Georgia judge blocks ballot counting rule and says county officials must
certify election results
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[October 16, 2024]
By KATE BRUMBACK
ATLANTA (AP) — A judge has blocked a new rule that requires Georgia
Election Day ballots to be counted by hand after the close of voting.
The ruling came a day after the same judge ruled that county election
officials must certify election results by the deadline set in law.
The rulings are victories for Democrats, liberal voting rights groups
and some legal experts who have raised concerns that Donald Trump’s
allies could refuse to certify the results if the former president loses
to Democratic Vice President Kamala Harris in next month’s presidential
election. They have also argued that new rules enacted by the
Trump-endorsed majority on the State Election Board could be used to
stop or delay certification and to undermine public confidence in the
results.
The State Election Board last month passed the rule requiring that three
poll workers each count the paper ballots — not votes — by hand after
the polls close. The county election board in Cobb County, in Atlanta’s
suburbs, had filed a lawsuit seeking to have a judge declare that rule
and five others recently passed by the state board invalid, saying they
exceed the state board’s authority, weren’t adopted in compliance with
the law and are unreasonable.
In a ruling late Tuesday, Fulton County Superior Court Judge Robert
McBurney wrote, that the hand count rule “is too much, too late” and
blocked its enforcement while he considers the merits of the case.
McBurney on Monday had ruled in a separate case that “no election
superintendent (or member of a board of elections and registration) may
refuse to certify or abstain from certifying election results under any
circumstance.” While they are entitled to inspect the conduct of an
election and to review related documents, he wrote, “any delay in
receiving such information is not a basis for refusing to certify the
election results or abstaining from doing so.”
Georgia law says county election superintendents — generally multimember
boards — “shall” certify election results by 5 p.m. on the Monday after
an election, or the Tuesday if Monday is a holiday as it is this year.
The two rulings came as early in-person voting began Tuesday in Georgia.
In blocking the hand count rule, McBurney noted that there are no
guidelines or training tools for its implementation and that the
secretary of state had said the rule was passed too late for his office
to provide meaningful training or support. The judge also wrote that no
allowances have been made in county election budgets to provide for
additional personnel or expenses associated with the rule.
“The administrative chaos that will — not may — ensue is entirely
inconsistent with the obligations of our boards of elections (and the
SEB) to ensure that our elections are fair legal, and orderly,” he
wrote.
The state board may be right that the rule is smart policy, McBurney
wrote, but the timing of its passage makes implementing it now “quite
wrong.” He invoked the memory of the riot at the U.S. Capitol by people
seeking to stop the certification of Democrat Joe Biden's presidential
victory on Jan. 6, 2021, writing, “Anything that adds uncertainty and
disorder to the electoral process disserves the public.”
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Fulton County Superior Court Judge Robert McBurney looks through
paperwork, Monday, Aug. 14, 2023, in Atlanta. (AP Photo/Brynn
Anderson, File)
During a hearing earlier Tuesday, Robert Thomas, a lawyer for the
State Election Board, argued that the process isn’t complicated and
that estimates show that it would take extra minutes, not hours, to
complete. He also said memory cards from the scanners, which are
used to tally the votes, could be sent to the tabulation center
while the hand count is happening so reporting of results wouldn’t
be delayed.
State and national Democratic groups that had joined the suit on the
side of the Cobb election board, along with the Harris campaign,
celebrated McBurney's ruling in a joint statement: “From the
beginning, this rule was an effort to delay election results to sow
doubt in the outcome, and our democracy is stronger thanks to this
decision to block it.”
The certification ruling stemmed from a lawsuit filed by Julie
Adams, a Republican member of the election board in Fulton County,
which includes most of the city of Atlanta and is a Democratic
stronghold. Adams sought a declaration that her duties as an
election board member were discretionary and that she is entitled to
“full access” to “election materials.”
Long an administrative task that attracted little attention,
certification of election results has become politicized since Trump
tried to overturn his loss to Democrat Joe Biden in the 2020 general
election. Republicans in several swing states, including Adams,
refused to certify results earlier this year and some have sued to
keep from being forced to sign off on election results.
Adams' suit, backed by the Trump-aligned America First Policy
Institute, argued county election board members have the discretion
to reject certification. In court earlier this month, her lawyers
also argued county election officials could certify results without
including certain ballots if they suspect problems.
Judge McBurney wrote that nothing in Georgia law gives county
election officials the authority to determine that fraud has
occurred or what should be done about it. Instead, he wrote, state
law says a county election official's “concerns about fraud or
systemic error are to be noted and shared with the appropriate
authorities but they are not a basis for a superintendent to decline
to certify.”
The Democratic National Committee and Democratic Party of Georgia
had joined the lawsuit as defendants with the support of Harris'
campaign. The campaign called the ruling a “major legal win.”
Adams said in a statement that McBurney's ruling has made it clear
that she and other county election officials “cannot be barred from
access to elections in their counties.”
A flurry of election rules passed by the State Election Board since
August has generated a crush of lawsuits. McBurney earlier this
month heard a challenge to two rules having to do with certification
brought by the state and national Democratic parties. Another Fulton
County judge is set to hear arguments in two challenges to rules
tomorrow — one brought by the Democratic groups and another filed by
a group headed by a former Republican lawmaker. And separate
challenges are also pending in at least two other counties.
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