limit the ability

to deliver absentee ballots. The Drop Box ID Rule requires the

presentation of photo identification for certain people who are hand-

delivering the absentee ballot of another, where the corresponding

statute does not require this and where identification would not be

required for that person to mail the ballot of another. See Ga. Comp.

R. & Regs., r. 183-1-14-.02 (18). And the Drop Box Surveillance Rule

provides that absentee drop boxes that are not under constant video

surveillance shall be removed and prohibited from use. See Ga.

Comp. R. & Regs., r. 183-1-14-.02 (19). There is some risk that a

voter who submitted an absentee ballot in violation of either rule,

34 either because the person delivering the ballot lacked a photo ID or

because the drop box was not under video surveillance, would have

his ballot rejected and, as a result, his right to vote would be

denied.10

Three other rules — the Reasonable Inquiry Rule, the

Examination Rule, and the Hand Count Rule — concern the

tabulation and certification of election results. By their very nature,

these rules implicate the proper counting of cast votes. For example,

under the Hand Count Rule, election officials may take “corrective

measures” if there is an inconsistency between the hand count ballot

totals and the number generated from the tabulation tape from

electronic scanners.11 See Ga. Comp. R. & Regs., r. 183-1-12-.12 (a)

10 In their declarations, Hall and Turner stated that they were uncertain

as to the method they would vote in the future, leaving open the possibility that they would exercise their right to vote by absentee ballots. Thus, this is not a situation where a plaintiff was unable to show that the challenged State action was harmful to his individual rights. Compare Perdue v. Lake, 282 Ga. 348, 348-350 (2) (647 SE2d 6) (2007) (voter lacked standing to challenge a statute requiring a photo ID as an unconstitutional restriction on her right to vote because, at the time she filed her complaint, she could have voted in person without the need to show a photo ID and she had made no assertion that she lacked an acceptable form of a non-photo ID). 11 Absentee ballots are also scanned. See OCGA § 21-2-386 (a) (2) (A)

(detailing process for opening and scanning absentee ballots). 35 (5). And, before election officials certify an election, the Reasonable

Inquiry Rule and the Examination Rule would allow local election

officials to conduct a broad inquiry into election results, including by

“examining all election related documentation,” before certifying

results, potentially permitting them to refuse to certify elections,

even past statutory requirements, until the election official is

satisfied that the results are “complete and accurate.” See Ga. Comp.

R. & Regs., rr. 183-1-12-.02 (1) (c.2), 183-1-12-.12 (a) (.1) (6).

Although it is not certain that these rules would actually lead to the

rejection of votes that have been cast, the threatened violation of a

plaintiff’s rights is sufficient to establish standing.

The State argues that the individual plaintiffs’ claimed rights

violations are merely speculative concerns or uncertainties

premised entirely on hypotheticals, not on anything imminent or

concrete. Given that, at the time the amended complaint was filed

in this case, the SEB had already adopted the rules being challenged

and those rules were to apply to the November 2024 election, the

State does not explain why the threat to the rights asserted by the

36 Plaintiffs was not impending at the time the complaint was filed and

continues to be so given upcoming elections.

The State also does not grapple with our long-standing

precedent that an infringement on the private right to vote is an

injury sufficient to establish standing for a voter to challenge the

constitutionality of an act of the General Assembly. See Manning,

204 Ga. at 327 (2). And if the violation of a private right is sufficient

to challenge the constitutionality of a statute, then it is certainly

sufficient to challenge the constitutionality of an agency’s action.

Under this precedent, we can also easily reject the State’s argument

that the individual plaintiffs have not established an individualized

injury and thus do not have standing because they failed to

distinguish any harm that they might suffer beyond that which the

voting public at large might suffer. See Camp v. Williams, 314 Ga.

699, 708 (879 SE2d 88) (2022) (“[W]e have held in other contexts

that voting rights are individually cognizable for litigation purposes,

even if they are shared among the general public.” (citing Manning;

emphasis in original)).

37 (e) Voter standing has not been established to challenge the poll

watcher and daily reporting rules since they do not touch on the right

to cast votes or have them counted.

There are two rules — the Poll Watcher Rule and the Daily

Reporting Rule — that do not concern the casting or counting of

votes, so the individual plaintiffs do not have voter standing to

challenge these rules. A brief overview of these rules shows why.

For general elections and run-offs, OCGA § 21-2-408 (b)

provides that poll watchers are selected by political parties, political

bodies, independent candidates in partisan elections, and

candidates in nonpartisan elections. See also OCGA § 21-2-408 (a)

(in primary elections, parties select poll watchers from nominations

submitted by candidates). For counties or municipalities using

direct recording electronic voting systems or optical scanning

systems, the Election Code provides that selected poll watchers are

allowed to be in locations within the tabulation center that are

38 designated by the superintendent,12 including “the check-in area, the

computer room, the duplication area, and such other areas as the

superintendent may deem necessary to the assurance of fair and

honest procedures in the tabulating center.” OCGA § 21-2-408 (c).13

The Poll Watcher Rule gives additional guidance for locations using

optical scanning equipment, stating that “designated places” include

areas where the “tabulation processes are taking place including but

12 A “superintendent” is defined as:

(A) Either the county board of elections, the county board of elections and registration, the joint city-county board of elections, or the joint city-county board of elections and registration, if a county has such; (B) In the case of a municipal primary, the municipal executive committee of the political party holding the primary within a municipality or its agent or, if none, the county executive committee of the political party or its agent; (C) In the case of a nonpartisan municipal primary, the person appointed by the proper municipal executive committee; (D) In the case of a municipal election, the person appointed by the governing authority pursuant to the authority granted in Code Section 21-2-70; and (E) In the case of the State Election Board exercising its powers under subsection (f) of Code Section 21-2-33.1, the individual appointed by the State Election Board to exercise the power of election superintendent. OCGA § 21-2-2 (35). 13 Moreover, poll watchers are to be “granted access to polling places,

advance voting locations, tabulation centers, and locations where absentee ballots are being verified, processed, adjudicated, and scanned and may be permitted behind the enclosed space for the purpose of observing the conduct of the election and the counting and recording of votes.” OCGA § 21-2-408 (d). 39 not limited to provisional ballot adjudication of ballots, closing of

advanced voting equipment, verification and processing of mail in

ballots, memory card transferring, regional or satellite check in

centers and any election reconciliation processes as the election

superintendent may deem necessary[.]” See Ga. Comp. R. & Regs.,

r. 183-1-13-.05.

The Daily Reporting Rule is also based on a statutory

provision, with OCGA § 21-2-385 (e) generally providing that each

county board of registrars (or municipal absentee ballot clerk) shall

make daily reports of the number of persons who have voted by

absentee ballots or at an advance voting site. For purposes of our

standing discussion here, the Daily Reporting Rule largely tracks

the statute. See Ga. Comp. R. & Regs., r. 183-1-12-.21.

Unlike the voting-related rules discussed elsewhere in this

opinion, neither the Poll Watcher Rule nor the Daily Reporting Rule

impacts the manner in which a vote is cast or collected or affects the

counting of votes. Poll watchers observe and are prohibited from

interfering with election activities at the polls. See OCGA § 21-2-408

40 (d). Likewise, the Daily Reporting Rule merely requires a summary

of the votes that have already been cast, but in no way affects the

counting of those votes. Because the Plaintiffs cannot establish that

these two rules would ever infringe on the right to vote, they cannot

rely on voter standing to challenge these two rules. And the

individual plaintiffs identify no other private right that those two

rules violate.14

(f) We vacate the trial court’s order to the extent it found that

Hall had standing as a member of the Chatham County Board of

Elections.

Hall also argues that he has standing based on interests of a

nature that we have not previously addressed and were not

considered according to the proper standard below. We therefore

vacate and remand for the trial court to consider it in the first

instance.

14 The Plaintiffs seemed to concede as much at oral argument, relying

more on a theory of community-stakeholder standing to challenge these two rules, and we have already rejected this theory above. 41 Hall argues that he has standing to challenge all the rules

based on his official role as a member of the Chatham County Board

of Elections. In support of his claim, Hall notes his concern that he

might misinterpret or fail to follow his duties as an election official

because he was unsure whether he should follow the Election Code

or the SEB rules, and notes that he took an oath of office to uphold

the law and that he would face legal consequences if he took the

wrong action as an election official. In concluding that Hall had

standing on this basis, the trial court found that “Hall, in his

individual capacity, is concerned about his role as a member of the

Chatham County Board of Elections regarding whether to follow the

SEB’s rules or the Election Code,” and that absent clarification on

this issue, Hall would expose himself to legal liabilities.

