ATLANTA – A judge is considering whether to issue clarification or guidance for two new rules from the Georgia State Election Board that have to do with county certification of election results.
Supporters of the rules say they are necessary to ensure the accuracy of the vote totals before county election officials sign off on them. But critics worry that supporters of Republican presidential nominee Donald Trump could use the rules to delay or deny certification if the former president loses the state to Democratic Vice President Kamala Harris, causing confusion and casting doubt on the results.
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When asked by Fulton County Superior Court Judge Robert McBurney on Tuesday, all of the parties in a lawsuit challenging the rules agreed that certification is mandatory, that it must happen by Nov. 12 at 5 p.m. for this year's general election and that the State Election Board cannot change the certification deadline.
One new rule provides a definition of certification that includes requiring county officials to conduct a “reasonable inquiry” before certifying results, but it does not specify what that means. The other includes language allowing county election officials “to examine all election related documentation created during the conduct of elections.”
The state and national Democratic parties, several county election board members, Democratic voters and two Democratic state lawmakers running for reelection filed the lawsuit against the State Election Board, which is dominated by three Republican partisans whom Trump praised by name at a recent rally in Atlanta.
The suit asks the judge to confirm that election superintendents, which are multi-person boards in many counties, have no discretion to withhold or delay certification. It also asks him to declare the two new rules invalid if he believes they allow such discretion.
Also Tuesday, McBurney heard arguments in a lawsuit filed by Republican Fulton County election board member Julie Adams, who has asked him to declare that the duties of county election board members are discretionary, not ministerial.
McBurney did not immediately rule in either case but said he would do so soon.
He did not seem inclined to invalidate either new rule passed by the State Election Board. But he said the “reasonable inquiry” rule “on its face, is vague and needs clarification.” He seemed less concerned by the “examination rule,” which uses “shall be permitted” language rather than the mandatory “shall.”
“The reason we're here, honestly, is because reasonable inquiry is so undefined,” said Ben Thorpe, a lawyer for some of those challenging the rules. Discussion when the rule was adopted and the way proponents advanced it “indicates that there is uncertainty about the scope of how far reasonable inquiry can go,” he argued.
McBurney suggested the scope was limited by the certification deadline defined in law, that county election officials can't carry their inquiry beyond that date.
“The deadline is the deadline. Get done what you can. And what is reasonable to one person might be not reasonable to another, but you're making your inquiry and then it's wheels up at 5 p.m. on the 12th of November,” the judge said.
Thorpe argued that “to the extent that the court does not invalidate the rule,” the judge should make clear in an order that certification has to happen by the deadline because the rule does not.
The judge asked Beth Young, a lawyer with the state attorney general's office, whether the State Election Board had “a perspective on the value of clarifying the interplay between the rules and the statute” or whether anything needs clarification, noting, “There's law and there are rules, and rules can't change the law.”
Young suggested that no action by McBurney was necessary, saying, “basically you're being asked to sort of reaffirm that the law says what it says and the regulation says what it says.”
Republicans who hold a 3-2 majority on the State Election Board have used their power to pass numerous election rules in recent months, mostly over the objections of the board's Democratic appointee and its nonpartisan chair. Secretary of State Brad Raffensperger, an association of county election officials and the state attorney general's office have all cautioned against adopting new rules so close to the election, saying it could cause confusion and put unnecessary burden on election workers.
The new rules have drawn multiple lawsuits.
State and local Democrats, and some county election officials, on Monday filed a lawsuit challenging a rule that requires three poll workers to each count the paper ballots — not votes — by hand at polling places once voting ends on Election Day.
A separate lawsuit filed by a group led by a former Republican lawmaker initially challenged the two certification rules and was amended last week to also challenge the ballot-counting rule and some others that the board passed.
In the other case, lawyers for Adams argued that a county election board member has the discretion to vote not to certify results. They also argued that county election officials could certify results without including ballots that appear to have problems, allaying concerns of a board member who might otherwise vote not to certify.
McBurney seemed taken aback by that suggestion, saying that would leave people “whose votes don’t count.”
The judge suggested election board members can flag concerns to be handled by a prosecutor or through a civil election challenge but that they must certify the results.