Outgoing Establishment Republicans Make Unlawful Run to Control Forsyth County Election Board, Commissioners Do Nothing

You might recall my June 30 Sub­stack enti­tled, “Kem­p’s Pri­vate Polit­i­cal Par­ty Makes Its First Move-The back­sto­ry to under­stand these events.” In that arti­cle I observed that the Repub­li­can estab­lish­ment has been steadi­ly los­ing favor with authen­tic con­ser­v­a­tive Geor­gia Repub­li­can vot­ers. As a result, in coun­ty after coun­ty the Repub­li­can estab­lish­ment has been los­ing seats and influ­ence on local GOP com­mit­tees, hand­ing pow­er over to Trump-sup­port­ing, MAGA-aligned Repub­li­cans. See­ing his own strength in the Repub­li­can Par­ty dimin­ish­ing, Gov­er­nor Bri­an Kemp has tak­en steps to shore up a base of polit­i­cal and finan­cial sup­port using unortho­dox, pro­pri­etary meth­ods. Those meth­ods include legal­iz­ing pri­vate polit­i­cal cor­po­ra­tions with abil­i­ties to make unlim­it­ed cam­paign con­tri­bu­tions to statewide office hold­ers, while also pro­vid­ing oth­er polit­i­cal ser­vices with­in the coun­ties, such as work­ing to main­tain con­trol over valu­able coun­ty elec­tion board appoint­ments. In the last para­graph of my Sub­stack I summed it up this way, 

“Thus, we see in these events the begin­ning of a pat­tern, in which forces back­ing Geor­gia Gov­er­nor Bri­an Kemp are effec­tive­ly attempt­ing a pri­vate takeover of the Geor­gia Repub­li­can Par­ty. That takeover is appar­ent­ly being accom­plished through increas­ing­ly con­trol­ling the Repub­li­can rep­re­sen­ta­tion nor­mal­ly present with­in the mem­bers con­sti­tut­ing coun­ty elec­tion boards…So, even though the appar­ent make-up of the Geor­gia Repub­li­can Par­ty, includ­ing an over­whelm­ing num­ber of coun­ty GOP’s, has become decid­ed­ly “Trumpian” and “Amer­i­ca First,” estab­lish­ment Repub­li­cans, led by Kemp, are mak­ing a play to “wag the dog,” exert­ing polit­i­cal influ­ence at the coun­ty lev­el to place their own peo­ple onto elec­tion boards where vital deci­sions, such as whether to resist using Domin­ion vot­ing machines, would be made.”

Ful­ton and Chero­kee were the first two coun­ties in which this polit­i­cal chi­canery, a tac­tic of grab­bing hold of elec­tion board seats by the out­go­ing estab­lish­ment, has been used successfully. 

But since writ­ing that piece, it has come to my atten­tion cer­tain events relat­ed to a coun­ty board of reg­is­tra­tions and elec­tions (BRE) vacan­cy being filled in my own home coun­ty of Forsyth, for the term begin­ning Sep­tem­ber 1, 2023.  Con­cern­ing that vacan­cy, the fol­low­ing facts are undisputed: 

1.      The 4‑year term of ser­vice of Board of Elec­tions mem­ber, Joel E. Natt, expires August 31, 2023. 

2.      Forsyth Coun­ty Code, Arti­cle III, Sec­tion 2(b)(2), which mir­rors Geor­gia Law, pro­vides a manda­to­ry legal process for appoint­ing a mem­ber to the Board of Elections. 

3.      Accord­ing to that code sec­tion, “A polit­i­cal par­ty appoint­ment for mem­ber­ship on the board shall be made by the chair­per­son of the coun­ty exec­u­tive com­mit­tee of the polit­i­cal par­ty nom­i­nat­ing a qual­i­fied can­di­date and the can­di­date’s nom­i­na­tion being rat­i­fied by a major­i­ty of the mem­bers of the coun­ty exec­u­tive com­mit­tee vot­ing at a reg­u­lar­ly sched­uled meet­ing of the coun­ty exec­u­tive com­mit­tee or a meet­ing duly called and held for such purpose.”

