ATLANTA—Yesterday, a judge held the Fulton County Board of Commissioners in contempt, ordering a fine of $10,000 per day until the Commission agrees to appoint two people nominated by the Republican Party to the Board of Registration and Elections. Today, Commissioner Marvin Arrington, Jr. released the following statement clarifying the Commissioners’ voting process, the constitutional discretion of commissioners, and the appropriate next steps regarding recent nomination votes.
“In Fulton County, it takes four affirmative votes for the Commission to act. That threshold protects deliberation and ensures consensus on the people’s business. The outcome of any vote is never guaranteed, and four affirmative votes are never guaranteed to be obtained. That is by design in our system of representative government. The General Assembly was fully aware that it takes four affirmative votes for the County to take any official action on this issue when they adopted this law, making the Fulton County Board of Commissioners the appointing authority.
Neither the General Assembly nor a court can compel a commissioner to vote ‘yea’ or ‘nay’ on any agenda item. To do so would violate the First Amendment and the fundamental right of each elected commissioner to speak—or not speak—through their vote as well as the rights of all the citizens and taxpayers we represent. The right to vote is sacred, and that right includes the right to support or withhold support on any given matter that comes before the Commission, as well as the right to abstain from voting. It can be ordered that a vote must take place, but it surely cannot lawfully be ordered what the outcome of that vote should and will be.
The County is currently unable to act on the present nominations because the required four affirmative votes do not exist for the two persons who have been nominated. For a judge to order the county and its taxpayers to be penalized $10,000 per day in contempt fines, simply because the Commission could not reach four affirmative votes, defies logic and is not reasoned, and is unconstitutional. Attempting to force us to reach a predetermined outcome on behalf of either party invades our constitutional authority as commissioners. Even the Commission’s nominee for the election board chair post requires four affirmative votes. Would we be in contempt for not obtaining four affirmative votes on behalf of our own Board of Commissioners’ nominee? Would we be subject to a fine for not confirming one of our own nominees?
Our oath is to the Constitution and to the people of Fulton County. We will continue to debate in the open, vote our conscience, and work to build consensus. When four affirmative votes exist, the County acts. When four affirmative votes do not exist, the remedy is more dialogue, better policy, or better nominations—not unconstitutional judicial compulsion of a particular vote. The case relied on by the court involves a clerk of court being mandated to perform a ministerial duty—not a commissioner performing their discretionary duty to vote. This case is also different than the elections board certification case because in that case the Board of Registration and Elections (BRE) was determined to be the superintendent of elections performing a ministerial duty.
I urge a quick appeal and we should be prepared for the long haul if necessary to defend our constitutional rights, the constitutional rights of every citizen of Fulton County against this unprecedented attack on our democracy.”
For media inquiries or to schedule an interview, please contact Rick Blalock at SNAG ENTERPRISES at rick@snagenterprises.com or (678) 516-8281.
MORE BACKGROUND INFORMATION:
Key Points
- Four Votes Required: The law requires four affirmative votes for the County to take official action.
- No Guaranteed Outcomes: The outcome of any vote is not guaranteed, and coalitions may shift based on facts, law, and policy.
- First Amendment Protection: A judge cannot compel any commissioner to vote “yea” or “nay” on a specific item without infringing the commissioner’s First Amendment rights.
- Constitutional Defect in Legislation: As written, the relevant legislation is unconstitutional because it fails to specify what happens when the County cannot secure four affirmative votes, leaving a procedural gap.
- Common Occurrence: It is not unusual for items to fail to reach four votes; in such instances, the County simply cannot act. Some items are defeated outright; others are brought back in future meetings.
- Standard Practice: Items and nominations are often amended or substituted to obtain four votes—this is a routine and legitimate legislative practice.
- Action Already Taken: The Commission has voted twice on the matter at issue and voted to file the two nominations of election deniers Julie Adams and Jason Frazier. As a result, the nominator (Fulton County GOP) should submit new nominations consistent with established practices and procedures.
- Separation of Powers: Any ruling that the Commission must confirm specific nominees intrudes on the Commission’s appointment authority and free-speech rights to deliberate and decide.
Legal Rationale and Counterargument
In this case the Court is relying on a previous case that is not similar to the current election board dispute.
Ministerial vs. Discretionary Acts: Comparisons to scenarios where a public official was ordered to perform a ministerial act (e.g., certifying an election result) are inapposite. Certification was deemed a mandatory, ministerial duty of the election superintendent—not a discretionary legislative vote by policymakers. Mandatory acts may be ordered; discretionary votes cannot be compelled. This principle is reflected broadly in doctrines like qualified immunity, which recognize protection for discretionary decision-making by officials.
Appointment Language (“Shall Appoint” / “Nominations”): Statutory language stating the Commission “shall appoint from nominations of each party” confirms that the Commission is the appointing authority. The statute uses “nominations,” plural, which contemplates multiple nominations and the practical reality that, if a nomination fails to obtain four votes, the nominator submits another name.
Limits of Judicial Relief: Courts may order that an item be placed on an agenda and voted on, but cannot order four affirmative votes. Compelling a particular outcome would usurp the constitutional role and discretion of elected commissioners.
Next Steps
In keeping with Commission practice, and given the prior votes to file the nominations of Adams and Frazier, nominators are invited to submit new nominations for consideration.
The Commission will continue to follow established rules, including the four-vote requirement, and will consider amendments or substitutions as appropriate to achieve consensus in the public interest.
