Georgia judge counters GOP-led state election board on certification and hand counts

ATLANTA — Local election board members in Georgia cannot refuse to certify election results in any scenario, even if they report concerns about fraud or errors, a state judge ruled Tuesday.

“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,” Fulton County Superior Judge Robert McBurney wrote in his decision. “Our Constitution and our Election Code do not allow for that to happen.”

In a separate ruling, McBurney also temporarily blocked a last-minute rule requiring poll workers to hand count the number of ballots cast on Election Day.

Both decisions were rebukes to the Republican-led Georgia State Election Board.

The certification ruling comes as several GOP local election board members have already declined to certify election results from primary contests earlier this year, and after the State Election Board passed new rules that appeared to allow this discretion. Georgia’s Republican secretary of state has long emphasized that certification is not optional under Georgia law.

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

McBurney has yet to decide on the new State Election Board certification rules themselves, which are being challenged in several other lawsuits.

In delaying implementation of the hand-count rule, McBurney wrote that the rule is “too much, too late,” preventing enforcement until after the court can fully consider the validity of the rule after the election.

New election rules

One rule 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.”

Several Democratic local election officials and voters, as well as the Democratic Party of Georgia and the Democratic National Committee, filed a lawsuit asking the courts to overturn the rules, or at least affirm that under Georgia law, local election boards’ duty to certify is mandatory, not discretionary.

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

The Republicans on the State Election Board have faced scrutiny for a series of rule changes ahead of the November election that have been praised by former President Donald Trump. The last-minute tinkering with election rules has drawn criticism not only from Democrats and local election officials, who are scrambling to train poll workers, but also Georgia’s Republican secretary of state and attorney general.

A trial over certification rules

During a roughly two-hour trial, lawyers challenging the certification rules and those defending them agreed Georgia law is clear that election results must be certified by the state deadline. But they fought over whether the court should go further to rein in potentially rogue election officials who may not comply.

“We’re going to assume that public officials are going to fulfill their duty in good faith,” argued Elizabeth Young, the state’s senior assistant attorney general. “You do your best and you certify and you turn whatever the issue is that you think is not quite resolved over to the district attorney.”

McBurney was skeptical. “I happen to live in a county where a member of a board didn’t certify, so I’m wondering when we need to set aside this presumption when faced with real-life examples,” he replied, referencing Fulton County, where Republican members including Adams already declined to certify election results earlier this year. Similar votes have occurred in other Georgia counties and in other swing states since 2020.

Attorneys challenging the rules pressed McBurney for a ruling making it undisputable that local election board members must certify.

In fact, later that same day, McBurney heard arguments in the lawsuit from Adams, the Fulton County election board member.

Her lawyer, who works for the Trump-aligned America First Policy Institute, argued that individual board members can vote against certifying or decline to certify certain buckets of votes as long as the board as a whole still moves to certify votes that are “correct.”

In his Tuesday ruling, McBurney did agree that any election information not protected from disclosure that is needed to inspect or conduct elections should be promptly provided to election board members. But he made clear that not receiving that information is not grounds to vote against certifying.

“[Election s]uperintendents are rule-writers, personnel trainers and managers, logisticians, marketers, and accountants. Much of what they do is left to their broad, reasoned discretion. But not everything -- some things an election superintendent must do, either in a certain way or by a certain time, with no discretion to do otherwise,” McBurney wrote.

“While the superintendent must investigate concerns about miscounts and must report those concerns to a prosecutor if they persist after she investigates, the existence of those concerns, those doubts, and those worries is not cause to delay or decline certification,” he wrote.

In a statement put out by the America First Policy Institute, 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.”

The decision can be appealed, so litigation may be ongoing as Election Day nears.

Hand-counting ballots

Approved by the State Election Board in September, the hand-count rule would have required the poll manager and two poll officers in every precinct to each count the number of paper ballots cast on Election Day. They would then compare that number with the total generated by the ballot scanner.

But some local election officials testified against the rule, saying human error could easily result in discrepancies between the hand and machine counts. They also warned that changing the rules so late in voting season could cause confusion, with poll working training underway in many counties.

The Cobb County Board of Elections sued to block the rule.

In his 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 wrote that the last-minute timing risks causing “uncertainty and disorder.”

“A rule that introduces a new and substantive role on the eve of election for more than 7,500 poll workers who will not have received any formal, cohesive, or consistent training and that allows for our paper ballots — the only tangible proof of who voted for whom — to be handled multiple times by multiple people following an exhausting Election Day all before they are securely transported to the official tabulation center does not contribute to lessening the tension or boosting the confidence of the public for this election,” he wrote.