Rumors have it that in at least one circumstance (and, possibly, many others), former Secretary of State Karen Handel violated her oath of office by asserting authority she did not possess, and allowing Secretary of State Inspector General Shawn LaGrua free reign to initiate an investigation of a complaint of an election night irregularity without the Secretary of State’s office being given specific authorization from the State Elections Board (“SEB”) to do so, as is required by O.C.G.A. § 21-2-31(5).
PV’s Intro: Okay…our crack team of PV interns and legal researchers have done extensive research on this, and it looks like this rumor is a fact.
A warning to the reader: This story contains matters of state law, and not a whole lot of “political intrigue.” We will attempt to not put you to sleep (or ourselves).
Title 21 of the Official Code of Georgia (“OCGA”) is referred to as the “Elections Code” which spells-out the law on all aspects of how elections are to be conducted in Georgia.
Title 21 also spells-out how the State Election Board is formed (i.e., how appointments are made for people to serve on the SEB), as well as the specific duties assigned to the SEB.
A crucial, relevant point to our story is OCGA 21-2-31(5), which states the following:
“It shall be the duty of the State Election Board to investigate, or authorize the Secretary of State to investigate [emphasis added], when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law;”
Note that it states that it “shall be the duty of the State Election Board to investigate, or authorize the Secretary of State to investigate”…essentially, any decisions to investigate any allegations of voter fraud or other types of election fraud (or “irregularities”) are made solely by the State Election Board.
A different section of Title 21, OCGA 21-2-50, defines the duties of the Secretary of State for elections. That contains a whole bunch of stuff, but it never spells-out anything regarding the SOS being allowed to initiate any kind of investigation on its own with regards to an election complaint.
One section of 21-2-50 that (ahem) has been claimed by the Office of the SOS in the past to be used by the SOS to “presume” he/she has the “right” to initiate an investigation on their own is 21-2-50(a)(8):
“(a)(8) The Secretary of State shall exercise all the powers granted to the Secretary of State by this chapter and shall perform all the duties imposed by this chapter, which shall include…such other duties as may be prescribed by law;”
Trouble is, there is no law “prescribed” anywhere in OCGA that grants the right to the Secretary of State of deciding whether an investigation is to be initiated.
Enough background…time for the heart of the matter…
[The following is a very short-version of this case. A longer version is being developed that describes more details in-depth than we are ready to release at this time]
General Election Night 2008 in Lowndes County, Georgia. Somehow, 947 test votes on a memory card were uploaded into the GEMS vote accumulator, and all votes (including the 947 test votes) are electronically uploaded to the Georgia Secretary of State’s office.
(Unrelated to this particular story, the identity of the person responsible for uploading a memory card containing 947 test votes is still unknown to this day. In order to upload test votes into a “live vote” accumulation, that person would have been prompted by the machine with something like “Card contains test votes. Are you sure you wish to upload?” The person using that card would have had to ignore his/her oath taken for that election, press the “Yes” button to upload those 947 votes, and purposely ignored the ramifications of doing so. AND, everyone knows for certain that the identity of that person was not Laura Gallegos as she was assigned to a precinct that night and was nowhere near the GEMS machine.)
Approximately 2 weeks after November 2, 2008, the Secretary of State’s office reconciled the electronic vote count received from the Lowndes County upload on Election Night with the “poll book” (which has been described to PV as the count of how many people are recorded as having received a ballot to vote).
Then, the SOS sent a formal legal letter down to the Board of Elections of Lowndes County, stating that the Lowndes County BOE is being named as the defendant, and the SOS is the plaintiff, in a legal action regarding these 947 extra votes having no accountability as to where they came from.
On November 26, 2008, the SOS’s Inspector General’s office (“SOS-IG”) received a written complaint from Deb Cox, Elections Superintendent of Elections of Lowndes County. In this complaint, Cox alleged several violations of state elections law by Laura Gallegos, a worker in the BOE office (the details of those allegations are irrelevant to this particular story, but will be discussed more in depth in a future PV).
A supervisor with the SOS-IG’s office, or, perhaps, IG Shawn Lagrua herself took the Cox complaint and assigned an investigator to the case, Steve McBrayer. Important note to repeat here: McBrayer was assigned the complaint case and directed to initiate an investigation into Cox’s allegations by his supervisor.
Documentation we’ve seen of McBrayer’s report show the following was performed by McBrayer:
1) On Monday, December 1, 2008, Investigator McBrayer interviewed Deb Cox in-person in Lowndes County.
