New rules regarding election certification in Georgia to get test in court

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A day before a trial is set to begin on a challenge to two new controversial rules concerning the certification of vote tallies in Georgia, Democrats on Monday said they filed a lawsuit targeting another new rule that requires the number of paper ballots to be counted by hand at polling places after the close of voting.

The Republicans who hold a majority on the State Election Board — praised by name by former President Donald Trump at a recent rally — have recently voted to pass a number of new rules governing the administration of elections. Democrats and other critics — including Georgia’s top elections official — have said it’s too close to the general election to pass new rules and worry they could cause confusion or undermine public confidence in the results.

A trial is set to begin Tuesday before Fulton County Superior Court Judge Robert McBurney on a legal challenge that Democrats filed arguing that the two new certification rules could be used “to upend the statutorily required process for certifying election results in Georgia.” It’s a bench trial, meaning there’s no jury.

One of the rules at issue in Tuesday’s trial provides a definition of certification that includes requiring county officials to conduct a “reasonable inquiry” before certifying results, but it does not specify what that means. The other includes language allowing county election officials “to examine all election related documentation created during the conduct of elections.”

A series of recent appointments gave Trump-endorsed Republicans a 3-2 majority on the board in May. That majority has passed several new rules over the past two months that Democrats and others worry could be used by Trump and his allies to cause confusion and cast doubt on the results if he loses the crucial swing state to Democratic Vice President Kamala Harris in November’s presidential election.

The lawsuit that Democrats said they filed Monday challenges a rule that requires three workers at each polling place to count the number of paper ballots — not votes — by hand on election night after voting ends. The lawsuit, brought by the state and national Democratic parties and four county election officials, argues that the rule “is very likely unlawful,” saying that it improperly adds a new requirement to the state election code.

It notes that before the new ballot-counting rule was passed on Sept. 20, the attorney general’s office and the secretary of state’s office both wrote to the State Election Board advising against passing this rule or any others so close to the general election.

Election board member Janice Johnston said a few days after the ballot-counting rule was adopted that there appeared to be “an irrational and widespread panic” over the rule. She rejected assertions that that rule and others might be the basis to not certify the election, and said they are meant to “ensure chain of custody on election night so that there are no missing ballots.”

A separate lawsuit filed by a group led by a former Republican lawmaker initially challenged the two certification rules and was amended last week to also challenge the ballot-counting rule and some others that the board passed. That challenge has been assigned to a different judge.

The challenge to the certification rules filed by Democratic groups and others asks the judge to confirm that election superintendents — a multi-person election board in most counties — have a duty to certify an election by the deadline provided in the law and have no discretion to withhold or delay certification. They ask that the judge declare the new rules invalid if he believes they allow such discretion.

The state attorney general’s office, representing the State Election Board, argues that the Democrats are asking the judge to “declare what is already enshrined in Georgia law,” that county certification is mandatory and must occur by 5 p.m. the Monday after the election, or the next day if Monday is a holiday, as it is this year. They also argue the challenge is barred by the principle of sovereign immunity and seeks relief that isn’t appropriate under the law.

The challenge was filed by the state and national Democratic parties, as well as county election board members from counties in metro Atlanta, most chosen by the local Democratic Party, and voters who support Democrats and two Democratic state lawmakers running for reelection. It was filed against the State Election Board, and Republican parties — both state and national — joined the fight on the board’s side.

The Democrats concede in their challenge that the two rules “could be read not to conflict with Georgia statutes” but they argue “that is not what the drafters of those rules intended.”

“According to their drafters, these rules rest on the assumption that certification of election results by a county board is discretionary and subject to free-ranging inquiry that may delay certification or render it wholly optional,” they wrote in a court filing.

They also note that numerous county election officials around the state have already sought to block or delay certification in recent elections and “the new rules hand those officials new tools to do so again in November.”

State lawyers argue that since the argument against the rules is based on the alleged intent of the people who presented them or the way some officials could interpret them, rather than on the text of the rules themselves, the challenge should be thrown out.

State lawyers also argue the Democrats’ attempt to have the judge issue a declaratory judgment is prohibited under sovereign immunity, which protects state and local governments from being sued unless they agree to it. The Democrats’ lawyers argue this challenge falls under a carve-out provided in state law saying the state has “specifically consented to be sued and has explicitly waived its sovereign immunity as to declaratory judgment actions in which the rules of its agencies are challenged.”

Lawyers for both sides also invoke a 2006 U.S. Supreme Court ruling that courts should not change election rules right before an election.

Lawyers for the Republican groups say prohibiting the enforcement of the new rules “in the final weeks before voting starts would inject judicially created confusion,” which the Supreme Court ruling meant to protect against.

Lawyers for the Democrats say the ruling applies to federal courts, not state courts, to keep federal courts from intruding in a matter having to do with state laws. Even if it did apply in this case, they contend, it would support their arguments because it argues against long-standing election rules being changed close to an election.