But, as we explain below, a need for certainty is a concept that

pertains to a plaintiff’s ability to pursue declaratory relief; that is

not also a basis for constitutional standing. The trial court’s focus on

Hall’s statutory standing regarding declaratory relief left

unaddressed his claim of constitutional standing on the basis of his

42 role as a member of the Chatham County Board of Elections. See

SCV, 315 Ga. at 64 (2) (d) (distinguishing statutory standing from

constitutional standing). Although we might accept Hall’s

declaration that he faces some personal harm if he were to take the

wrong action with respect to the challenged rules, our recent

precedent reminds us that factual harm, by itself, generally is not

sufficient under Georgia law to establish constitutional standing.

Whether and to what extent Hall can establish constitutional

standing in this individual capacity lawsuit based on his affiliation

with the board is not an issue that was addressed below, so we

vacate and remand on this issue for the trial court to conduct that

analysis in the first instance.15

15 In considering the extent to which Hall may have established standing

based on his interests as a board member, some novel and difficult issues may require resolution. For example, can he litigate his interests as a board member in a lawsuit brought in his individual capacity? Would he have to identify a private right of his own at issue, or does his affiliation with the board — as a governmental entity — allow him to dispense with that requirement? We note these sorts of issues not to say they would definitely require resolution (much less to suggest what that resolution would be), but merely to illustrate the kind of things that may need to be considered as this is litigated below. 43 In sum, EVA and the Plaintiff-Intervenors do not have

standing to challenge any of the rules because they have not

established that any rule violates any of those organizations’ private

rights, and they cannot assert the rights of others under theories

advanced here. The individual voters, Hall and Turner, have

standing to challenge five rules based on their status as voters, but

they do not have voter standing to challenge two other rules because

there is no violation of that private right.

3. Plaintiffs’ challenges to the SEB rules are not too vague.

The Defendant-Intervenors argue that the Plaintiffs’

constitutional claims are too vague to be justiciable,16 because they

are unclear whether they seek a judgment declaring all or just some

of the SEB’s rulemaking powers unconstitutional. We disagree.

In support of their argument that the Plaintiffs’ claims are too

vague to be justiciable, the Defendant-Intervenors cite Wallin v.

State, 248 Ga. 29 (279 SE2d 687) (1981), which stated:

16 The Defendant-Intervenors took no position on the Plaintiffs’ constitutional standing in their primary brief on appeal. 44 In order to raise a question as to the constitutionality of a law, at least three things must always be shown: (1) The statute or the particular part or parts of the statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute, or some designated part of it, violates such constitutional provision.

Id. at 30 (1) (citation and punctuation omitted).

Even if that standard extends beyond challenges to statutes

and applies also to challenges to agency actions (a question we need

not and do not decide), that standard is satisfied here. Although the

Plaintiffs alleged in their complaint that all the SEB’s rules violated

the nondelegation doctrine under the Georgia Constitution’s

Separation of Powers Provision, citing several cases construing that

provision, their specific counts for relief focused mostly on seeking a

declaration that the seven rules were unconstitutional under

nondelegation principles and contrary to the Election Code.

To the extent the Plaintiffs requested that all of the SEB’s

other rules be declared unconstitutional or sought to enjoin all of the

SEB’s rules, this request did not render the entire complaint too

45 indefinite. The Plaintiffs’ request may have been broad, but it was

clear. Even if the broadness of their initial request made their claims

too vague to be justiciable, subsequent actions clarified the

Plaintiffs’ challenge. In a pretrial order, all the parties agreed that

the main issues to be tried were whether the seven rules on appeal

were contrary to the Election Code or violated Georgia’s

nondelegation doctrine. The trial court was not confused about what

the Plaintiffs were requesting. On the first page of its order, the trial

court noted that the Plaintiffs were challenging the seven specific

rules that were identified in the complaint, as amended. Thus, even

if the Plaintiffs had requested overly broad relief initially, the trial

court did not consider or grant such relief. As a whole, then, the

Plaintiffs’ complaint states what rules it challenges (at least as to

the seven rules at issue on appeal), the provision of the Georgia

Constitution that it claims was violated (the Separation of Powers

Provision), and how the rules violated that provision or were

otherwise unauthorized by law. Thus, contrary to the Defendant-

46 Intervenors’ argument, the complaint was not too “vague” or

“indefinite” to preclude consideration of the rules at issue on appeal.

2. Availability of declaratory relief was proper.

The State argues that the trial court should not have granted

declaratory relief because the Plaintiffs presented nothing more

than “uncertainty” and “concern” that the challenged rules might

cause some future harm and because they failed to allege that they

risked taking some undirected future action that would jeopardize

their interests. We disagree.

Under the Declaratory Judgment Act [(the “Act”)], the courts of this State are authorized to declare rights and other legal relations of any interested party petitioning for such declaration in cases of actual controversy and in any civil case in which the ends of justice so require.

Floam, 319 Ga. at 96 (2) (cleaned up; quoting OCGA § 9-4-2 (a), (b)).

The plain text of the Act provides that “its purpose ‘is to settle and

afford relief from uncertainty and insecurity with respect to rights,

status, and other legal relations.’” Id. (quoting OCGA § 9-4-1). The

Act is not meant to enforce accrued rights, as the Act does not

replace existing remedies. See Cohen v. Reisman, 203 Ga. 684, 684

47 (1) (48 SE2d 113) (1948). Nor is the Act designed to resolve mere

disagreement about “the abstract meaning or validity” of a statute,

rule, or ordinance. See Leitch v. Fleming, 291 Ga. 669, 670 (1) (732

SE2d 401) (2012). Instead, its purpose is to remove the cloud of

uncertainty “with regard to the propriety of some future act or

conduct, which is properly incident to his alleged rights and which

if taken without direction might reasonably jeopardize his interest.”

Baker v. City of Marietta, 271 Ga. 210, 214 (1) (518 SE2d 879) (1999)

(citation and punctuation omitted). When a declaration of rights

would not direct the plaintiff’s future conduct or would merely

determine rights that had already accrued, relief under the Act is

unavailable. See Floam, 319 Ga. at 97-99 (2) (collecting cases).

As discussed above, the five rules before us now concern how

votes can be cast or delivered and how they are to be counted. In

their sworn declarations, the individual plaintiffs stated that they

are uncertain whether the new rules would lead to a rejection or

non-certification of their votes. They also stated that they are

uncertain how or whether to vote based on the challenged rules. This

48 type of uncertainty and the need for guidance is sufficient to state a

claim for declaratory relief. As discussed above, there is a possibility

that certain absentee ballots will not be delivered appropriately and

so would be rejected, either because no identification is provided by

the courier or because a ballot is placed into a drop box that was not

under video surveillance. Thus, the voters have shown the need for

a determination as to the legality of these rules, along with others

affecting the counting of votes.

The State argues that declaratory relief was improper because

the Plaintiffs “did not state that the rules actually did infringe upon

their right to vote or have their votes counted.” But “[a] request for

declaratory relief is a request for prospective relief — relief from the

threat of wrongful acts and injuries yet to come.” Floam, 319 Ga. at

99 (2) (citing Lathrop v. Deal, 301 Ga. 408, 434 (801 SE2d 867)

(2017); punctuation omitted). If a voter were required to prove with

certainty that a particular rule infringed upon his right to vote, that

would require an election to have actually occurred, which would

also render declaratory relief unavailable, as that would involve a

49 determination of rights that had already accrued. See Floam, 319

Ga. at 97 (2). Such an outcome would make a voter’s ability to seek

declaratory relief under Paragraph V completely illusory.

The Plaintiffs’ sworn statements are sufficient to assert a claim

for declaratory relief because the voters faced a risk of taking future

undirected action that would nullify their votes. See SJN Properties,

LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 802 (2) (b) (iii)

(770 SE2d 832) (2015) (“The proper scope of declaratory judgment is

to adjudge those rights among parties upon which their future

conduct depends.” (citation omitted)).

5. The trial court erred in determining that the SEB rules

violated the Federal Elections Clause.

The Defendant-Intervenors and the State (collectively, the

“Appellants”) argue that the trial court erred in concluding that the

SEB rules violated the Federal Elections Clause of the United States

Constitution, which provides that the “Times, Places and Manner of

holding Elections for Senators and Representatives shall be

prescribed in each State by the Legislature thereof[.]” U.S. Const.,

50 Art. I, § 4, cl. 1. We agree.

In the trial court, the Plaintiffs did not demand that the SEB

rules be invalidated as violating the Federal Elections Clause and

tellingly do not defend on appeal the trial court’s sua sponte grant

of relief on this ground. In granting relief on this basis, the trial

court relied primarily on concurring and dissenting opinions in

various United States Supreme Court decisions, but it failed to

apply binding precedent from that Court itself, which squarely

rejects the notion that a state legislature cannot ever delegate any

election “time, place, manner” regulatory authority to another state

body. See, e.g., Moore v. Harper, 600 U.S. 1, 25 (143 SCt 2065, 216

LE2d 729) (2023) (“[A]lthough the [federal] Elections Clause

expressly refers to the ‘Legislature,’ it does not preclude a State from

vesting congressional redistricting authority in a body other than

the elected group of officials who ordinarily exercise lawmaking

power.”); see also Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm., 576 U.S. 787 (135 SCt 2652, 192 LE2d 704) (2015) (rejecting

Federal Elections Clause challenge to a state voter initiative to

51 remove redistricting authority from the state legislature and vest

that authority with an independent commission). Thus, the trial

court erred in finding that the SEB rules violated the Federal

Elections Clause.

