(Georgia Recorder) — Georgia Democrats urged a Fulton County judge Tuesday to throw out changes made by the Republican-controlled State Election Board ahead of next month’s presidential election.
There are two new rules at the center of the case, the first requires county elections boards to conduct a “reasonable inquiry” into election results before certifying them, and the second allows county board members to examine election-related documents before certification.
The rules were passed by three Republican-appointed members, all of whom were thanked by name by former President Donald Trump at an Atlanta rally in August. Trump called members Janice Johnston, Rick Jeffares, and Janelle King “pit bulls fighting for honesty, transparency, and victory” but said the other two members of the board “aren’t so good.”
Trump’s refusal to accept his loss in Georgia in 2020 and his efforts to overturn that loss have some Democrats worried the election board could set the groundwork for an attempt to nullify a potential loss in 2024.
Lawyers representing the state and national Democratic Parties sought to convince Superior Court Judge Robert McBurney that the rules are too vague and could add chaos to the counting process in what is expected to be a close race between Trump and Vice President Kamala Harris. Democrats want McBurney to override the rules or to clarify that they do not allow election board members to delay certification past the Nov. 12 deadline.
“The uncertainty that the challenged rules inject in the certification process creates a risk that the county board of elections might not certify their votes, might not certify at all, or might not certify in time,” said attorney Kurt Kastorf.
Lawyers representing Democrats also argued that a lack of definition for a reasonable inquiry means local election boards would not know when they had finished doing one. And such an inquiry could be very different in a small county or a large one.
“The reasonable inquiry rule provides all kinds of flexibility but no direction,” said attorney Ben Thorpe. “There is no definition in the rule that helps superintendents understand when reasonable inquiry has been satisfied, and so it is then left to the determinations of individual actors.”
McBurney questioned whether the correct understanding of the rule is that a reasonable inquiry means doing as much as you can within the timeframe.
“You could add a note saying, ‘I wish I had more time,’ and then the Legislature could change it, but the deadline is the deadline; get done what you can, and what is reasonable to one person might not be reasonable to another, but you’re making your inquiry, and then it’s wheels up at 5 p.m. on the 12th of November,” he said.
Attorneys for the state election board agreed with that characterization of the rule and said the court should defer to the expertise of state and county election board members.
“Nobody is arguing that these rules were meant to be or can be read to suggest to anybody that their certification duty under the law has been called into question,” said Elizabeth Young, an attorney with the Georgia Attorney General’s office, which is charged with representing state agencies. “And it’s a fundamental principle in declaratory judgment types of cases like this that we’re going to assume public officials are going to fulfill their duties in good faith, and I will say, from the people that I’ve met, that worked in elections that do a thankless and difficult job, that presumption is very valid in this case.”
McBurney also pushed back against that idea.
“I happen to live in a county where a member of a board didn’t certify, so I’m just wondering when we need to set aside that presumption,” he said.
Young said the rules would allow flexibility within the current law, but ultimately, county boards must meet their deadlines or be forced by a court order to do their jobs.
“There are all kinds of things that can and do happen in an election world that might cause a superintendent to have a question. You know, ‘I heard lightning struck this precinct and the machines went down. I don’t know that everything was correct. I’d like to ask some questions to the precinct leader over there.’”
“Those are the types of questions that should be able to be resolved within the time period,” she added. “But if there isn’t, there is a provision … where, as you’re coming up to that deadline, you do your best, and you certify, and you turn whatever issue is that is not quite resolved over to the district attorney.”
Following the hearing, McBurney presided over a separate election-related case involving a member of the Fulton County Board of Elections. The question, in that case, is whether board members’ certification duties are discretionary – meaning they have the responsibility to vote against certification if they believe there are mistakes or fraud – or ministerial, meaning their duty is to certify the results and let any problems be ironed out by the proper authorities.
Speaking after that case, McBurney said he has cleared his plate of other obligations and plans to rule swiftly on both matters given the closeness of Election Day.
