Georgia Judge Says State Election Certification Rule ‘Vague’

Voters cast ballots in Georgia's primary election at a polling location in Atlanta, Ga., on May 21, 2024. Elijah Nouvelage/Getty Images

A Georgia judge seemed skeptical during an Oct. 1 court proceeding of policies passed by the state’s election board.

Fulton County Superior Court Judge Robert McBurney called one of the challenged rules “vague” and in need of clarification. He said that many of the policies coming out of the state’s election board were inconsistent with a Supreme Court ruling on rules passed before an election.

One of the rules at issue in the Oct. 1 bench trial, held before the judge and without a jury, defines certification as requiring county officials to conduct a “reasonable inquiry” before certifying results, but it does not specify what that means.

Another rule includes language allowing county election officials “to examine all election-related documentation created during the conduct of elections.”

Supporters of the rules say they are necessary to ensure the accuracy of the vote totals before county election officials sign off on them.

However, critics worry that supporters of Republican presidential nominee former President Donald Trump could use the rules to delay or deny certification if the former president loses the state to Democratic Vice President Kamala Harris, causing confusion and casting doubt on the results.

Need for Clarity

On the “reasonable inquiry” rule, McBurney told Ben Thorpe, attorney for the Democratic National Committee, “That one, to me, on its face, is vague and needs clarification.”

McBurney seemed amenable to the examination rule, which he said appeared to be a “permissive rule.”

“I struggle to see how that presents uncertainty to anyone, because it permits access but doesn’t obligate anyone to do anything,” he said.

Thorpe took issue with a portion of the rule that requires election workers to meet and conduct a review of precinct returns hours before all of the returns are complete. That creates a “direct and actual concrete problem” for the workers, Thorpe said.

The trial was prompted by Democrats’ request for judgments invalidating two policies passed by the election board. On Sept. 30, the Democratic Party also filed a lawsuit challenging another election board policy requiring ballots to be counted by hand.

McBurney started the trial by asking the attorneys present whether they agreed that election certification was mandatory under the new rules.

They did, leaving McBurney to focus, in part, on how county officials might interpret the rules laid out by the election board.

Thorpe told McBurney that to the extent the judge didn’t invalidate the rules in question, he should clarify that election workers must certify by the appointed deadline despite uncertainties. McBurney seemed to agree, suggesting a reasonable inquiry into the results without forgoing certification.

Attorneys for the election board and the Republican National Committee maintained that the new rule allowed election workers to stay within the confines of the law.

Elizabeth Young, an attorney for the election board, said that a ruling from the judge was unnecessary. She said if McBurney did anything further than suggesting election workers follow the law, he might be getting into the territory of issuing an “advisory” opinion, which he said he wanted to stay away from.

Bad faith on the part of an election worker, she suggested, wasn’t a valid reason for issuing an advisory opinion since it indicated that the workers wouldn’t be willing to follow their legal obligations.

“Let’s say you got a majority [of an election board] and they did not fulfill their legal duty, that sounds to me in that particular hypothetical like a very strong case for mandamus,” she said.

Mandamus refers to a court ordering someone to fulfill their legal obligations.

The Associated Press contributed to this report.