6. Four of the challenged rules do not survive a proper

nondelegation analysis, but one does.

The Appellants argue that the trial court erred in concluding

that the challenged rules violate the nondelegation doctrine of the

Georgia Constitution. 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. The

Appellants point to this Court’s decision in DOT as an “example” of

what constitutes “sufficient guidelines.”17 The Appellants are

17 The Appellants also argue that the trial court erred by not considering

the “threshold issue” of whether the SEB’s exercise of rulemaking authority under the Election Code was the exercise of “legislative power.” Specifically, the Appellants, citing some federal caselaw, argue that because the SEB

52 correct. If DOT applies, they win, because the authorizing statutes

are most naturally understood as conferring broad, unguided

rulemaking authority similar to that approved by DOT. But, as laid

out below, a proper understanding of the Georgia Constitution’s

regulates the conduct of executive officials, rather than private citizens, the SEB is not wielding legislative power and “there is no delegation problem.” But Appellants’ distinction between laws that regulate private conduct and laws that regulate the conduct of executive officials finds no basis in our caselaw’s historic understanding of the legislative power that the Georgia Constitution vests only in the General Assembly. We have long held that when it comes to the power of the General Assembly, the “people have clothed the Legislature with all power, except where they have made limitations[.]” Nicholas v. Hovenor, 42 Ga. 514, 517 (1871); see also Plumb v. Christie, 103 Ga. 686, 693-694 (30 SE 759) (1898); Sears v. State of Ga., 232 Ga. 547, 553 (3) (208 SE2d 93) (1974); McInerney v. McInerney, 313 Ga. 462, 467 (2) (b) (870 SE2d 721) (2022). “Unlike the United States Congress, which has only delegated powers[,]” Sears, 232 Ga. at 553 (3), the General Assembly “can do all things not prohibited by the constitution,” Plumb, 103 Ga. at 694, which includes the power to pass laws regarding government officials. See DeKalb County Sch. Dist. v. Ga. State Bd. of Ed., 294 Ga. 349, 354 (1) (a) (751 SE2d 827) (2013) (“[T]he notion that the power to provide for the removal of public officers — even constitutional officers — inheres in the legislative power finds support in our history and precedents.”). If we were to accept the Appellants’ framing that the “legislative” power of the General Assembly is limited to regulating private conduct, entire volumes of Georgia’s Code would be void, as the General Assembly would have exceeded its constitutional authority in those instances. See, e.g., OCGA §§ 45- 1-1 to 45-25-7 (“Public Officers and Employees”). That construction is obviously untenable. See Johnson v. State, 169 Ga. 814, 821 (1) (152 SE 76) (1930) (noting that this Court “should hesitate long before holding unconstitutional the statutes” at issue because that “would strike down a large body” of the law); Goldsmith v. Rome R. Co., 62 Ga. 473, 478 (1) (1879) (noting that this Court should be hesitant to interpret the constitution in a manner that “would, in effect, obliterate from the statute book many of our best and most wholesome laws”). 53 nondelegation doctrine demonstrates that DOT was wrongly

decided and must be overturned. Georgia’s nondelegation doctrine

properly understood counsels against reading the authorizing

statutes as broadly as we would otherwise read them. And once we

have read those statutes narrowly, they do not authorize four of the

five rules that the individual plaintiffs have standing to challenge.

(a) Our caselaw provides a three-step framework for analyzing

nondelegation challenges.

The nondelegation doctrine of the Georgia Constitution is

rooted in the separation of powers. See Ga. Const. of 1983, Art. I,

Sec. II, Par. III (“The legislative, judicial, and executive powers shall

forever remain separate and distinct; and no person discharging the

duties of one shall at the same time exercise the functions of either

of the others except as herein provided.”).18 Indeed, “[t]o permit the

18 See also Ga. Const. of 1983, Art. III, Sec. I, Par. I (“The legislative

power of the state shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives.”); Ga. Const. of 1983, Art. V, Sec. II, Par. I (“The chief executive powers shall be vested in the Governor. The other executive officers shall have such powers as may be prescribed by this Constitution and by law.”); Ga. Const. of 1983, Art. VI, Sec. I, Par. I (“The judicial power of the state shall be vested exclusively in the following classes of courts . . . .”). 54 General Assembly to abdicate and transfer to administrative

agencies of government essential legislative functions, would strike

down our constitutional system, and inaugurate the police state,

condemned by every advocate of individual liberty and freedom.”

Glustrom v. State, 206 Ga. 734, 740 (58 SE2d 534) (1950). This

principle is “essential to the very foundation of our system of

government[.]” McCutcheon v. Smith, 199 Ga. 685, 690-691 (2) (35

SE2d 144) (1945). Because the nondelegation doctrine is of a

constitutional dimension and because the constitutional provisions

from which the doctrine is derived were materially identical through

multiple previous constitutions, our historic caselaw is critically

important to understanding the nondelegation doctrine’s current

scope. See Atlantic Games, Inc. v. Ga. Lottery Corp., 321 Ga. 267,

274 (3) n.9 (912 SE2d 618) (2025) (Peterson, P. J., concurring in the

denial of certiorari) (tracing the history of the Separation of Powers

Provision and the judicial, legislative, and executive vesting clauses

and noting no material change in those provisions as relevant to the

nondelegation doctrine); see also Elliott v. State, 305 Ga. 179, 184

55 (II) (B) (824 SE2d 265) (2019); SCV, 315 Ga. at 62 (2) (c) (iii).

Several types of nondelegation challenges may arise, but this

case involves the prototypical type: an alleged improper delegation

of legislative authority to an executive agency.19 A review of our

caselaw distills Georgia’s nondelegation doctrine into a three-step

framework. See Atlantic Games, 321 Ga. at 269 (2) (Peterson, P. J.,

concurring in the denial of certiorari). First, we determine whether

19 Nondelegation issues can arise in a variety of contexts, including when

any one of the three branches of government attempts to confer its power on another branch of government, see, e.g., Franklin Bridge Co. v. Wood, 14 Ga. 80, 84 (5) (1853) (nondelegation challenge to statute allegedly delegating legislative authority to courts), Campbell v. Farmer, 223 Ga. 605, 607 (157 SE2d 276) (1967) (nondelegation challenge to statute allegedly delegating legislative power to tax to an executive branch agency), and Ogletree v. Dozier, 59 Ga. 800, 801-802 (1877) (nondelegation challenge to statute authorizing county commissioners to hire out prisoners allegedly in contravention of the court’s authority to sentence convicted defendants and the Governor’s power to commute penalties), and when a branch of government attempts to confer its power on an entity outside the government, see, e.g., Rogers v. Med. Assn. of Ga., 244 Ga. 151, 153 (2) (259 SE2d 85) (1979) (nondelegation challenge to statute allegedly delegating to a private organization the power to appoint members to a state board). The Appellants argue that the SEB’s “unique structure” — i.e., that the majority of the SEB members are appointed by the legislature (see OCGA § 21- 2-30 (a), (c)) — makes this case a poor vehicle for answering “the broader question of whether executive branch agencies can wield legislative power subject to legislative guidelines.” But the Appellants do not explain how this “uniqueness” prevents us from considering the nondelegation issues presented in this case where the Appellants have conceded, and it is undisputed, that the SEB is an “executive branch agency.” 56 the General Assembly actually delegated the authority at issue to

