ATLANTA – The state and national Democratic parties sued Monday to block two recent rules adopted by Georgia's State Election Board that could be used by county officials who want to refuse to certify an election, potentially causing delays in finalizing the state’s results.
The lawsuit, filed before a state judge in Atlanta, argues the rules violate a state law that makes certification a mandatory duty. The suit asks the judge to find the rules are invalid because the State Election Board, now dominated by allies of former President Donald Trump, is exceeding its legal authority.
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The actions of the board alarm Democrats and voting rights activists, playing out against Georgia's background of partisan struggle over voting procedures that predates even the 2020 presidential election. It’s a battle in yet another state over what had long been an administrative afterthought, state and local boards certifying results.
The lawsuit says the rules invite post-election chaos, that the board is defying state law that says county officials “shall certify” results, and that more than a century of court precedent in Georgia finds county officials have no wiggle room.
“According to their drafters, these rules rest on the assumption that certification of election results by a county board is discretionary and subject to free-ranging inquiry that may delay certification or foreclose it entirely. But that is not the law in Georgia” states the lawsuit, filed in Fulton County Superior Court.
Pro-Trump Republicans argue the rules just reinforce a county election board's existing duty to thoroughly examine election results, noting each board member must swear an oath to compile “true and perfect” results.
"These common-sense changes will benefit all Georgians, regardless of political affiliation as they are all designed to increase transparency and public confidence regarding our elections," state Republican Party Chairman Josh McKoon said in a statement defending the rule changes earlier Monday, before the lawsuit was made public.
A trio of Republican partisans aligned with Trump took control of the five-member regulatory board earlier this year. It has no direct role in determining election results, but writes rules to ensure that elections run smoothly and hears complaints about violations.
Trump praised those members by name during an Aug. 3 rally in Atlanta saying the three “are all pit bulls fighting for honesty, transparency and victory,” but criticizing the Democrat on the board and the nonpartisan chairman appointed by Gov. Brian Kemp, saying they “aren’t so good.”
That, plus McKoon praising the takeover of the board and later emailing proposed rules to board members, has led Democrats to allege a once sleepy board is now a direct tool of Trump.
“The Georgia state elections board is becoming an equal co-conspirator in this effort to suppress our votes," Democratic U.S. Rep Lucy McBath charged Monday in a news conference at the Georgia Capitol. "With passing this new rule, they are creating barriers to counting votes and certifying the election so Donald Trump can once again attempt to throw our country into chaos.”
A Democratic state senator and the former chair of the Fulton County elections board have both sent letters demanding that Kemp remove the three Trump-aligned members for violating state ethics laws. Kemp on Monday asked Republican Attorney General Chris Carr to determine whether Kemp has legal jurisdiction to consider the demands.
The Democratic lawsuit specifically cites language added by one rule to require county election officials to conduct a “reasonable inquiry” before certifying results. It also takes aim at a second rule that allows county election officials “to examine all election related documentation created during the conduct of elections.”
Alleged fraud or misconduct should be handled by the courts, not by county officials as they tally results, the suit argues, citing more than a century of Georgia court rulings.
While the new rules could be read as consistent with Georgia law, allowing only review or examination that wouldn’t delay certification, “that is not what the drafters of those rules intended,” the lawsuit says, citing their testimony before the board.
The first rule does not define “reasonable inquiry” and the second “has no basis in the election code or case law,” the suit argues.
It's unclear whether counties could successfully refuse to certify. They would face lawsuits asking judges to order county boards to perform their legal duties. And it's unlikely Fulton County or any of the state's five other most populous counties, all reliably Democratic, would reject certification. Instead refusals to certify would likely come from smaller, more Republican counties.
In Georgia, state officials had to order rural Coffee County to certify in 2020. In May Republican-appointed Fulton County election board member Julie Adams refused to certify primary election results after she filed a lawsuit backed by the Trump-aligned America First Policy Institute that argues county election board members have the discretion to reject certification.
The lawsuit was filed by county election board members from counties in metro Atlanta, most chosen by the local Democratic Party, as well voters who support Democrats, two Democratic state lawmakers running for reelection and the state and national Democratic parties.