4.      On or about Novem­ber 22, 2022, less than three months pri­or to the end of its term of office, the Forsyth Coun­ty Repub­li­can Par­ty Exec­u­tive Com­mit­tee met via Zoom to dis­cuss var­i­ous agen­da items.  One item turned out to be the par­ty nom­i­na­tion of a can­di­date to serve as a Forsyth Coun­ty BRE mem­ber for a new 4‑year term com­menc­ing Sep­tem­ber 1, 2023, the out­go­ing coun­ty GOP chair­man mak­ing a grab for that open seat a full nine months into the future.  Dur­ing that con­fer­ence, Coun­ty GOP Chair­man Jer­ry Marinich pur­port­ed­ly informed the mem­bers of the com­mit­tee that he would nom­i­nate present BRE vice-chair­man Joel Natt to suc­ceed him­self at the expi­ra­tion of his present term, again, nine months hence, a term which would not begin until six months after the end of Marinich’s own term as coun­ty GOP chair. That action, the effect of which would pre­vent the incom­ing exec­u­tive board from select­ing a BRE mem­ber more in keep­ing with pre­vail­ing GOP atti­tudes, is the same kind of polit­i­cal chi­canery we have recent­ly seen in our neigh­bor­ing coun­ties.  Like­ly not hav­ing the votes to rat­i­fy his choice for the BRE, those attend­ing the meet­ing advise that the GOP chair­man claimed all author­i­ty nec­es­sary to nom­i­nate the new BRE can­di­date him­self, alleg­ing it was his deci­sion alone to make, in his capac­i­ty as coun­ty par­ty chair­per­son.  Accord­ing to cer­tain of those present, the chair­man took no nom­i­na­tions for the posi­tion, nei­ther ask­ing for nor receiv­ing a sec­ond for his nom­i­nee, took no vote, and there­by received no rat­i­fi­ca­tion by a major­i­ty of the mem­bers of the coun­ty exec­u­tive com­mit­tee, as the Forsyth Coun­ty ordi­nance and Geor­gia law require. 

5.      The GOP Chair­man soon advised Forsyth Coun­ty out­side Attor­ney, Ken Jar­rard, of the name he appar­ent­ly per­son­al­ly and uni­lat­er­al­ly nom­i­nat­ed for the Coun­ty Com­mis­sion to appoint to fill the expir­ing BRE slot to begin Sep­tem­ber 1, his nom­i­nee being Joel Natt. 

6.      On Feb­ru­ary 2, 2023, dur­ing a reg­u­lar meet­ing of the Forsyth Coun­ty Board of Com­mis­sion­ers, Attor­ney Jar­rard pre­sent­ed the name giv­en him by the GOP chair­man for appoint­ment to the elec­tions board.  Based upon the infor­ma­tion they received from Mr. Jar­rard, the com­mis­sion­ers con­sid­ered the name of Joel Natt, and although the term of office would not com­mence for anoth­er 6 months, the com­mis­sion­ers rub­ber-stamped the Natt nom­i­na­tion, unan­i­mous­ly appoint­ing him to serve a new 4‑year term, suc­ceed­ing him­self in that posi­tion on Sep­tem­ber 1 of this year. 

Unbe­known, at least to sev­er­al mem­bers of the Forsyth Coun­ty GOP Exec­u­tive Com­mit­tee present dur­ing the Zoom con­fer­ence last Novem­ber, the GOP chair actu­al­ly had no law­ful pow­er to per­son­al­ly and uni­lat­er­al­ly nom­i­nate the next BRE mem­ber to the board of com­mis­sion­ers. He had only the pow­er to sug­gest a nom­i­nee to the exec­u­tive com­mit­tee, who, accord­ing to state law and an iden­ti­cal coun­ty ordi­nance, would have to rat­i­fy his selec­tion pri­or to it being pre­sent­ed to the Forsyth Coun­ty Com­mis­sion for final appoint­ment. And so, just as it hap­pened in Ful­ton and Chero­kee Coun­ties, it appears cer­tain indi­vid­u­als with­in the estab­lish­ment wing of the Repub­li­can Par­ty have tak­en steps to thwart the will of a coun­ty Repub­li­can Par­ty, the lat­est vic­tim being Forsyth, and place an estab­lish­ment favorite, Mr. Natt, on the coun­ty elec­tion board. 

Is there wrong-doing here?

As of this point in the nar­ra­tive, I con­sid­ered no one on the Forsyth Coun­ty Com­mis­sion, nor its out­side coun­sel, to have act­ed out­side of his or her prop­er role or author­i­ty in the law­ful, legal process of appoint­ing a mem­ber to the coun­ty BRE.  It seemed to me that, although cit­i­zens might expect their coun­ty com­mis­sion to at least ask a ques­tion or two con­cern­ing an impor­tant board nom­i­na­tion such as this, espe­cial­ly for a board posi­tion that far into the future, facts not revealed to them on Feb­ru­ary 2, 2023 cer­tain­ly couldn’t be held against them…or could they? As you will learn below, it turns out I was wrong to assume the Forsyth Coun­ty Com­mis­sion had no cul­pa­bil­i­ty in this appar­ent unlaw­ful set of events. 