the executive branch agency. See id. Second, we determine whether

the General Assembly possessed the allegedly delegated power. See

id. Third, we assess whether the delegation was permissible. See

id.20

Beginning with the first step, we ask whether the General

Assembly, either expressly or by necessary implication, actually

20Although we characterize steps one and two as part of the nondelegation analysis, they are not nondelegation issues in the traditional sense. A determination that the legislature did not in fact delegate the authority in question is not a determination that a regulation violates the nondelegation doctrine so much as a conclusion that the regulation is invalid because it exceeds the agency’s authority. Similarly, a determination that the legislature lacked the constitutional authority to do that which was delegated is not itself a delegation issue but rather a legislative act in excess of constitutional authority. Nevertheless, our caselaw consistently addresses these two steps to avoid answering the often more difficult question of whether the alleged delegation was permissible. See, e.g., Premier Health Care Invs., LLC v. UHS of Anchor, LP, 310 Ga. 32, 49-54 (3) (f) (849 SE2d 441) (2020); HCA Health Servs. of Ga., Inc. v. Roach, 265 Ga. 501, 502-503 (2) (458 SE2d 118) (1995); City Council of Augusta v. Mangelly, 243 Ga. 358, 361-362 (1) (254 SE2d 315) (1979). That is not to say that step two must always come before step three. While step one is a natural precursor to steps two and three (because, as explained more fully below, step one is purely a question of statutory construction and steps two and three may involve difficult constitutional questions), we can imagine a case where determining whether the legislature had the power to act is more difficult than determining whether the guidelines provided with the delegation are sufficient, such that we would decide step three without first deciding step two. 57 purported to delegate the powers exercised by the executive branch

agency. See, e.g., Bentley v. State Bd. of Med. Exam’rs, 152 Ga. 836,

838 (111 SE 379) (1922); R.R. Comm. of Ga. v. Macon Ry. & Light

Co., 151 Ga. 256, 258 (106 SE 282) (1921); see also Atlantic Games,

321 Ga. at 269 (Peterson, P. J., concurring). Because an agency is “a

mere creature of . . . statute, brought into being by the legislature[,]”

it has “no inherent powers” and “no lawful right to act except as

directed by law.” New Amsterdam Cas. Co. v. McFarley, 191 Ga. 334,

335-336 (12 SE2d 355) (1940); see also Camp, 314 Ga. at 709 (Bethel,

J., concurring) (“[F]or a government entity whose authority on the

relevant point is purely a creature of statute, the absence of

statutory authority is the absence of legal authority to act.”). As a

result, if a statute does not “expressly, or by necessary implication,”

grant the powers allegedly exercised, any purported delegation has

not actually occurred. Bentley, 152 Ga. at 838; see also North Fulton

Med. Ctr. v. Stephenson, 269 Ga. 540, 542-544 (501 SE2d 798) (1998)

(invalidating regulation because it conflicted with statute and

agencies cannot “enlarge the scope of, or supply omissions in, a

58 properly enacted statute[,]” “change a statute by interpretation,” or

“establish different standards within a statute that are not

established by a legislative body”); HCA Health Servs. of Ga., Inc. v.

Roach, 265 Ga. 501, 502-503 (2) (458 SE2d 118) (1995) (invalidating

agency’s regulation in excess of authority because agency had “no

constitutional authority to legislate”; its power was limited to the

performance of an administrative function: “to promulgate rules for

the enforcement of the General Assembly’s enactments”); Hunt v.

Glenn, 206 Ga. 664, 667 (58 SE2d 137) (1950) (The State Board of

Education, “as an administrative agency of the State . . . may make

rules and regulations which are in harmony with the purposes of the

law, but it is without authority to make any rule or regulation which

alters or limits the statute being administered.”).

Because step one is purely a question of statutory construction

and because steps two and three may require answering thorny

constitutional questions, constitutional avoidance often counsels in

favor of construing the statute narrowly at this step (if the statutory

text permits). See, e.g., Premier Health Care Invs., LLC v. UHS of

59 Anchor, LP, 310 Ga. 32, 49-54 (3) (f) (849 SE2d 441) (2020)

(construing statute narrowly to avoid interpreting statute as

delegating impermissible authority to the Department of

Community Health); Glustrom, 206 Ga. at 739-740 (resolving

nondelegation challenge by interpreting statute as not delegating

impermissible authority to the State Revenue Commissioner); R.R.

Comm., 151 Ga. at 258-259 (2) (concluding that in the absence of

express authority to discontinue or abandon service of a particular

railroad line, the Railroad Commission did not possess such implied

powers).

At step two, we consider whether the General Assembly was

vested with the power it allegedly delegated. “[I]t is elementary that

the General Assembly is without constitutional authority to create

an instrumentality of the State and clothe it with power . . . it does

not itself possess.” Agricultural Commodities Auth. v. Balkcom, 215

Ga. 107, 109 (1) (109 SE2d 276) (1959). In other words, if the

Constitution does not permit the General Assembly to exercise a

particular power, the General Assembly cannot confer that power on

60 an executive branch agency. See State Ports Auth. v. Arnall, 201 Ga.

713, 721 (1) (41 SE2d 246) (1947) (“[T]he State can not do indirectly

that which it can not lawfully do directly. If the State may not

lawfully do the things it is authorized to do under the act, then, of

course, it may not lawfully do them through a corporation which is

an instrumentality of the State exercising governmental

functions.”); City Council of Augusta v. Mangelly, 243 Ga. 358, 361-

362 (1) (254 SE2d 315) (1979) (same).

Finally, at step three, if a statute actually delegates authority

to an executive branch agency and the General Assembly possesses

the authority to legislate on the issue, we evaluate whether the

delegation was permissible. But characterizing this step as a

“delegation” issue is a bit misleading. The Constitution vests all

legislative power in the General Assembly, see Ga. Const. of 1983,

Art. III, Sec. I, Par. I, and the nondelegation doctrine requires all

powers vested in a branch of government to be exercised by that

branch, see Glustrom, 206 Ga. at 740. Thus, we repeatedly have held

that the General Assembly cannot actually “delegate” its vested

61 power to legislate to an executive branch agency. See Phillips v. City

of Atlanta, 210 Ga. 72, 74 (77 SE2d 723) (1953) (“[T]he Constitution

renders void any attempt to delegate legislative powers.”);

Bohannon v. Duncan, 185 Ga. 840, 842-843 (3) (196 SE 897) (1938)

(“The legislative department of the State, wherein the [C]onstitution

has lodged all legislative authority, will not be permitted to relieve

itself by the delegation thereof.”); Southern Ry. Co. v. Melton, 133

Ga. 277, 281 (65 SE 665) (1909) (“[W]hat is strictly and essentially

a legislative duty must be performed by the legislature.”); Phinizy v.

Eve, 108 Ga. 360, 361 (1) (33 SE 1007) (1899) (noting that any

attempt to confer legislative power on an entity outside the

legislature would violate the constitution); City of Savannah v.

Hussey, 21 Ga. 80, 89-90 (1857) (McDonald, J., concurring) (“The

Legislature can not delegate its power. The people in their

Constitution have declared where it shall exist, and by whom it shall

be exercised.”).

Although an executive branch agency cannot “legislate,” “it is

the function of the executive to implement specific legislation

62 enacted.” Greer v. State of Ga., 233 Ga. 667, 669 (1) (212 SE2d 836)

(1975); see also Ga. Const. of 1983, Art. V, Sec. II, Par. II (“The

Governor shall take care that the laws are faithfully executed . . . .”).

Thus, the inquiry at this third step is more appropriately framed as

whether “a statute delegates legislative authority (and thus is

impermissible) or merely legislates in a way that confers

responsibility on a particular executive branch agency to execute

that particular statute.” Atlantic Games, 321 Ga. at 272 (2) (C)

(Peterson, P. J., concurring); see also Franklin Bridge Co. v. Wood,

14 Ga. 80, 84 (5) (1853) (upholding statute challenged on

nondelegation grounds because “no Legislative power is delegated to

the Courts by the acts under consideration[,]” rather “[t]here is

simply a ministerial act to be performed — no discretion is given to

the Courts”).

For example, statutes comply with the nondelegation doctrine

when they are “complete” when they leave the hands of the

legislature, see Holcombe v. Ga. Milk Producers Confederation, 188

Ga. 358, 360, 365 (4) (3 SE2d 705) (1939), and merely delegate

63 responsibility to a particular administrative agency to implement

and enforce the statute within prescribed and judicially enforceable

limits. See, e.g., Bohannon, 185 Ga. at 842-843 (3) (the Milk-Control

Act did not unlawfully delegate legislative authority because it

“sufficiently fix[ed] the policy, general rules, and methods by which

the milk control board should exercise its functions”); see also

Holcombe, 188 Ga. at 360, 365-366 (4) (discussing the Milk-Control

Act referenced in Bohannon and noting that the statute was

“complete in its terms as to what the provisions of the law shall be”

and required that the board take into consideration specific

guidelines before acting); cf. Phinizy, 108 Ga. at 361-363 (1)

(upholding statute even though it gave the delegatee “broad

discretion” because that discretion was appropriately circumscribed

by specific statutory guidelines).

By contrast, statutes that fail to provide objective, judicially

enforceable guidelines that cabin the exercise of agency discretion

essentially give to the executive the core legislative power to say

what the law shall be and thus violate the nondelegation doctrine.

