Georgia activists spent the summer filing lawsuits and — with the help of a State Election Board aligned with their priorities — passing rules to reshape the state’s election processes. A local court has now halted a key part of those efforts.
On Wednesday, Fulton County Judge Thomas Cox Jr. ruled seven recently passed state election rules were “illegal, unconstitutional and void.”
Chief among them was a follow-up decision on a hand-count rule that had some local election officials worried about having adequate manpower come Election Day.
Judge Robert McBurney issued an injunction against the rule on Tuesday, emphasizing the “11th-and-one-half hour” implementation of the rule. Georgia Secretary of State Brad Raffensperger previously said his office would not have time to issue guidance or logistical support to help county election officials with the rule, which McBurney feared would cause further havoc.
“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,” McBurney wrote in the injunction.
Cox echoed and expanded McBurney’s ruling, saying Georgia’s election code details election workers’ responsibilities after polls close. “Hand counting is not among them,” Cox wrote in his ruling.
As NOTUS recently reported, there was a fair amount of consternation over the hand-count rules. They would, depending on who was asked, cause issues of manpower, security and irritation — if not all of the above.
For some on the ground, it was the straw that broke the election’s back. Unwilling to deal with the rule’s added anxiety, heaped on top of the typical tension of Election Day, some poll workers and managers had already quit over the rule. Others threatened to follow suit.
Multiple county election officials recently told NOTUS they were waiting for the outcome of the lawsuits before finalizing their plans for the November election.
One, Bartow County’s Joseph Kirk, predicted the decision last week. “At this moment, I don’t think these are going to survive judicial scrutiny,” he said. “It’s as simple as how much constitutional authority the SEB has in this process.”
Apparently not enough — in the judges’ eyes, at least.
“Clearly the SEB believes that the Hand Count Rule is smart election policy — and it may be right,” McBurney wrote. “But the timing of its passage make implementation now quite wrong.”
Or, as Cox emphasized, the rules were “unenforceable,” “void” and “not to be followed.”
Cox also ordered injunctions against the other rules. They included the vague “reasonable inquiry” rule, party poll watchers in tabulation areas, establishing a daily reporting system of early and absentee voters and publicly posting vote count reconciliation reports.
Challenges to the ruling could still happen. Cobb County GOP Chair Salleigh Grubbs, who supported the new rules, told NOTUS on Tuesday that an appeal would depend on the judge’s ruling. She did not respond to requests for comment on Wednesday prior to publication.
The contested rules were a chunk of those passed by the State Election Board earlier this summer, after the appointment of Janelle King gave the board an election-denying majority. Their invalidation comes as Georgia has experienced record-shattering participation in early voting, which opened Tuesday. Almost 600,000 ballots had been received as of Wednesday night.
In what proved to be the appetizer for the entree, McBurney issued a mixed ruling on Tuesday against county board of elections member Julie Adams. The ruling declared two things: Election supervisors and board members must certify election results prior to the certification deadline, and they must be granted access to requested election materials.
The decision rubbed up against, but did not mention, the “reasonable inquiry” state election rule that Cox later struck down. By mandating certified results by the certification deadline, it effectively limited the impact of inquiry on election certification.
Adams had claimed that Fulton prevented her from fulfilling her duty as a member of the board of election. She sued after refusing to certify the county’s election results after the primary in May.
McBurney’s explanation emphasized that, while an election supervisor can choose how to handle an election, they can’t decide when to not certify one.
The ruling stated that there are “some things an election superintendent must do, either in a certain way or by a certain time, with no discretion to do otherwise. Certification is one of those things,” McBurney wrote.
“There are no exceptions,” he added.
To further dissuade maverick election officials, the judge laid out the potential consequences for defying the certification mandate: suspension, civil litigation or misdemeanor prosecution.
Ultimately, the judges’ rulings were Tolkien-esque, who McBurney cited Tuesday, declaring to the State Election Board, “You shall not pass!”
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Ben T.N. Mause is a NOTUS reporter and an Allbritton Journalism Institute fellow.