Forsyth GOP gives notice to commissioners of non-compliance with the law

Dur­ing the third week in May, almost three months ago, well with­in the time frames of the applic­a­ble statute ref­er­enced above, new­ly-elect­ed Forsyth Coun­ty GOP Chair­per­son, Mendy Moore, rep­re­sent­ing the recent­ly-elect­ed GOP Exec­u­tive Com­mit­tee and com­mit­tee at-large, informed the Forsyth Coun­ty Com­mis­sion, via Attor­ney Jar­rard, that a non-legal process, evad­ing the law, had been fol­lowed in Novem­ber result­ing in an unlaw­ful nom­i­na­tion of Mr. Natt to the BRE. That rev­e­la­tion brought with it an entire­ly new set of prin­ci­ples, both legal and eth­i­cal, for the Forsyth BOC to con­sid­er and untan­gle, which, rea­son­ably, it would have to do with­out delay, to remain in com­pli­ance with the legal appoint­ment process to which all of these play­ers are bound, out­lined with­in the Forsyth Coun­ty Code and Geor­gia law cit­ed above and below. 

Possible ethics violations

Regard­ing coun­ty ethics rules, accord­ing to Forsyth Coun­ty Ordi­nance Sec. 2–64, enti­tled, “Code of ethics for mem­bers of boards, com­mis­sions, author­i­ties, elect­ed offi­cials, and coun­ty depart­ment heads,” 

“(b)Any mem­ber of a coun­ty board, com­mis­sion, or author­i­ty, and elect­ed offi­cials and coun­ty depart­ment heads shall: (1) Uphold the Con­sti­tu­tion, laws, and reg­u­la­tions of the Unit­ed States, the state, the coun­ty, and all gov­ern­ments there­in and nev­er be a par­ty to their eva­sion.”

Thus, Forsyth Coun­ty Ethics Rules do not allow mem­bers of the board of com­mis­sion­ers to become involved in evad­ing the law, in any way, with­out each of those involved becom­ing a par­ty to the law’s eva­sion, in so doing com­mit­ting pos­si­ble ethics vio­la­tions. If the nom­i­na­tion process evades the law, and the com­mis­sion­ers know­ing­ly allow it, they evade the law as well. 

Fur­ther­more, regard­ing poten­tial actions of the county’s out­side coun­sel, State Bar of Geor­gia Code of Con­duct, specif­i­cal­ly, Chap­ter 1 under Ethics and Dis­ci­pline, rule 4 under “A Lawyer’s Respon­si­bil­i­ties,” requires that,“it is also a lawyer’s duty to uphold legal process.”

Uphold­ing legal process is impor­tant because doing so aids in man­i­fest­ing an equi­table out­come with respect to the intent of the law. Evad­ing legal process would have an oppo­site effect. Accord­ing to the Geor­gia Bar Asso­ci­a­tion, attor­neys are not allowed to know­ing­ly bypass legal process, such as, for exam­ple, the legal process involved in nom­i­nat­ing and appoint­ing a BRE mem­ber. Thus, if the legal process involv­ing a board nom­i­na­tion evades the law, and if the attor­ney guid­ing the coun­ty com­mis­sion­ers respon­si­ble for appoint­ing these mem­bers know­ing­ly ignores that fact, thus fail­ing to uphold legal process, that attor­ney could also be in vio­la­tion of state bar ethics rules. 

There­fore, upon receiv­ing reli­able infor­ma­tion that Mr. Natt’s nom­i­na­tion for the Forsyth Coun­ty BRE was unlaw­ful, based upon the fail­ure of the pre­vi­ous coun­ty GOP chair to adhere to “legal process” out­lined in the Forsyth Coun­ty Code and Geor­gia law, accord­ing to the State Bar of Geor­gia rules, a case could be made that Forsyth County’s out­side coun­sel would pos­sess an inher­ent duty to uphold the legal process evad­ed by the GOP Chair­man in Novem­ber.  Accord­ing­ly, should non-com­pli­ance with the legal process be ver­i­fied, the attorney’s eth­i­cal duty would neces­si­tate noti­fy­ing the com­mis­sion mem­bers that Mr. Natt’s nom­i­na­tion evad­ed the law, was there­fore unlaw­ful on its face and should be nullified. 

