ATLANTA– Two controversial new rules adopted by Georgia’s State Election Board regarding the certification of vote tallies will be tested in court for the first time this week.
The Republican majority on the state election board — made up of three members praised by former President Donald Trump and praised by name at a recent meeting — voted to approve the rules last month. Democrats filed a legal challenge, arguing the rules could be used “to upend the legally required process for certifying election results in Georgia.”
A bench trial, meaning there is a judge but no jury, will begin Tuesday before Fulton County Superior Court Judge Robert McBurney.
One of the rules provides a definition of certification that includes: requiring provincial officials to conduct a “reasonable investigation.” before results are certified, but it doesn’t specify what that means. The other includes language allowing county election officials to “examine any election-related documentation created during the conduct of the election.”
A series of recent appointments means that Trump-backed Republicans have had a 3-2 majority on the State Election Board since May. That majority has adopted several new rules in the past two months caused concern among Democrats and others who believe Trump and his allies can use them to sow confusion and cast doubt on the results if he loses this crucial swing state in November’s presidential election to Democratic Vice President Kamala Harris.
Another rule the board recently adopted requires poll workers to work count the number of paper ballots – don’t vote – by hand on election night after voting has ended. A separate lawsuit has been filed by a group led by a former Republican lawmaker initially challenged the two certification rules, but was amended last week to also challenge the ballot-counting rule and some other rules the board adopted.
Georgia Secretary of State Brad Raffensperger and a association of provincial election officials had warned the state administration not to adopt new rules so close to the elections. They argued that this could cause confusion among poll workers and voters and undermine public confidence in the voting process.
The challenge to the certification rules filed by Democratic groups and others asks the judge to confirm that election inspectors — a multi-person election board in most counties — have a duty to certify an election within the timeframe set by law and have no discretionary authority to withhold or delay certification. They ask that it be declared invalid if the judge finds that any of the rules allow such discretion.
Lawyers for the State Election Board claim Democrats are asking the judge to “declare what is already codified in Georgia law,” that county certification is mandatory and must occur before 5 p.m. on the Monday after the election, or the next day if Monday is a holiday, like this year. They also claim that the challenge is barred by the principle of sovereign immunity and seek relief that is not appropriate under the law.
The challenge was filed by the state and national Democratic parties, as well as county election board members from metro Atlanta counties, most of which were elected by the local Democratic Party, as well as voters who support the Democrats and two Democratic state legislators who are running for office stand for re-election. It was filed against the State Election Board, and the state and national Republican parties joined the fight on the board’s side.
Democrats concede in their challenge that the two rules “can be read as not inconsistent with Georgia statutes,” but they argue that “that is not what the authors of those rules intended.”
“According to their drafters, these rules rely on the premise that a county board’s certification of election results is discretionary and subject to open scrutiny that could delay certification or make it entirely optional,” they wrote in a court filing.
They also note that numerous county election officials across the state have already tried to block or delay certification in recent elections and “the new rules give these officials new tools to do so again in November.”
State attorneys argue that since the argument against the rules is based on the alleged intentions of the people who presented them or the way some officials could interpret them, and not on the text of the rules themselves, the challenge should be thrown out swept.
State attorneys also argue that Democrats’ attempt to have the judge issue a declaratory judgment is prohibited under sovereign immunity, which protects state and local governments from lawsuits unless they agree. Democrats’ attorneys argue that this challenge falls under an exclusion provided in state law, which states that the state “has specifically consented to a lawsuit and expressly waived its sovereign immunity with respect to declaratory judgment actions that violate the rules of its agencies are being challenged.”
Lawyers for both sides are also citing a 2006 U.S. Supreme Court ruling that courts cannot change election rules just before an election.
Lawyers for the Republican groups say banning enforcement of the new rules “in the final weeks before the election begins would create legally created confusion,” which the Supreme Court’s ruling sought to protect against.
Lawyers for Democrats say the ruling applies to federal courts, not state courts, to prevent federal courts from interfering in cases involving state law. Even if it were applicable in this case, they argue, it would support their arguments because it militates against changing long-standing election rules just before an election.