Georgia judges counter GOP-led state election board on certification and hand counts

Then, on Wednesday, Fulton Superior Judge Thomas Cox Jr. invalidated the certification and hand-counting rules, among others, declaring them “illegal, unconstitutional and void.”

Cox found that the State Election Board overstepped its authority and that the rules violated specific Georgia laws, the Georgia Constitution and the U.S. Constitution.

He directed the State Election Board to immediately notify state and local election officials that the rules are not to be followed.

Cox voided seven new rules in total, including measures expanding access for poll watchers to additional areas, requiring more video surveillance of ballot drop boxes and mandating a photo ID and signature of anyone returning an absentee ballot for someone else. 

His ruling may be appealed.

The State Election Board’s Republican-led majority has faced scrutiny for this series of rule changes ahead of the November election. The last-minute tinkering has been cheered by Trump and some GOP allies, and has drawn criticism not only from Democrats and local election officials, who are scrambling to train poll workers with early voting now underway, but also Georgia’s Republican secretary of state and attorney general.

Debates over certification

Certifying election results at the county level is a critical step leading up to the Electoral College vote.

One rule from the state board says local boards should conduct a “reasonable inquiry” into the accuracy of the count before certifying results. The other says local board members must be allowed to examine all election-related documents “prior to certification of results.”

The new rules followed several GOP local election board members declining to certify election results from primary contests earlier this year.

Democrats and some local election officials worried these rules implied that local election board members could vote to cancel election results or specific batches of votes, even as Georgia’s Republican Secretary of State made clear they do not have this authority.

Republicans aligned with Trump have attempted to disrupt certification in other contested states in recent years, though the courts or state officials have each time stepped in to ensure certification proceeded. But election observers warn that even unsuccessful attempts to block certification could result in disruptions or open the door for misinformation about the integrity of the election – which could have sweeping consequences in a critical swing state.

A flurry of lawsuits

As battles over certification rules unfolded this year in Georgia, they also spurred lawsuits.

Julie Adams, a Republican member of the Fulton County Board of Elections who has declined to certify multiple elections this year, asked the court to rule that her duty to certify is discretionary – not mandatory. 

Two separate lawsuits – one brought by the Democratic National Committee and other groups, and another brought by a Republican group led by a former state lawmaker – asked the courts to do the opposite: declare certification mandatory and invalidate the new rules.

On Tuesday, McBurney ruled against Adams.

“If election superintendents were, as Plaintiff urges, free to play investigator, prosecutor, jury, and judge and so – because of a unilateral determination of error or fraud – refuse to certify election results, Georgia voters would be silenced,” McBurney wrote in his decision. “Our Constitution and our Election Code do not allow for that to happen.”

In a Tuesday statement distributed by the Trump-aligned America First Policy Institute, which represented her, Adams nevertheless lauded the ruling.

“Judge McBurney has affirmed that I, as a board member, have a statutory duty to ‘cross-check’ the election returns, procedures, etc.,” Adams said. “That is where all of this started — when I was denied access to the full range of the election procedures and materials.”

In his Tuesday ruling, McBurney had yet to weigh in on the certification rules themselves.

Then on Wednesday, in another courtroom one floor away, Judge Cox went a step further, invalidating the certification rules and others in their entirety.

Hand counting ballots and other last-minute changes

Among those new state rules was a controversial measure that would have required the poll manager and two poll officers in every precinct to each hand count the number of paper ballots cast on Election Day. They would then compare that number with the total generated by the scanner.

Many local election officials pushed back, saying human error could easily result in discrepancies between the hand and machine counts. More critically, they worried that changing the rules so late in the voting season could cause confusion. 

The Cobb County Board of Elections and other election offices sued to block the rule.

In a Tuesday ruling pausing the hand counts, McBurney wrote that on its face, the measure seems in line with the purview of the State Election Board – ensuring fair, legal and orderly elections. But he declared the rule “too much, too late,” writing that the last-minute timing risks causing “uncertainty and disorder.”

But on Wednesday, Cox again went further – invalidating the rule for good in a suit brought by the Republican group, Eternal Vigilance Action.

Assessing the suite of rules passed in recent weeks by the State Election Board, Cox found that it had overreached. 

“This is a victory for the Constitution and the principle of separation of powers,” Scot Turner, the former Republican state lawmaker whose group, Eternal Vigilance Action, brought one of the suits. “Every conservative should see this as a win and significant pushback on an unelected board making law.”