64 See, e.g., Sundberg v. State, 234 Ga. 482, 484 (216 SE2d 332) (1975)

(striking down statute that left “the authority to a ministerial officer

to define the thing to which the statute is to be applied” (citation and

punctuation omitted)); Howell v. State, 238 Ga. 95, 95-96 (230 SE2d

853) (1976) (striking down criminal statute directing that “[a]ny

person . . . who shall violate any of the rules or regulations

promulgated by the commission shall be guilty of a misdemeanor”

because it did not provide guidelines to limit the commission’s

discretion when passing such rules and regulations); Bibb County v.

Garrett, 204 Ga. 817, 826 (51 SE2d 658) (1949) (striking down

statute that “by its own terms undertook to vest in the board ‘full

power and authority, in its discretion, to inaugurate, constitute, and

administer . . . pension and/or insurance provisions and benefits’”

(punctuation omitted; emphasis in original)). Cf. Mitchell v.

Wilkerson, 258 Ga. 608, 608-609 (372 SE2d 432) (1988) (striking

down statute allowing any petitioner to specify grounds for recall

election as “impermissible delegation of legislative authority”

because the Constitution required the General Assembly to specify

65 such grounds and “this [was] a mandate which the General

Assembly [could] not escape”).

Thus, at the third step, the critical question is not whether a

statute gives an administrative agency discretion, but whether the

statute provides sufficiently objective, judicially enforceable

guidelines to direct and cabin the agency’s exercise of that

discretion. Compare Phinizy, 108 Ga. at 361-363 (1) (upholding

statute that gave judges the discretion to determine the method for

calculating the applicable tax because it provided judges with

specific guidelines, including “the subjects of taxation; when, how,

and by whom, and to whom, returns [we]re to be made; when and by

whom the rate must be calculated; and when and by whom and to

whom the money must be paid”) and Bohannon, 185 Ga. at 842-843

(3) (upholding statute that vested board with power to “fix maximum

and minimum prices” of milk because the statute fixed “the policy,

general rules, and methods” to be used by the board when making

this determination), with Moseley v. Garrett, 182 Ga. 810, 816 (187

SE 20) (1936) (striking down statute that failed to provide grand

66 jury with any guidelines to consider when determining the

compensation of a state officer) and Richter v. Chatham County, 146

Ga. 218, 220 (2) (91 SE 35) (1916) (striking down statute that

“simply authorized the county officers to establish a system of

registration” and did not provide any guidelines for the

establishment of that system).

(b) We overrule DOT.

The Appellants argue that the SEB’s rules do not violate the

nondelegation doctrine because the General Assembly expressly

conferred rulemaking powers on the SEB. Specifically, the

Appellants point to the SEB’s enabling legislation, which provides

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. In DOT, this Court upheld a statute delegating to

a state commission the power to approve the exercise of eminent

domain — long understood as part of the legislative power — if the

commission found such a taking was “reasonable, necessary, and in

the public interest.” 260 Ga. at 700-702. This Court held that the

“reasonable, necessary, and in the public interest” language was a

sufficient guideline to overcome a nondelegation challenge. Id. at

703-704 (1). The Appellants argue that, if the statutory requirement

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). The Appellants

are correct that under DOT, they would prevail. But DOT was

68 wrongly decided, and stare decisis does not preserve it.

DOT held that the statutory requirement that a taking be

“reasonable, necessary, and in the public interest” was a sufficient

guideline because we previously had held “that delegations of the

power of eminent domain such as that here contain[ed] sufficient

guidelines.” 260 Ga. at 703-704 (1) (citing State v. Moore, 259 Ga.

139 (376 SE2d 877) (1989); Eaves v. Harris, 258 Ga. 1 (364 SE2d

854) (1988); Williamson v. Housing Auth. of Augusta, 186 Ga. 673

(199 SE 43) (1938)). But none of these cases actually support the

proposition for which they were cited.

First, Moore and Eaves were decided after the adoption of the

1983 Constitution and do not substantively discuss our pre-1983

caselaw. See Moore, 259 Ga. at 142 (8), 142-143 (9); Eaves, 258 Ga.

at 5 (3). Therefore, Moore and Eaves do not control our

understanding of the original public meaning of the 1983

Constitution. See Floam, 319 Ga. at 94 (1) (noting that “cases post-

dating the 1983 Constitution” could not “change the meaning of the

Judicial Power Paragraph[,]” which had a “fixed meaning based on

69 consistent and definitive precedent”); see also Olevik, 302 Ga. at 235

(2) (c) (i) (“[T]here are few principles of Georgia law more venerable

than the fundamental principle that a constitutional provision

means today what it meant at the time that it was enacted.”). In any

event, Moore and Eaves are consistent with the historical

requirement for express limitations on the exercise of discretion, so

those cases cannot sanction the purported delegation at issue in

DOT. See Moore, 259 Ga. at 142 (8), 142-143 (9) (statute provided a

set of mandatory guidelines to consider before exercising discretion

to designate roads for oversized vehicles); Eaves, 258 Ga. at 2, 5 (3)

(statute permitted the Governor to suspend public official indicted

for felony “[i]f, and only if,” an appointed commission recommended

suspension after the official’s indictment for a felony). Second,

Williamson, the only pre-1983 case cited by DOT on this point, did

not discuss guidelines at all; thus, it cannot stand for the proposition

that “reasonable, necessary, and in the public interest” is a sufficient

guideline to cabin an agency’s power. 186 Ga. at 680-681 (4). In sum,

DOT was unsupported by any case it cited.

70 Even more fatal to DOT is that it was a clear deviation from

our historic precedent. DOT’s “guidelines” were amorphous and not

judicially enforceable. The statute at issue there allowed the agency

to take all actions that were “reasonable, necessary, and in the

public interest,” but these are not objective standards. As outlined

above, this Court has consistently struck down statutes that fail to

provide clear, objective guidelines that cabin an executive branch

agency’s exercise of discretion. See, e.g., Howell, 238 Ga. at 95-96;

Garrett, 204 Ga. at 826. Thus, DOT is irreconcilable with our historic

precedent. The dissent in DOT recognized as much. See 260 Ga. at

706 (Smith, P. J., dissenting) (“The purpose of the legislation, the

condemnation of public property, has not been expressly set out, the

limits of the commission are not marked, administrative officers

have not been designated, and the officers designated have not had

their power limited to the promulgation of rules within the scope of

the legislation designed to only administer and give effect to the law.

The act is legislative in character and fact, and it is an

unconstitutional delegation of authority under Art. III, Sec. I, Par. I

71 of the 1983 Constitution of the State of Georgia.”). In short, DOT

was wrongly decided.21

Before we overrule DOT, however, we must consider whether

stare decisis counsels us not to. As we have stated, “[w]hen we

consider whether to follow past decisions, stare decisis is the strong

default rule.” Johnson v. State, 315 Ga. 876, 887 (3) (885 SE2d 725)

(2023). “In rare cases, however, following a past decision would do

more harm to the rule of law than overruling it would.” Wasserman,

320 Ga. at 645 (II) (B) (1) (quoting Johnson, 315 Ga. at 887 (3);

punctuation omitted). In identifying those rare cases, we often

consider “the age of precedent, the reliance interests at stake, the

workability of the decision, and, most importantly, the soundness of

its reasoning.” Lane, 308 Ga. at 17 (1) (citation and punctuation

omitted). But the ultimate question is “whether getting the law right

21 We have previously questioned the soundness of DOT’s nondelegation

holding. See, e.g, Premier Health Care Invs., LLC, 310 Ga. at 49 (3) (f) n.18 (noting that “[s]ome of us have doubts about whether [DOT] was rightly decided,” but applying constitutional avoidance to construe statute to not present nondelegation problem).

72 is worth the cost to the rule of law of unsettling what had been

settled.” Wasserman, 320 Ga. at 647 (II) (B) (1).

We have already established that the reasoning in DOT was

unsound and a departure from prior precedent, counseling strongly

in favor of overruling it. See Olevik, 302 Ga. at 245 (2) (c) (iv)

(holding that “unsound” reasoning cuts “heavily in favor of

overruling” prior precedent); Wasserman, 320 Ga. at 646 (II) (B) (1)

(noting that “we have been less inclined to preserve holdings that . .

. are a departure from, dissonant with, inconsistent with, contrary

to, or an aberration in [ ] precedent in the same area, because

keeping such decisions can undermine rather than promote a system

of equal treatment under the law” (citations and punctuation

omitted)). As we have stated, we are more likely to reconsider

obviously wrong constitutional precedents because they are harder

for the People to abrogate and that means they are more likely to be

left in place with an attendant corrosive effect on the rule of law.

