Judge tosses suit seeking declaration that Georgia officials don't have to certify election results

September 10th, 2024

Fulton County Superior Judge Robert McBurney on the bench. — Fulton County Superior Court Judge Robert McBurney awaits the delivery of indictments from the Grand Jury including a possible indictment of former President Donald Trump and others in Atlanta, Ga, on Monday, August 14, 2023. (Matthew Pearson/WABE)

A lawsuit arguing that county election board members in Georgia have the discretion to refuse to certify election results has been dismissed on a technicality, but the judge noted it could be refiled.

Fulton County election board member Julie Adams filed a lawsuit in May asking a judge to declare that the county election board members’ duties “are discretionary, not ministerial, in nature.” At issue is a Georgia law that says the county officials “shall” certify results after engaging in a process to make sure they are accurate.

Superior Court Judge Robert McBurney on Monday dismissed Adams’ lawsuit, saying that she had failed to name the correct party as a defendant. The Associated Press has reached out to Adams’ lawyers seeking comment on the ruling and asking if they intend to file a new complaint.

Under Georgia law, the principle of sovereign immunity protects state and local governments from being sued unless they agree to it. But voters in 2020 approved an amendment to the state Constitution to provide a limited waiver for claims where a party is asking a judge to make a declaration on the meaning of a law.

That is what Adams was trying to do when she filed her suit against the board she sits on and the county elections director. But Superior Court Judge Robert McBurney noted in his ruling that the requirements very plainly state that any such complaint must be brought against the state or local government.

McBurney noted that Adams had amended her complaint and tried to recast her claims as being brought against Fulton County alone. But, he concluded, “That was too little, too late; the fatal pleading flaw cannot be undone.”

However, McBurney noted, that does not mean this fight is necessarily over.

“This action is done, but there can be another,” he wrote. Adams “can refile, name the correct party, and we will pick up where we left off, likely with all the same lawyers and certainly with the same substantive arguments.”