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It's been the news in the Trump-leaning media that Georgia's RULE 183-1-14-0.6-.14 Secure Absentee Ballot Drop Boxes had expired prior to the Nov election, allegedly because no such emergency rule can be valid for more than 120 days and it was last adopted/modified on Jun 1st.

Under Georgia law, emergency rules adopted by any state agency or regulatory body automatically expire 120 days after their adoption(see § 50-13-4-b).

On the other hand, I've seen mentioned in the press twice that that rule was valid for a bit more, approximately 6 months. This was said in relation to both the June 1 modification/extension:

Processing absentee ballots- Some of the changes we’re making are getting rid of reference to June 9. Dropbox rule- One change is the deleting the reference to the June 9 election only. It will still be an emergency rule in place for six months. To make it permanent we would have to go over the rule making process which I envision us doing.

and in relation to the Nov 23 one.

Drop boxes will remain stationed at county elections offices and certain polling locations. Registered voters are able to avoid in-person interaction and mailing in their ballots if they use the drop box associated with their county. The board extended this rule to February 5, falling short of the six-month emergency rule provision.

So, who is right here? Can the Board only issue emergency rules valid for max 120 days? Or up to 6 months? What would be the legal basis of the latter?

I'll note that in response to a lawsuit (on another matter--the Prompt Notification Rule [for absentee ballot rejections] 183-1-14-.13), Georgia's Attorney General's office recognizes that § 50-13 applies to (at least some) rules issued by the state election board:

The Georgia Administrative Procedure Act, O.C.G.A. §§ 50-13-1 through 50-13-44, specifically provides a framework for the General Assembly to review and acquiesce in the rules promulgated by regulatory bodies such as the State Election Board.

So, the question is then one of interpretation of those provisions, I suppose.

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According to the Georgia law on emergency rules:

The rule may be effective for a period of not longer than 120 days but the adoption of an identical rule under paragraphs (1) and (2) of subsection (a) of this Code section is not precluded; provided, however, that such a rule adopted pursuant to discharge of responsibility under an executive order declaring a state of emergency or disaster exists as a result of a public health emergency, as defined in Code Section 38-3-3, shall be effective for the duration of the emergency or disaster and for a period of not more than 120 days thereafter.

The second half of this looks a little ambiguous to me. When it says "such a rule", is it referring to the emergency rule, or to the "identical rule"?

I believe it's probably referring to the emergency rule, in which case the rule could be effective for at most 120 days after the expiration of the emergency, rather than 120 days total.

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  • The real q is if that section (50-13-4) applies to the election Board. Where on earth did the press and even the board members read that the validity for their emergency rules is 6 months?? They clearly seem to think that (on two different occasions), so there has to be a competing law or regulation somewhere, more specific to the election Board emergency rules. (Whatever that may be, whether it overrides the general provision on emergency rules 50-13-4 that the Star and you have quoted is another matter.)
    – Fizz
    Dec 20 '20 at 23:53
  • That law has a long and convoluted 50-13-2 definitions section which doesn't explicitly mention the elections board as either included or excluded from the definition of "agency" that subsequent rules making sections (like 50-13-4) apply to. (But for example the State Board of Pardons and Paroles is explicitly excluded in 50-13-2 from being bound by rest of those provisions. The list of explicit exclusions is actually fairly long, but the elections one isn't mentioned. The section also has a catch all exclusion "all public authorities except as otherwise expressly provided by law".)
    – Fizz
    Dec 21 '20 at 0:13
  • ... which means that some other law can "externally" add to the exclusion list in 50-13-2.
    – Fizz
    Dec 21 '20 at 0:18
  • On the other hand some election board pages like sos.ga.gov/index.php/elections/4 do mention 50-13, so it probably does apply to them.
    – Fizz
    Dec 21 '20 at 0:30
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    @Fizz I did poke around a little in the part of Georgia law that creates the election board (Title 21, Article 2) before answering, and didn't see anything that would exclude them from the list. Of course, I'm not a lawyer nor a Georgia resident so I can't say I'm 100% sure that nothing exists elsewhere in Georgia law.
    – D M
    Dec 21 '20 at 2:09

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