A judge has blocked a new rule that requires Georgia Election Day ballots to be counted by hand after the close of voting. The ruling came a day after the same judge ruled that county election officials must certify election results by the deadline set in law.
The State Election Board last month passed the rule requiring that three poll workers each count the paper ballots — not votes — by hand after the polls close.
The county election board in Cobb County, in Atlanta’s suburbs, had filed a lawsuit seeking to have a judge declare that rule and five others recently passed by the state board invalid, saying they exceed the state board’s authority, weren’t adopted in compliance with the law and are unreasonable.
In a ruling late Tuesday, Fulton County Superior Court Judge Robert McBurney wrote, that the so-called hand count rule “is too much, too late” and blocked its enforcement while he considers the merits of the case.
McBurney on Monday had ruled in a separate case 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.
The two rulings came as early in-person voting began Tuesday in Georgia.
They are victories for Democrats, liberal voting rights groups and some legal experts who have raised concerns that Donald 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.
In blocking the hand count rule, McBurney noted that there are no guidelines or training tools for its implementation and that the secretary of state had said the rule was passed too late for his office to provide meaningful training or support. The judge also wrote that no allowances have been made in county election budgets to provide for additional personnel or expenses associated with the rule.
“The administrative chaos that will — not may — ensue is entirely inconsistent with the obligations of our boards of elections (and the SEB) to ensure that our elections are fair legal, and orderly,” he wrote.
The state board may be right that the rule is smart policy, McBurney wrote, but the timing of its passage makes implementing it now “quite wrong.” He invoked the memory of the riot at the U.S. Capitol by people seeking to stop the certification of Democrat Joe Biden's presidential victory on Jan. 6, 2021, writing, “Anything that adds uncertainty and disorder to the electoral process disserves the public.”
During a hearing earlier Tuesday, Robert Thomas, a lawyer for the State Election Board, 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.
State and national Democratic groups that had joined the suit on the side of the Cobb election board, along with the Harris campaign, celebrated McBurney's ruling in a joint statement: “From the beginning, this rule was an effort to delay election results to sow doubt in the outcome, and our democracy is stronger thanks to this decision to block it.”
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 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.
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.”
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.”
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.