As time is of the essence, once sat­is­fied with the prospect that new infor­ma­tion com­ing from Ms. Moore was truth­ful, from all appear­ances coun­ty attor­ney Jar­rard became oblig­at­ed by statewide eth­i­cal stan­dards to advise the com­mis­sion that the legal process was indeed not upheld, and that the board should act to offi­cial­ly void the appoint­ment of Mr. Natt with­out delay, and await a new nom­i­na­tion from coun­ty GOP chair Moore. Accord­ing to Ms. Moore’s let­ter, she would ensure the nom­i­nat­ing process be in keep­ing with the law, adher­ing to all manda­to­ry legal process.  Thus, a case can be made that, accord­ing to the Geor­gia Bar, should the county’s out­side coun­sel pro­vide guid­ance to the Forsyth Coun­ty Board of Com­mis­sion­ers, to know­ing­ly accept an unlaw­ful­ly-nom­i­nat­ed can­di­date to take posi­tion as a board mem­ber of the BRE, that advice could eas­i­ly be inter­pret­ed as a vio­la­tion of an inher­ent eth­i­cal respon­si­bil­i­ty of any Geor­gia lawyer, sub­ject­ing such an attor­ney to pos­si­ble ethics delib­er­a­tions as well. 

Oh, But, Not So Fast!

Last month, accord­ing to Forsyth Com­mis­sion­er Alfred Johns, speak­ing with me direct­ly, coun­ty Attor­ney Ken Jar­rard has “pro­vid­ed guid­ance” to the com­mis­sion mem­bers that the ques­tion whether the nom­i­na­tion by the now ex-GOP chair­man was derived unlaw­ful­ly, “is not com­plete­ly clear.” 

Thus, as I write this col­umn in mid-August, two weeks before the new four year BRE term begins, there exist two claims over the right to nom­i­nate the next Forsyth Coun­ty BRE mem­ber, one by the for­mer GOP Chair­man Marinich, out of office since March, hav­ing report­ed­ly received no rat­i­fi­ca­tion by the exec­u­tive com­mit­tee, and uni­lat­er­al­ly declar­ing his nom­i­na­tion to the com­mis­sion­ers nine months in advance of the begin­ning if the next term, ver­sus the oth­er by the active chair­per­son Moore, her nom­i­na­tion rat­i­fied as the law requires, in ample time to make the appoint­ment accord­ing to the above statute. 

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Still, at this time the coun­ty attor­ney con­tin­ues to “pro­vide guid­ance” to the com­mis­sion that it “is not com­plete­ly clear” who is right. Per­haps from the coun­ty attorney’s per­spec­tive, the ques­tion whether the orig­i­nal nom­i­na­tion was law­ful is a gen­uine con­cern. I will give him that. But if his con­cern were gen­uine, there would be ways to dis­cov­er who is right and who is wrong accord­ing to the law. He could sim­ply con­vene and ask the ques­tion of those who took part in the Novem­ber Zoom meet­ing whether the pro­vi­sions of law were fol­lowed. Why hasn’t that hap­pened? Well, accord­ing to sev­er­al com­mis­sion­ers, speak­ing direct­ly to me, they feel it is sim­ply not their job to cer­ti­fy the work of the Forsyth GOP. Accord­ing to those com­mis­sion­ers, it’s sole­ly the GOP’s job. But is that real­ly the case? 

So, who’s Job is it really to certify legal process is followed in appointing BRE members?

As it turns out, I was mis­tak­en expect­ing that the Forsyth Coun­ty Com­mis­sion could plead blame­less in this elec­tion board appoint­ment fias­co, as are those board mem­bers who so con­tend. The Forsyth Code of Ordi­nances makes it clear that the Board of Com­mis­sion­ers bears a sub­stan­tial bur­den to exer­cise due dili­gence pri­or to cer­ti­fy­ing any appoint­ment to the BRE. Accord­ing to the Forsyth Coun­ty Code of Ordi­nances, Sec­tion 4, rather than rub­ber-stamp­ing any name the coun­ty attor­ney presents to the board of com­mis­sion­ers, as was done in Feb­ru­ary with the name of Mr. Natt, that body is required to actu­al­ly per­form some work. That is because the law requires the board of com­mis­sion­ers to CERTIFY the polit­i­cal par­ty mak­ing a nom­i­na­tion fol­lowed all the rules pro­vid­ed in the law. The law does not allow the com­mis­sion­ers to sim­ply assume all legal process­es have been fol­lowed when a nom­i­na­tion is read aloud by the coun­ty attor­ney dur­ing a meet­ing of the board: 

Sec­tion 4. — Cer­ti­fi­ca­tion of appointments.

(a) The appoint­ment of each mem­ber shall be made by the coun­ty gov­ern­ing author­i­ty fil­ing an affi­davit with the clerk of the supe­ri­or court, no lat­er than 30 days pre­ced­ing the date at which such mem­ber is to take office, stat­ing the name and res­i­dence address of the per­son appoint­ed and cer­ti­fy­ing that such mem­ber has been duly appoint­ed AS PROVIDED IN THIS ACT.

