ATLANTA — A Georgia judge has ruled county election officials must certify election results by the deadline set in law and cannot exclude votes from certification even if they suspect error or fraud.
Fulton County Superior Court Judge Robert McBurney ruled late Monday 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.
As early in-person voting began Tuesday in Georgia, McBurney heard arguments in a separate case that is one of several challenging rules recently adopted by the State Election Board.
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 then-President Donald 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.
Democrats, liberal voting rights groups and some legal experts have raised concerns that 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.
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.”
Both sides in the fight over certification claimed McBurney’s ruling as a victory.
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.”
During Tuesday’s hearing, a lawyer for the Cobb County election board read McBurney’s ruling in the certification case back to him: “(T)he certainty of the electoral process that these laws have long brought to Georgia’s voters has begun to unravel as key participants in the State’s election management system have increasingly sought to impose their own rules and approaches that are either inconsistent with or flatly contrary to the letter of these laws.”
The Cobb board is asking McBurney to declare six rules recently adopted by the State Election Board invalid, saying they exceed the state board’s authority, weren’t adopted in compliance with the law and are unreasonable.
Most of the arguments focused on a rule that requires three separate poll workers to count the Election Day paper ballots - but not votes - by hand after polls close. Michael Caplan, a lawyer for the Cobb election board, said the rule’s requirements are murky and there has been no training on a rule that is to take effect two weeks before Election Day.
“That is the problem that we face,” he told McBurney. “It is not that this is a bad idea, but that it is far too close to an election to be starting this process.”
The judge noted that many county election officials have raised concerns about implementing the rule so “late in the game.”
“I’m asking you, from a practical perspective, if the goal is orderly, reliable elections, why the prudent - in terms of reasonableness - approach wouldn’t be to say let’s try this next election when all those questions can be answered with no one having to sue,” McBurney asked Robert Thomas, a lawyer for the State Election Board.
“The reason why we shouldn’t pause is that the requirement to do this and the time that it would take to do this is completely overblown,” Thomas said. He 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.
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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