A court case in Atlanta is currently examining whether it is requisite for county election boards in Georgia to sanction election results according to state deadlines, even if board members have the prerogative to probe potential issues before the deadline. As this takes place amidst growing disapproval from both parties about new regulations from the Georgia State Election Board that enhances the power and duties of local officials prior to the certification deadline in mid-November, one might wonder if there’s a carefully crafted strategy to create doubt and confusion in the minds of the public. Some critics are afraid that these new rules might delay the election outcomes and subsequently be employed to question the credibility of the election.
Judge Robert C. I. McBurney voiced his concerns saying it could result in an unstable ruling if authorized for a board member’s discretion to encompass a refusal to certify some or all of the votes. The judge is puzzled over how that aligns with the current law. These comments were made during a trial in the case of Julie Adams, a resolute Republican from Atlanta’s Fulton County Election Board who bravely refused to certify the outcomes for the May primary election.
Adams had raised questions, first hand, on the legitimacy of the vote counts. She proactively sought legal aid – suing Fulton County to obtain a declaratory judgment that would illustrate her flexibility in executing her board member duties. It would also reassure her right to necessary information she argues is essential to perform her duties adequately. The unfortunate trend has grown quite commonplace throughout the country since the 2020 Presidential election.
Besides this case, McBurney was involved in another case brought forward by the Democratic National Committee and Democratic Party of Georgia against the Georgia State Election Board. They insisted that McBurney should declare that county election boards must validate the impending election outcomes by the November deadline irrespective of these new rules. However, the Democrats avoided addressing the main issue, as they did nothing to alleviate concerns about the potentially vague phrasing in the regulations that pose risks to the democratic process.
The cynical stance taken by Democrats is evidenced in their brief ahead of the trial wherein they make outrageous assumptions, suggesting that the election results certification by county boards is optional and can be subject to an uninhibited inquiry that might delay or even reject certification entirely.
McBurney permitted the Georgia Republican Party and the Republican National Committee to challenge the baseless assertions made by the Democrats while also allowing Democratic groups to participate in Adams’ case to oppose her position. A proverbial wrestling match of political power played out without the intervention of a jury.
While Democrats and Republicans seemingly agree on the surface, the approval of the county election boards being legally obligated to certify the results by 5 p.m. EST on Nov. 12 persisted as a common thread. This date is precisely one week after Election Day. A Georgia statute explicitly states that the election returns ‘shall … be certified’ by the county superintendent no later than 5 p.m. the Monday after Election Day.
Disputes persisted over whether Judge McBurney could officially confirm this obligation before the upcoming presidential contest. Representing the Democrats, lawyer Kurt G. Kastorf mimicked his clients’ fears that, assuming no court disputes the contrary, the county officials who struggle to determine accurate vote counts might choose to exclude the vote from the certification total under the new rules.
These unjustified fears were effectively countered by the Georgia Republican Party representative, lawyer Baxter D. Drennon, who eloquently pointed out that it’s not suitable for the judge to make rulings hinged on conjectures that might never materialize. In other words, they were primarily dodging realities by pushing hypotheticals.
In another markedly insightful comment, Richard Lawson, a lawyer for Adams, joined in the agreement that certification by mid-November is obligatory. However, Lawson introduced a revolutionary idea believing that the law does not compel Adams to vote ‘yes’ for certification. He highlighted on the oath taken by board members to prevent any fraud and to make accurate returns of elections and primaries.
Judge McBurney perceives this as a tension between a perfect return and the requirement for certification, especially when a board member doubts the legitimacy of the results. However, he proposed a way out of this conundrum by advocating for a certification document that carries a comment box for each certifier.
The recently introduced regulations remain controversial as they require election officials to conduct a ‘reasonable inquiry’ into the kind of accuracy of the election results before certifying them. They also permit individual county election board members to peruse any documentation produced during the election.
The newly passed regulations were lauded by former president Donald Trump at his Atlanta campaign rally on Aug. 3, praising the three members of the state election board who passed these regulations while referring to them as ‘pit bulls fighting for honesty, transparency, and victory’. This naturally created discomfort among the remaining two members – a Democrat and the nonpartisan board chair.
These new regulations, apart from causing discomfort among the Democrats, have also instilled fear among the Republicans led by Georgia Secretary of State Brad Raffensperger, who previously dismissed Trump’s request to ‘find’ nearly 12,000 votes to overturn Trump’s 2020 election loss in Georgia. Raffensperger chimed in with the critics saying the board’s attempts to modify the result certification requirements in the final few months before the election ‘are a mess’.
Even the Republican National Committee and Georgia Republican Party have within their ranks different opinions. In a brief to the court at the beginning of the trial, they argued that Democrats are trying to cause chaos and confusion in the election process, ironically, which is precisely the same concern the Democrats claim to have over the new state election board regulations. They assert that blocking these rules would bring ‘judicially created confusion’ and it should be policymakers who make decisions about the election, not judges.