Cer­ti­fy­ing a nom­i­nee to the board of elec­tions would not be a dif­fi­cult or time-con­sum­ing activ­i­ty for the coun­ty com­mis­sion to under­take. Cer­ti­fi­ca­tion of a nom­i­nee could be done by a polit­i­cal par­ty in ques­tion sup­ply­ing a duly-enact­ed res­o­lu­tion empow­er­ing its exec­u­tive board mem­bers to act accord­ing to the law­ful pro­vi­sions afford­ed it, embossed with the party’s offi­cial stamp, along with an accom­pa­ny­ing let­ter, signed by the chair­per­son and a major­i­ty of the exec­u­tive board mem­bers vot­ing in the affir­ma­tive for the nom­i­nee, their sig­na­tures duly nota­rized. That’s all it would take for the Forsyth Coun­ty Board of Com­mis­sion­ers to com­ply with its own elec­tion board appoint­ment ordi­nance. But that body wants us to believe oper­at­ing in com­pli­ance with their own ordi­nance would not only be dif­fi­cult, but also an exer­cise in gov­ern­ment overreach. 

Forsyth County Commissioners refuse to answer

I have con­veyed this infor­ma­tion, and more, in writ­ing, to each Forsyth Coun­ty Com­mis­sion­er. Fur­ther­more, I have spo­ken per­son­al­ly with each mem­ber of the com­mis­sion, some more than once. As you will hear in the video below, Com­mis­sion Chair Alfred Johns would only say that the board is being guid­ed by coun­ty attor­ney Ken Jar­rard. No mat­ter how I phrased my ques­tions to the chair­man, that they are being guid­ed by the coun­ty attor­ney would be his only answer, appar­ent­ly care­ful not to say any­thing Mr. Jar­rard had not pre-screened. Con­ver­sa­tions like this beg the ques­tion, whether Forsyth Coun­ty is being man­aged by elect­ed board mem­bers, or by an unelect­ed coun­ty attorney. 

Sub­se­quent­ly, I addressed the com­mis­sion­ers direct­ly at the August 3rd meet­ing (start video at 5 min:10 sec) allow­ing pub­lic par­tic­i­pa­tion. After that meet­ing, Com­mis­sion­er Cindy Jones would only say to me that coun­ty attor­ney Ken Jar­rard doesn’t agree with me, and, sim­i­lar to my con­ver­sa­tion with Chair­man Johns, she was care­ful not to say much of any­thing else. But I will give Com­mis­sion­er Jones cred­it. Very thank­ful­ly, Ms. Jones offered that she asked Mr. Jar­rard to answer my con­cerns in writ­ing, a request to which, accord­ing to Ms. Jones, Mr. Jar­rard respond­ed he would do if direct­ed by the board. 

I have also heard from Com­mis­sion­er Todd Lev­ent, who like Ms. Jones, has also request­ed my con­cerns be answered by Attor­ney Jarrard. 

The oth­er three com­mis­sion­ers, Johns, Seman­son and Hill appear stonewalling against answer­ing legit­i­mate con­cerns, but why? Why would our elect­ed board of com­mis­sion­ers care whether a cit­i­zen receives an answer to his ques­tions? Is there some man behind the cur­tain pulling the levers of Forsyth Coun­ty Gov­ern­ment? Are these indi­vid­u­als work­ing to pro­tect a ques­tion­ably-law­ful BRE appoint­ment? Are they just plain stub­born? I con­fess, I do not know. But I will say this, I do not like it when the com­mis­sion­ers Forsyth Coun­ty vot­ers elect to run their gov­ern­ment are afraid to speak open­ly, with­out legal fil­tra­tion, to the vot­ing pub­lic, feel­ing the need to appeal to their attor­ney, who they will not autho­rize to speak either. 

So this is where we are, two weeks before Mr. Joel Natt strolls into his 4‑year appoint­ment on the Forsyth Coun­ty Board of Elec­tions. If noth­ing more hap­pens in all of this, the seat will be his. 

That begs the ques­tion, what would be so awful were Mr. Natt, inci­den­tal­ly now find­ing sup­port from the Forsyth Coun­ty Demo­c­ra­t­ic Par­ty, to take his seat for the next four years on the Forsyth Coun­ty Board of Reg­is­tra­tions and Elec­tions? The sev­er­al answers to that ques­tion will be the sub­ject of my next Sub­stack, one you will not want to miss.