See, e.g., Olevik, 302 Ga. at 245 (2) (c) (iv) (“stare decisis carries less

weight when our prior precedent involved the interpretation of the

73 Constitution, which is more difficult than statutory interpretation

for the legislative process to correct”); Wasserman, 320 Ga. at 647

(II) (B) (1) (same); Gilliam v. State, 312 Ga. 60, 62 (860 SE2d 543)

(2021) (same); see also Frett, 309 Ga. at 63 (Peterson, J., dissenting)

(“stare decisis applies with little force to constitutional precedents

because it is very difficult for the People and their elected

representatives to overrule those precedents, if they think them

incorrect” (citation and punctuation omitted)).

None of the considerations relevant to stare decisis that we

typically consider suggest retaining DOT. DOT is not even 35 years

old, and we have overruled decisions older than that. See, e.g., Frett,

309 Ga. at 62 (3) (c) (overruling 85-year-old precedent); Southall, 300

Ga. at 468 (1) (overruling 45-year-old precedent); Lane, 308 Ga. at

17 (1) (overruling 40-year-old precedent); State v. Hudson, 293 Ga.

656, 661-662 (748 SE2d 910) (2013) (overruling 38-year-old

precedent). More importantly, DOT has not become “entrenched” in

our jurisprudence, see Williams, 311 Ga. at 451 (1) (b), such that

“jettisoning [this] precedent” would be “enormously disruptive” to

74 the legal system, compare Cook, 313 Ga. at 512 (2) (a) (Peterson, J.,

dissenting).22 The parties have not shown that DOT affects

substantial reliance interests, such as property or contract rights, or

established a substantive right. See Cook, 313 Ga. at 489 (3) (c)

(“[R]eliance interests are at their apex when they involve these types

of interests.”); Savage, 297 Ga. at 641 (5) (b) (substantial reliance

interests are most common in contract and property cases where

parties may have acted in conformance with existing legal rules in

order to conduct transactions).23 “Finally, to the extent that our

existing rule is easier to apply, that is insufficient reason to retain

22 Notably, we have cited DOT in only a handful of cases discussing whether a delegation was permissible. See Tibbles v. Teachers Retirement System of Ga., 297 Ga. 557, 559 (1) (775 SE2d 527) (2015); Pitts v. State, 293 Ga. 511, 517 (3) (748 SE2d 426) (2013); Harbuck v. State, 280 Ga. 775, 778 (3) (631 SE2d 351) (2006). 23 To be fair, the State may have relied on DOT in some exercises of its

eminent domain power. But nothing about today’s decision should be understood to unsettle any past exercises of eminent domain. Nor do we invalidate the statute at issue in DOT; that question is not before us. Moreover, the General Assembly annually adopts resolutions necessary for the management and disposition of State property, see, e.g., 2025 H.R. 97 (providing for disposition of state property) and H.R. 98 (providing for easements on state property). To the extent it becomes necessary, adding another such annual resolution to exercise eminent domain would of course be possible. 75 it.” Lane, 308 Ga. at 17 (1).

Accordingly, we overrule DOT and other cases relying on it to

the extent that they held that a statute delegating unbridled

discretion to an executive branch agency comports with the

constitutional contours of the nondelegation doctrine. We must next

consider whether the rules challenged by the Plaintiffs comport with

the nondelegation doctrine as we have now explained it.

(c) The Drop Box Surveillance Rule survives a nondelegation

analysis, but the remaining rules do not.

Applying the nondelegation framework outlined above, we

conclude that the Drop Box Surveillance Rule survives each of the

three steps. The Reasonable Inquiry Rule, the Examination Rule,

the Hand Count Rule, and the Drop Box ID Rule, however, fail at

step one.24

Again, at step one of the nondelegation analysis, we ask

whether the statute at issue delegates, either expressly or by

24 All parties agree that the Georgia Constitution vests the General Assembly with the power to enact rules and procedures that govern elections. 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. Thus, the Appellants argue that the Examination Rule,

which allows board members to review all election related

documentation prior to the certification of election results, is

authorized by the Election Code because it promotes “uniformity” in

election procedure by empowering all individuals involved in

fulfilling the role of superintendent to inspect election materials.

But if all local election officials are generally bound to follow SEB

rules, then the SEB could be thought to have the power to adopt any

rule merely because it would have uniform application. This is the

type of unfettered discretion that we have now reiterated is

77 constitutionally intolerable. Thus, in the light of the Georgia

Constitution’s mandate that a statute must provide meaningful,

objective guidelines to cabin an agency’s exercise of discretion, we

have serious concerns that these authorizing statutes — if

interpreted as broadly as their text most reasonably suggests — lack

“sufficient guidelines” that circumscribe the SEB’s rulemaking

power. See, e.g., Garrett, 204 Ga. at 826; Bohannon, 185 Ga. at 842-

843 (3); Moseley, 182 Ga. at 816; Richter, 146 Ga. at 220 (2); Phinizy,

108 Ga. at 361-363 (1).

Because the Appellants’ proposed construction would

potentially render the relevant statutes and thus all of the SEB’s

rules, or at least a significant portion of them, unconstitutional, the

canon of constitutional avoidance counsels against such a

construction, if a reasonable alternative is possible. See Glustrom,

206 Ga. at 739 (“This court will never presume that the General

Assembly intended to enact an unconstitutional law. Where the

language of an act is susceptible of a construction that is

constitutional, and another that would be unconstitutional, that

78 meaning or construction will be applied which will sustain the act.”);

see also Crowder v. State of Ga., 309 Ga. 66, 73 (2) (d) n.8 (844 SE2d

806) (2020) (“[T]he canon of constitutional avoidance allows courts

to choose between competing plausible interpretations of a statutory

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). This statutory text permits a

narrowing construction of the SEB’s rulemaking power to include

only the authority to pass rules consistent with the existing

statutory structure; in other words, the SEB can pass rules to

implement and enforce the Election Code, but it cannot go beyond,

change, or contradict the statutory scheme. See Scoggins v.

Whitfield Finance Co., 242 Ga. 416, 417 (1) (249 SE2d 222) (1978)

79 (upholding statute delegating rulemaking authority to State Loan

Commissioner, noting that the Commissioner “is not granted

unlimited authority to promulgate rules” and the “rules must be

necessary and appropriate, and not inconsistent with the terms of the

chapter or any other applicable statutes” (emphasis added));

Glustrom, 206 Ga. at 739 (“The declaration, that a violation of ‘rules

and regulations in accord with this Act’ shall be a misdemeanor,

limited the power to promulgate rules, the violation of which would

be a misdemeanor, to those in harmony with what the Assembly had

already declared to be a crime.” (emphasis added)).

This limiting construction of the SEB’s rulemaking authority

at step one likely avoids problems at step three (whether the statute

supplies sufficient guidelines). As we have said, to ensure an

executive branch administrative agency is merely executing the law

rather than legislating, the statute must contain objective, judicially

enforceable guidelines. See, e.g., Garrett, 204 Ga. at 826; Bohannon,

185 Ga. at 842-843 (3); Moseley, 182 Ga. at 816; Richter, 146 Ga. at

220 (2); Phinizy, 108 Ga. at 361-363 (1). The General Assembly’s

80 mandate that the SEB’s actions and regulations be “consistent with

law” requires us to look at the specific substantive statutory

provision at issue in the Election Code. These provisions, which

cover a broad array of election procedures and protocols, provide in

painstaking detail how elections are to be administered in Georgia.

See OCGA §§ 21-2-1 to 21-2-604. Thus, when a rule is consistent

with the specific statutory provisions it allegedly implements, it is

also likely that the statute pursuant to which the rule was adopted

supplies the objective, judicially enforceable guidelines needed to

comply with the nondelegation doctrine. With these principles in

mind, we turn to the five rules the Plaintiffs have standing to

challenge.

(i) The Examination Rule (Rule 183-1-12-.12 (a) (.1) (6)).

Under OCGA § 21-2-493 (b), if “the total vote returned for any

candidate or candidates for the same office or nomination or on any

question exceeds the number of electors in such precinct or exceeds

the total number of persons who voted in such precinct or the total

number of ballots cast therein,” the excess votes “shall be

81 investigated by the superintendent[.]” As part of this investigation,

the superintendent shall “examine all the registration and primary

or election documents whatever relating to such precinct[.]” OCGA

§ 21-2-493 (b). The statute, thus, limits the superintendent’s

document review to only those occasions on which the total votes

exceed the total number of electors, voters, or ballots and also limits

that review to only those documents “relating to” the precinct. See

id. The Examination Rule, by contrast, permits election board

members, who are included in the definition of superintendent,25 to

review “all election related documentation” — not specifically

limited to a precinct that has excess votes — at any time “prior to

the certification of results.” Ga. Comp. R. & Regs., r. 183-1-12-.12 (a)

(.1) (6) (“Board members shall be permitted to examine all election

related documentation created during the conduct of elections prior

to certification of results.”). And that rule does not clearly constrain

its application to the statutory limit of only those occasions on which

the total votes exceed the total number of electors, voters, or ballots.