2) On Monday, December 1, 2008, Investigator McBrayer interviewed James Long in-person in Lowndes County.
3) On Tuesday, December 9, 2008, Investigator McBrayer conducted a telephone interview of Laura Gallegos.
On June 2, 2009, the results of McBrayer’s investigation and the charges alleged by Deb Cox were read into the public record during the open SEB meeting. The SEB voted 4-0 to bind over the case against Laura Gallegos to the AG’s office for presentation in front of an Administrative Law Judge.
According to the Georgia State Election Board’s Website, in the Fall of 2008, there was a meeting of the SEB held on September 24, 2008…and the very next time an SEB meeting was held, it was held on January 21, 2009.
SO…knowing what OCGA 21-2-31(5) spells-out in precise terms of which legal entity is responsible for authorizing any investigations to be performed, and knowing that no SEB meeting could have happened that authorized the SOS’s office to perform this investigation, where did then-Secretary of State Karen Handel and SOS-IG Shawn LaGrua get authorization to initiate ANY investigation into the allegations offered by Deb Cox?
Answer: Nowhere. They purposely ignored the law and decided to investigate Deb Cox’s complaint claims by their own choice. In doing so, they broke the law.
They (Karen Handel and Shawn LaGrua) took oaths to uphold the law, and they abused their power by presuming they had the authority to initiate any investigation they wanted to all on their own. (And, we suspect this is not the only instance of this happening that LaGrua initiated investigations without first getting authorized by the SEB to do so.)
NOW…interestingly enough, there was an opinion written by the Georgia Attorney General’s office in 2005 that appears to relate to this very same type of issue: That is, can the SOS’s office presume to legally be able to assume the duties of the SEB in-between meetings of the SEB?
According to what PV reads of Deputy Attorney General Dennis R. Dunn’s opinion from 2005, a resounding “NO! The SOS is NOT legally allowed to presume to take-on the role and duties of the SEB.”
We have learned that LaGrua fired McBrayer last Friday (January 22, 2010)…for reasons we do not yet know. But, we suspect LaGrua is fabricating a scheme to deflect blame away from her when, in fact, LaGrua actually has a documented history of initiating investigations without being authorized to do so, dating back to her time as Solicitor in DeKalb County. AND, in fact, we suspect she is NOT above destroying or fabricating evidence so that she looks like she is not culpable.
For more info on the REAL Shawn LaGrua, please click here and download the PDF provided for your reading convenience.
MEMO TO SOS BRIAN KEMP:
Honorable Brian Kemp,
Sir, please consider yourself warned on this matter of Shawn LaGrua violating her oath to uphold the law. If you fail to take precautionary steps to protect the evidence contained within the files of the SOS-IG’s office, then it will be on your shoulders to explain what happened to the evidence should it magically get “misplaced.”
In fact, Mr. Kemp, since we have pointed out publicly that the office of the Secretary of State is NOT allowed, by law, to perform any investigation without prior authorization on a case-by-case basis by the SEB (unless, of course, you would wish to challenge the 2005 opinion of the Attorney General’s office), any “investigations” that are ongoing right now in your office may be deemed to be in violation of the law in the very near future if it turns out that the SEB did not authorize those investigations to be conducted in the first place.
Please accept our advice in the most open and honest way wished for you to understand, Mr. Kemp: You took an oath to uphold the office of the Secretary of State, not to cover for your predecessor. Please do not repeat her acts.
To Reporters and Other Interested Parties: The Case# for this matter is SEB #2008-000133. However…this case is not yet available for public inspection. Why? Because it is still contained within the realm of the AG’s office and is on its way back to the SEB after an administrative law judge in Lowndes County dismissed all charges 2 weeks ago that had been asserted against Laura Gallegos.
How did PV come to be informed of this case if it is not subject to Open Records? Because other people know about this case and tapped the research team of PV to help expose it to the light of day.
One such source is VOTER GA, a 501(c)(3) tax-deductible organization whose goal is ensuring trusted election results for Georgia.
In fact, point of truth: PV was researching the allegations by Deb Cox when we came upon this lightening bolt of “WTF? When did LaGrua and Handel get authorization to even DO an investigation?”
Please stay tuned to the PV….because we have a lot more left to report on with regards to the original case of how those 947 test votes came to be uploaded into the Lowndes County GEMS server on General Election Night 2008…