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GBI declines to investigate May 24 primary in DeKalb County

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GBI declines to investigate May 24 primary in DeKalb County

DeKalb County Commission District 2 candidate Marshall Orson attends the recount of the race on Saturday, May 28, 2022. Photo by Dean Hesse.
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DeKalb County, GA — The Georgia Bureau of Investigation has declined a request by candidate Marshall Orson to investigate the May 24 primary election.

The DeKalb Board of Elections briefly postponed the certification of the May 24 primary amid questions about the District 2 County Commission race between Lauren Alexander, Orson and Michelle Long Spears.

On Election Night, May 24, Orson and Alexander lead and were headed to a runoff. But Spears raised questions on Election Day and reported that some precincts were reporting she received zero votes — including her own precinct. She took photos of the precinct-level results and showed them to Decaturish on May 30. Her supporters, including commissioners Jeff Rader and Ted Terry, began publicly raising questions about what happened, and that prompted a hand count.

Following the hand count, Orson’s vote totals decreased and Spears’ vote totals increased. Now, Alexander and Spears will be on the ballot in the June 21 runoff.

A new law, Senate Bill 441, allows for the GBI to investigate voter fraud allegations. The DeKalb County Board of Registration and Elections certified the results of the May 24 during a special called meeting on June 3, after missing the state’s certification deadline on May 31.

Elections officials have maintained that the county commission District 2 race problems were isolated and did not affect other races. Orson believed the issue was not as clear-cut, and his request for a GBI investigation was supported by state Rep. Mary Margaret Oliver (D-Decatur).

SB 441 passed the Georgia General Assembly in April, on the last day of the legislative session. It allows for the GBI to investigate voter fraud allegations.

GBI Director Vic Reynold declined to investigate for two reasons: the law actually doesn’t go into effect until July 1 and Orson did not allege any criminal offenses occurred.

“As such, your request for a criminal investigation into the May 24 DeKalb County Commission District 2 Democratic Primary is respectfully declined,” Reynold said. “Please do not hesitate to contact me if I may be of assistance in the future.”

Here is Reynold’s full letter to Orson:

Dear Mr. Orson:

I am in receipt of your email dated June 7, 2022, along with the attached request for the GBI to “exercise its investigatory authority pursuant to O.C.G.A. 35-3-4(a)(l6)” regarding the DeKalb County Commission District 2 Democratic primary election (hereinafter “the primary election”). I have reviewed your email, the attached correspondence addressed to me dated June 7, 2022, and your letter to the DeKalb Board of Elections members on June 2, 2022, seeking a recount and independent review of the election. For the following reasons, the GBI must respectfully decline your request.

As an initial matter, the primary election is not ripe for criminal investigation by the GBI. Based upon our understanding that the statute was intended to be prospective in nature, and in light of the general disfavor with which courts view the retroactive application of laws in the absence of a clear indication in the statutory text of the legislature’s intent to do so, the GBI interprets O.C.G.A. § 35-3-4(a)(16) to authorize the Bureau to investigate allegations of criminal law violations concerning elections that take place subsequent to the effective date of the statute, which is July 1, 2022.

Second, you assert that the primary election was beset by mistakes, irregularities, and a failure to abide by statutory and regulatory requirement, and that it is not only in your interest but also the larger public interest to figure out what happened to avoid a repeat and to safeguard the public confidence in upcoming elections. You further state in your June 7, 2022, email that you are “not seeking a restatement of the results or a re-running of the election.” Even assuming that the GBI had been granted the authority to investigate elections that occurred prior to July 1, 2022, the issues raised in your June 7, 2022, correspondence do not present evidence of any criminal offenses which if established would be sufficient to change or place in doubt the results of the primary election, as required by the Act.

As such, your request for a criminal investigation into the May 24 DeKalb County Commission District 2 Democratic Primary is respectfully declined. Please do not hesitate to contact me if I may be of assistance in the future.

– D. Victor Reynold, Director

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