25 See footnote 12 above.

82 The Appellants argue that the Examination Rule simply

ensures that “all board members can examine election-related

documents.” Thus, they argue that the Examination Rule is

essentially identical to OCGA § 21-2-493 (b). But the rule sweeps

more broadly than the statute in at least three meaningful ways.

First, OCGA § 21-2-493 (b) limits a local election official’s review to

certain documents “relating to such precinct,” while the rule

contains no geographical limitation whatsoever. More importantly,

the statute permits local officials to review “election documents,” but

the rule allows review more broadly of election-related documents.

One can envision many documents that are not “election documents”

but may be related to an election. Finally, the rule permits document

review in all cases so long as certification has not yet occurred, while

the statute permits document review only when there is a

discrepancy between the total votes and the number of electors,

voters, or ballots.

The rule’s sweep of what can be reviewed and when it can be

reviewed is much broader than is permitted by statute. Accordingly,

83 the Examination Rule is inconsistent with — and thus not

authorized by — the statute and is invalid at step one.

(ii) The Hand Count Rule (Rule 183-1-12-.12 (a) (5)).

The Election Code outlines the specific steps poll officers must

take after the polls close. See OCGA §§ 21-2-436, 21-2-454, 21-2-

485.26 If ballot tabulating occurs at a central count location, “[a]s

soon as the polls are closed and the last elector has voted[,]” poll

officers are required to “[s]eal the ballot box and deliver the ballot

box to the tabulating center[.]” OCGA § 21-2-485 (1) (A). “At the

tabulating center, . . . [t]he ballots and other contents of the

container shall . . . be removed, and the ballots shall be prepared for

processing by the tabulating machines.” OCGA § 21-2-483 (c). If

ballot tabulation occurs at the precinct, “[a]s soon as the polls are

closed and the last elector has voted[,]” poll officers are required to

26 “Beginning with the 2020 Presidential Preference Primary, all federal,

state, and county general primaries and elections, special primaries and elections, and referendums in the State of Georgia shall be conducted via an Optical Scanning Voting System[.]” Ga. Comp. R. & Regs., r. 183-1-12-.01. Thus, the procedures governing precincts using paper ballots, OCGA §§ 21-2- 430 to 21-2-440, and voting machines, OCGA §§ 21-2-450 through 21-2-457, appear inapplicable.

84 “[f]eed ballots from the auxiliary compartment of the ballot box . . .

through the tabulator[.]” OCGA § 21-2-485 (2) (A). In sum, “as soon

as the polls are closed and the last elector has voted[,]” poll officers

must either (1) feed the ballots through the tabulator or (2) seal the

ballots for delivery to the central count location where the ballots

can be tabulated. See OCGA § 21-2-485.

Contrary to these clear statutory directives, the Hand Count

Rule requires poll officers to “unseal and open each scanner ballot

box, remove the paper ballots from each ballot box,” and then “count

the total number of ballots removed from the scanner, sorting into

stacks of 50 ballots, continuing until all of the ballots have been

counted separately” by three poll officers. Ga. Comp. R. & Regs., r.

183-1-12-.12 (a) (5).27 Additionally, “[t]he decision about when to

27 Compare OCGA § 21-2-483 (c) (“[T]he seal on each container of ballots

shall be inspected, and it shall be certified that the seal has not been broken before the container is opened. The ballots and other contents of the container shall then be removed, and the ballots shall be prepared for processing by the tabulating machines.”), with Ga. Comp. R. & Regs., r. 183-1-12-.12 (a) (5) (current rule) (“A separate container shall be used for the paper ballots from each ballot box . . . . The container shall be sealed and signed by the poll manager and the same two witnesses such that it cannot be opened without breaking the seal.”). 85 start” the hand counting process “is up to the Poll Manager or

Assistant Poll Manager” and may not begin until the day after

Election Day. See Ga. Comp. R. & Regs., r. 183-1-12-.12 (a) (5) (a).

The Hand Count Rule is inconsistent with the Election Code

because it allows poll officers to delay the tabulation process until

the day after Election Day, in contravention of the statute’s

requirement that tabulation occur “as soon as” the polls are closed.

Accordingly, the Hand Count Rule is inconsistent with — and thus

unauthorized by — the statute and is invalid at step one.

(iii) Reasonable Inquiry Rule (Rule 183-1-12-.02 (1) (c.2)).

The Reasonable Inquiry Rule provides that to “‘[c]ertify the

results of a primary, election, or runoff,’ or words to that effect,

means to attest, after reasonable inquiry that the tabulation and

canvassing of the election are complete and accurate and that the

results are a true and accurate accounting of all votes cast in that

election.” Ga. Comp. R. & Regs., r. 183-1-12-.02 (1) (c.2). The

Plaintiffs argue that directing election officials to engage in a

“reasonable inquiry” before certifying election results contradicts

86 OCGA § 21-2-493, which establishes the methods and procedures

superintendents must follow when certifying the election results.

We agree.

Pursuant to OCGA § 21-2-493, “[t]he superintendent shall,

after the close of the polls on the day of a primary or election, . . .

publicly commence the computation and canvassing of the returns”

and “[u]pon the completion of such computation and canvassing, the

superintendent shall tabulate the figures for the entire county or

municipality and sign, announce, and attest the same, as required

by this Code section.” OCGA § 21-2-493 (a) (emphasis added). OCGA

§ 21-2-493 (b) further requires that, “before computing the votes cast

in any precinct,” the superintendent “shall compare the registration

figure with the certificates returned by the poll officers showing the

number of persons who voted in each precinct or the number of

ballots cast.” If “the total vote returned for any candidate or

candidates for the same office or nomination or on any question

exceeds the number of electors in such precinct or exceeds the total

number of persons who voted in such precinct or the total number of

87 ballots cast therein,” the superintendent shall initiate an

investigation. Id. This investigation may “include a recount or

recanvass of the votes of that precinct[.]” Id.

The Appellants argue that because OCGA § 21-2-493 does not

define the term “certify,” the Reasonable Inquiry Rule provides

election officials with necessary guidance. But OCGA § 21-2-493

outlines in detail the procedures the superintendent must follow

before certifying election results, including comparing the number

of registered voters with the number of people who voted or the

number of ballots cast and recounting or recanvassing votes.

Ultimately, even if the superintendent discovers any error or fraud

in the computation of votes, the superintendent “shall . . . certify the

votes[.]” OCGA § 21-2-493 (i) (emphasis added);28 see Hall County

Bd. of Tax Assessors v. Westrec Properties, Inc., 303 Ga. 69, 75 (3)

(809 SE2d 780) (2018) (“The word ‘shall’ is generally construed as a

word of command.” (citation and punctuation omitted)). Allowing

28 This does not mean that error or fraud cannot be corrected, but merely

that the General Assembly has prescribed means other than the unilateral decision of a local election superintendent. 88 election officials to delay certification to conduct an undefined

“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). Thus, the Reasonable Inquiry Rule is

inconsistent with — and thus unauthorized by — the statute and

fails at step one.

(iv) The Drop Box ID Rule (Rule 183-1-14-.02 (18)).

OCGA § 21-2-385 (a) permits an absentee voter’s “mother,

father, grandparent, aunt, uncle, brother, sister, spouse, son,

daughter, niece, nephew, grandchild, son-in-law, daughter-in-law,

mother-in-law, father-in-law, brother-in-law, sister-in-law, or an

individual residing in the household of such” voter to mail or deliver

the voter’s absentee ballot. The statute also permits caregivers of

disabled voters and detention facility employees having custody over

detained voters to mail or deliver those voters’ absentee ballots. See

id.

