- How Electors to the Electoral College are Selected in Georgia

- On calling a special session of the Georgia legislature

Why Any Actions by Governor Kemp and/or The Georgia Legislature to Change the Outcome of the 2020 Presidential Election Would
Have Been in Violation of the
State Constitution and the Laws
of the State

(para 1) The United States Constitution grants to the states the right and responsibility to select electors to the Electoral College, as each state directs through laws passed by the respective state legislatures. The structure of the legislatures of the states are established differently by the respective state constitutions. Some are full-time. Most are part-time as in Georgia. At least one is unicameral but most are bicameral, as is Georgia's. The powers of the presiding officers of the chambers are different in each state. State constitutional provisions and state laws regarding special sessions are different in each state.[1]

(para 2) Many people from other states and also from Georgia (I have received thousands of emails and numerous telephone calls from out-of-state) as well as cable news channel hosts who are not familiar with the Georgia Constitution nor Georgia law, have made false assumptions about what the Georgia constitution and Georgia law provide regarding special sessions and election law, in general.

(para 3) After the November 2, 2020 election, and through the end of December, 2020, President Trump, news commentators and many people called for the Georgia legislature to take retroactive action regarding the outcome of the 2020 General Election.

(para 4) Any retroactive action on the part of the legislature would be illegal, as explained in paragraph 6. No legislative action can be taken by the General Assembly while not in session. The regular session of the Georgia legislature (the Georgia General Assembly) convenes the second Monday in January of every year and adjourns Sine Die (with no set date to reconvene) after forty legislative days, which are normally completed between the third week of March and the second week of April. While not in session, Committees can meet and conduct hearings but no official action can be taken. Committees of both the Georgia House and the Georgia Senate held hearings regarding the presidential election in December, 2020, but they could take no official actions. There were news reports in December that a Georgia state senate committee met and filed a report to the clerk of the senate. Nevertheless, no action can be taken on that report while the legislature is not in session.

(para 5) During December, 2020, there were constant demands, including from President Trump, that a special session of the General Assembly be called. The Georgia Constitution provides a mechanism for the General Assembly to call itself into special session. However, it requires the call to have the signatures of three-fifths of the membership of each chamber. Three-fifths of the one hundred-eighty member of the Georgia House is one hundred-eight. There are only one hundred-five Republican members in the House. The numbers are not there. 

(para 6) The General Assembly can be called to special session by the Governor. However, both Governor Kemp and Lieutenant Governor Duncan stated correctly that election laws and/or any other laws cannot be changed to retroactively affect an event that has already occurred. The Georgia General Assembly passed legislation in the 1960s that provides that the winner of the popular vote in the Georgia presidential election will receive all of Georgia's electoral votes. That law, as with any other, can be changed to affect actions that will occur after enactment, but not actions that happened before its enactment. There is nothing that Governor Kemp nor the General Assembly - our Georgia state legislature - can do to change the outcome of the 2020 presidential election. It would be illegal for the Georgia legislature to direct the electors to cast their Electoral College votes in any other way than to whomever was the winner of the popular vote in the presidential election.


[1] (Note 1) Regarding Article ll, Section I, of the United States Constitution, the language therein prescribes that states will appoint the number of Electors to which they are entitled (to the Electoral College) in a manner that the state legislatures may direct.

Each state may, through statute passed and enacted by its legislature, establish the manner in which electors are chosen. Current Georgia law, which was enacted in the 1960s prescribes that the winner of the presidential election in Georgia shall receive all of its electors. Some states appoint the Electors by congressional districts. Regardless, the process for Georgia is established in Code, and unless it is ever changed, the winner of the presidential election in Georgia will receive all its Electoral votes. That cannot be changed retroactively after an election to affect an election that has already been held.

(Note 2) Folowing the November 2, 2020 elections, there were a number of individuals who claimed that the United States Constitution prescribes that individual state legislators can call their respective state legislatures to special session, regardless of what the state constitutions and statue requre. That is incorrect and untrue. The United States Constitution does not prescribe in any way how state legislative bodies are called into session.

(Note 3) With the exception of Article II as detailed in note 1 regarding the Electoral College, the United States constitution does not prescribe a method by which states assign duties or enact legislation. State legislatures pre-dated the United States constitution, and delegates to the constitutional convention were determined that the federal government would not have the authority to usurp state powers, even to the point of including in the U.S. constitution the Tenth Amendment by establishing that "the federal government has only those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved to each state." The delegates to the constitutional convention were, in fact, appointed by the state legislatures.


- Donald Lee Parsons, December 5, 2021