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The Georgia State Election Board and state Republicans will head to trial Tuesday as they fight Democrats’ effort to get a judge to declare that county election boards must certify the upcoming election’s results by the November deadline set under Georgia law.
The Democratic National Committee and Democratic Party of Georgia sued the election board after it passed two rules in August that increase local officials’ powers and responsibilities before the Nov. 12 county certification deadline. While the rules don’t change the deadline, Democrats fear local officials will point to the rules in order to refuse to certify the results on time.
“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 render it wholly optional,” Democrats said in their brief ahead of the trial.
Democrats are asking Judge Robert C. I. McBurney to issue what’s called a “declaratory judgment” making clear ahead of the election that state certification deadlines are mandatory and the new rules don’t change that. McBurney is holding a bench trial, in which a judge decides the full case without a jury.
What do the new rules do?
One of the two rules at issue requires election officials to conduct a “reasonable inquiry” into the accuracy of the election results before certifying them, without defining what a “reasonable inquiry” is. The other allows individual county election board members to examine documentation that was created as the election was being conducted.
The rules were passed by three members of the state election board after former President Donald Trump praised them each by name at an Aug. 3 Atlanta campaign rally, calling them “pit bulls fighting for honesty, transparency, and victory.” The two remaining members – a Democrat and the nonpartisan board chair who was appointed by Republican Governor Brian Kemp – objected but were outvoted.
The two rules are part of a series of last-minute changes to the November election by the same three board members. Those changes have sparked bipartisan concern, with many worrying the changes could delay election results and be used to cast doubt on the election’s integrity.
Georgia Republican Secretary of State Brad Raffensperger, who famously refused Trump’s request to “find” nearly 12,000 votes to overturn Trump’s 2020 election loss in Georgia, previously told USA TODAY that the board’s efforts to change result certification requirements in the final few months before the election “are a mess.”
Democrats sued on Monday to block a separate rule that Georgia Republican Attorney General Chris Carr advised the board was probably unlawful. That Sept. 20 rule requires thousands of Georgia voting precincts to hand-count ballots and match the totals to figures produced by machines.
What is the election board arguing?
In its own brief to McBurney, the election board appeared to agree with Democrats that county election results certification is a mandatory duty.
“Petitioners ask this Court to declare what is already enshrined in Georgia law: the fact that certification is a mandatory act that must occur at the county level by a certain date,” the election board said.
Yet despite agreeing with Democrats on that point, the board is fighting Democrats’ legal effort to get a judge to make that clear. It says the lawsuit should be dismissed because it’s premature – a court declaration wouldn’t be appropriate where the controversy “is based on possible or probable future contingencies,” according to the brief.
The board is also arguing that it is shielded from the lawsuit by the doctrine of sovereign immunity, which protects the government from being sued without its consent.
What does the Georgia GOP say?
The Republican National Committee and the Georgia Republican Party won permission from Judge McBurney to jump into the case and weigh in separately.
In their brief to the court ahead of the trial, they tried to turn Democrats’ concern about injecting chaos into the election process onto its head by saying the lawsuit is the real threat.
Blocking the rules “in the final weeks before voting starts would inject judicially created confusion,” they said. “It is policymakers—not judges—who should make ‘policy choices on the ground before and during an election.'”