89 The Drop Box ID Rule requires a person delivering, but not

mailing, an absentee ballot on behalf of another person to provide a

signature and a photo ID and to demonstrate an approved relation

to the elector named on the absentee ballot.29 Ga. Comp. R. & Regs.,

r. 183-1-14-.02 (18). But nowhere in OCGA § 21-2-385 (a) is the

person delivering an absentee ballot required to provide a signature

or photo identification. The Drop Box ID Rule, therefore, is

29 Specifically, the Drop Box ID Rule states:

Any absentee ballot drop location, other than the United States Postal Service or authorized and defined drop box under Georgia Law, that receives absentee ballots shall require an absentee ballot form with written documentation, including absentee ballot elector’s name, signature and photo ID of the person delivering the absentee ballot, and approved relation to the elector’s name on the absentee ballot. An absentee ballot form provided by the Secretary of State shall be completed by the registrar, clerk, deputy, or election official. The form shall serve as a written record of the name of the elector, the name of the person delivering the absentee ballot, the relation to voter, signature of the person depositing the ballot, and type of ID of the person delivering the absentee ballot. The absentee ballot form shall be returned with the absentee ballots and chain of custody forms to the superintendent. Any ballot not included on the recorded absentee ballot form or any ballot delivered without a signed chain of custody shall be considered a provisional absentee ballot. The superintendent shall notify any elector with a provisional ballot immediately and provide information and instructions of how to cure the provisional absentee ballot. Ga. Comp. R. & Regs., r. 183-1-14-.02 (18). 90 inconsistent with the statute. 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). That might be

so. But the rule goes beyond the statute’s provisions and invents new

requirements. That is not consistent with — and thus not authorized

by — the statute. Accordingly, the Drop Box ID Rule is invalid at

step one.

(v) Drop Box Surveillance Rule (Rule 183-1-14-.02 (19)).

OCGA § 21-2-382 (c) (1) requires the board of registrars or the

absentee ballot clerk to “establish at least one drop box as a means

for absentee by mail electors to deliver their ballots[.]” Drop boxes

are to be located “at the office of the board of registrars or absentee

ballot clerk or inside locations at which advance voting . . . is

conducted in the applicable primary, election, or runoff and may be

open during the hours of advance voting at that location.” Id. These

drop boxes must “close[ ] when advance voting is not being conducted

91 at that location.” Id. Drop box locations must also “be under constant

surveillance by an election official or his or her designee, law

enforcement official, or licensed security guard.” Id. The Drop Box

Surveillance Rule requires that

[a]t the close of the polls each day during early voting and after the last voter has cast his or her ballot, the poll officials shall initiate video surveillance and recording of a drop box at any early voting location. Such surveillance shall include visual recording of the drop box if there is one located at that site. Any drop box that is not under constant and direct surveillance shall be locked or removed and prohibited from use. Video surveillance may be live-streamed but must be recorded and will be considered part of the election documents and retained as provided in Code Section 21-2-390.

Ga. Comp. R. & Regs., r. 183-1-14-.02 (19). The Drop Box

Surveillance Rule is consistent with OCGA § 21-2-382 (c) (1) because

it merely articulates a uniform method of compliance with

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). Although

92 OCGA § 21-2-382 (c) (1) specifies who should be conducting

surveillance (i.e., “an election official or his or her designee, law

enforcement official, or licensed security guard”), it does not specify

how these individuals should monitor drop box locations. The Drop

Box Surveillance Rule thus serves a necessary gap-filling function

and promotes “uniformity” in election procedure by providing a

specific method of compliance with the statute.

The Plaintiffs argue that the rule is inconsistent with OCGA §

21-2-382 (c) (1) because it requires drop boxes not under surveillance

to be taken out of use, which is not, in their view, required by the

statute. We disagree. OCGA § 21-2-382 (c) (1) requires that drop

boxes remain “closed when advance voting is not being conducted”

or “when the advance voting period ends”; the rule merely

implements that mandate by requiring drop boxes not under

constant surveillance to be locked and prohibited from use.

Similarly, by requiring video surveillance, the rule provides clarity

and uniformity for the implementation of the statute’s mandate that

93 drop box locations “be under constant surveillance.”30

As for step three, OCGA § 21-2-382 (c) (1), as we construe it

today, provides sufficient guidelines to cabin the SEB’s exercise of

rulemaking authority. The statute provides guidelines for where

drop box locations should be placed, when drop box locations must

close, and who is required to monitor the drop box locations. See

OCGA § 21-2-382 (c) (1). Although the statute does not mandate

precisely how an election official should monitor and restrict access

30 Citing Ga. Real Estate Comm. v. Accelerated Courses in Real Estate,

Inc., 234 Ga. 30 (214 SE2d 495) (1975), the Plaintiffs argue that even if the Drop Box Surveillance Rule is consistent with the statute, the Court should strike it down as unreasonable. In Georgia Real Estate Commission we held that “the test of validity of an administrative rule is twofold: (1) Is it authorized by statute, and (2) is it reasonable?” Id. at 32 (2) (citing Eason v. Morrison, 181 Ga. 322 (182 SE 163) (1935)). But Eason did not establish this as a generally applicable requirement for all regulations. See Cazier v. Ga. Power Co., 315 Ga. 587, 590-591 (1) (a) (883 SE2d 517) (2023) (Peterson, P. J., concurring in the denial of certiorari). Rather, Eason held that in the unique legal circumstances of the case — where the statute gave the agency “power to adopt all reasonable rules and regulations” — that the rule at issue was reasonable (a statutory requirement) and also separately comported with other statutory requirements. 181 Ga. at 322-326 (1) (emphasis added). Thus, Eason’s conclusion that the regulation at issue was reasonable was necessarily limited to statutory contexts with similar textual requirements. Georgia Real Estate Commission’s statement that all rules must be reasonable to be valid is a misapplication of Eason’s narrow holding limited to its specific legal context, and we disapprove that language. Whether an agency regulation that was unreasonable would violate due process is a separate question, and one that is not at issue here. 94 to drop box locations, with these other guidelines in place, the

legislature left that small gap to be filled by the SEB consistent with

the statute. See, e.g., Garrett, 204 Ga. at 826; Bohannon, 185 Ga. at

842-843 (3); Moseley, 182 Ga. at 816; Richter, 146 Ga. at 220 (2);

Phinizy, 108 Ga. at 361-363 (1). Accordingly, the statute complies

with step three, and the Drop Box Surveillance Rule does not violate

the nondelegation doctrine.

***

In sum, of the five rules for which standing has been

established, the Reasonable Inquiry Rule, the Hand Count Rule, the

Drop Box ID Rule, and the Examination Rule are unauthorized by

statute, while the Drop Box Surveillance Rule is valid. There are two

rules — the Poll Watcher Rule and the Daily Reporting Rule — that

Plaintiffs cannot challenge as voters, community-stakeholders, or

organizations. But the trial court also ruled that Hall had standing

to challenge the SEB rules as a member of the Chatham County

Board of Elections. This conclusion was not based on the correct

legal analysis, however, and so we vacate and remand to reconsider

95 this issue. If the trial court concludes that Hall has standing based

on his official capacity, it must then evaluate the two rules we do not

consider today — the Daily Reporting Rule and the Poll Watcher

Rule — to determine the validity of those rules under the

nondelegation framework set forth in this opinion. Accordingly, we

affirm in part, reverse in part, vacate in part, and remand with

direction.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction. Warren, P. J., and Bethel, Ellington, McMillian, LaGrua, Colvin, and Pinson, JJ., concur.

Decided June 10, 2025.

Election. Fulton Superior Court. Before Judge Cox.

Chalmers Adams Backer & Kaufman, Alex B. Kaufman, Kevin

T. Kucharz; Hall Booth Smith, William B. Carver, Sr.; Consovoy

McCarthy, Gilbert C. Dickey, Conor D. Woodfin, for appellants (case

no. S25A0362).

96 Clark Hill, Bryan P. Tyson, Diane F. LaRoss, Bryan F.

Jacoutot, for appellant (case no. S25A0490).

Bradley Arant Boult Cummings, Christopher S. Anulewicz,

Jonathan R. DeLuca, Marc J. Ayers; Cory H. Isaacson, Caitlin F.

May, Akiva H. Freidlin; Theresa J. Lee, Sophia L. Lakin; Gerald R.

Weber, Jr.; Morgan Lewis & Bockius, Raechel K. Kummer, Katherine

A. Vaky, Carolyn Welshhans, for appellees.

The Bullard Firm, Brandon A. Bullard; David E. Oles, Sr.;

Page Scrantom Sprouse Tucker & Ford, James C. Clark, Jr., Thomas

F. Gristina; Caplan Cobb, Michael A. Caplan, T. Brandon Waddell,

Ashley C. Brown; Haynie Litchfield & White, Daniel W. White,

William A. Pinto, Jr.; Elaine Poon; Kastorf Law, Kurt G. Kastorf;

The Barnes Law Group, Charles C. Bailey; Rouse & Copeland, Amy

L. Copeland; Ballard Spahr, Keisha O. Coleman; Moore Legal

Services, Jennifer E. Moore; Manatt Phelps & Phillips, Joanna S.

McCallum; Wilmer Cutler Pickering Hale & Dorr, Sharon K. Hogue,

Thomas G. Sprankling, Alex W. Miller, Daniel S. Volchok, Anuj

Dixit, Seth P. Waxman, Felicia H. Ellsworth, amici curiae.