Judge invalidates Georgia's new election certification rules

ATLANTA — A judge invalidated seven new Georgia election rules Wednesday, including requirements for a “reasonable inquiry” before elections are certified, hand counts on election night and additional access for partisan poll watchers.

Fulton County Superior Court Judge Thomas Cox Jr. declared the rules, passed by the State Election Board’s Republican majority, are “illegal, unconstitutional and void.”

Cox found that the board exceeded its authority. Election procedures are set by elected representatives, not by political appointees to the State Election Board, the judge wrote.

“The Georgia Constitution provides that only the General Assembly may provide for a law for a procedure whereby returns of all elections by the people are made to the Secretary of State,” Cox wrote in his 11-page order. “The Election Code accomplishes this and the SEB has no authority to legislate otherwise.”

Cox’s decision came in a lawsuit filed by two Republicans, former state Rep. Scot Turner and Chatham County election board member James Hall.

An attorney for the plaintiffs said during a court hearing Wednesday that the State Election Board only has the power given to it by legislators, and it can’t go further.

“Three members of the State Election Board, kind of like Napoleon, they put a crown on their head and said, ‘We are the emperors of elections.’ That is not the way our system of government works,” said Chris Anulewicz, an attorney for the Republicans opposing the rules. “The State Election Board cannot play in this space, and yet they did it anyway.”

One of the rules would have required county election board members to conduct an undefined “reasonable inquiry” before certifying elections one week after election day. Another rule permitted them to review all election documents.

Other rules that Cox struck down would have allowed poll watcher access in vote tabulation areas and required daily reporting on county websites of the number of absentee and early voters, and an election night hand count of the number of ballots cast in each precinct.

A different judge had already blocked the hand-count rule Tuesday. The manual review would have counted the number of ballots, not who received the most votes.

Defenders of the State Election Board said in court that its members were within their rights to pass statewide rules that will help safeguard accurate results and ensure ballot accounting, such as the hand count.

“The majority of this election board has identified that having this reconciliation process is important. That was a priority,” said Brad Carver, an attorney for the Georgia Republican Party. “The General Assembly can’t foresee every particular circumstance in a changing environment. That’s why we have executive branch agencies in the first place. They’re the subject matter experts.”

The latest court battle occurred as record numbers of voters turned out during the first two days of in-person early voting in Georgia. Election officials expected turnout to approach 600,000 by the end of the day Wednesday.

The new State Election Board rules were approved by the three Republicans whom Donald Trump called out by name during an Atlanta campaign rally in August, calling them“pit bulls fighting for honesty, transparency and victory.” They’ve outvoted the board’s Republican chair, appointed by Gov. Brian Kemp, and its lone Democratic member.

Turner, one of the Republicans who sued the board, said he wanted to protect voting rights and preserve the separation of powers.

“The State Election Board is not elected by anybody. They’re appointed unelected bureaucrats that have taken the role of the Legislature upon themselves. It’s not acceptable in our form of government,” Turner said.

The Georgia Democratic Party supported the Republican lawsuit fighting the rules, arguing to a judge that the GOP-led board had abused its power when mandating a hand count.

“This rule will lead to chaos,” said Sachin Varghese, an attorney for the Georgia Democratic Party. “Three different poll workers, at the end of a 14-, 16-, 18-hour day, now have to sit down and count by hand. ... This will lead to significant impairment and significant delay.”

Robert Thomas, an attorney for the State Election Board, said the rule is a reasonable way to address voters’ concerns about inaccurate counts. In some past elections, ballots have been found later after they were left behind in ballot boxes on election night.

“It’s just another way to say, is the machine right? Did it correctly count the number of ballots?” Thomas said. “The Legislature did not say you cannot hand-count ballots to ensure the numbers match. There should be an additional check.”

The cases considered Wednesday are part of a flurry of preelection litigation, much of it contesting State Election Board rules.

Besides the Republican and Democratic lawsuits, additional legal actions are pending from election boards in DeKalb and Muscogee counties. The ruling that put the hand count on hold came in a lawsuit filed by Cobb County’s election board.

In a separate decision, Fulton County Superior Court Judge Robert McBurney ruled Tuesday that state law requires county election boards to certify election results one week after election day. That case was brought by Julie Adams, a Republican election board member in Fulton County who refused to certify this spring’s primary elections.

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