Georgia’s new election rules scrutinized by courts as voting begins

by Ella Lee - 10/22/24 6:00 AM ET

Georgia judges are picking apart controversial new election rules in the state as its early-voting turnout breaks records.

The rules, imposed by Georgia’s Republican-led State Election Board, stood to upend election procedures in the weeks before Election Day.

They drew heavy criticism across the spectrum, from poll workers to Georgia’s Republican secretary of state, who warned that chaos would be unleashed with the eleventh-hour changes. But proponents said the rules served to better safeguard November’s contests in the first major election since 2020, which saw unbridled and unfounded claims of widespread fraud.

“We have two judges who have affirmatively shut down … the State Election Board, either claiming that they’re either acting hastily and arbitrarily or that they are just fundamentally acting outside of their statutory powers,” said Anthony Michael Kreis, a constitutional law professor at Georgia State University. “I think that’s a big deal, because it’s not every day that you get major rulings from Fulton Superior Court judges — and you get two of them who are both on the same page.”

But that battle is not over yet, as the State Election Board and its allies in the GOP shift their gazes toward higher courts.

With more than 1 million ballots already cast in the critical battleground state, the state’s highest court stands poised to weigh in.

“That’s the big question,” Kreis added. “What happens on appeal?”

Georgia’s State Election Board — an unelected panel of three Republicans, one Democrat and a nonpartisan chair — came under legal fire after passing a slew of rules in August and September, raising concern over attempts to slow down the certification process in favor of GOP candidates.

Two rules allowed election workers to undertake a “reasonable inquiry” before certifying and let election officials examine “all election related documentation created during the conduct of elections.” A different rule required the completion of a hand-count verification on election night. And several other rules addressed poll-watching, public reporting and other measures.

The changes came in fast succession across August and September, with former President Trump, the GOP presidential candidate, describing the panel’s three Republicans as “pit bulls fighting for transparency, honesty and victory.”

Legal challenges from national and state Democrats quickly followed, and county election boards also jumped in, saying the state panel overstepped the bounds of its power. So far, judges have agreed.

On Oct. 14, Fulton County Superior Judge Robert McBurney ruled that county election officials may not delay or decline to certify election results on the basis of suspicion of fraud. The decision rejected a challenge from a Fulton County election board member who refused to certify during the state’s spring primary.

The next day, McBurney also temporarily blocked the State Election Board’s hand-count rule from going into effect before Election Day, asserting that the panel did “too much, too late” and that the public is “not disserved by pressing pause.” The judge has yet to rule on several of the other changes.

Perhaps coincidentally, early voting also began in Georgia on the day of McBurney’s second ruling.

A day after that, Fulton County Superior Judge Thomas Cox found that the board does not have the authority to put seven rules — including the “reasonable inquiry” and hand-count rules — into effect, deeming them “illegal, unconstitutional and void.”

The Republican National Committee (RNC) appealed Cox’s ruling last week directly to the Georgia Supreme Court, bypassing the state’s intermediate court and establishing the next front in the legal fight over the state’s election processes.

In a statement announcing the appeal, RNC Chair Michael Whatley called Cox’s ruling “the very worst of judicial activism” and accused the judge of “siding with the Democrats” to attack the integrity of elections.

The state’s highest court agreed Friday to hear the appeal, given the “issues of gravity and public importance” it presents. A date for arguments has not yet been set, but a hearing before Election Day could suggest that election officials who warned against last-minute implementation of the rules are not yet in the clear.

However, Kreis, the constitutional law professor, said the widespread concern over eleventh-hour changes might lead the court to push off the matter until after November’s contests.

“Of course, the courts can just stay all this and say, ‘We can spell this out later. We shouldn’t be sowing chaos into the process now,’” he said. “We’re just really in unchartered territory, because there’s just so much confusion about what the powers of the board are and why they are doing this.”

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Georgia is one of seven crucial states that could sway the outcome of the presidential election between Trump and Vice President Harris, raising the stakes of the preelection litigation that stands to fundamentally alter how the state’s elections are run.

As the legal battle rages on, there are just two weeks until Election Day.

“We are in a very dark quagmire, where nobody knows what’s going on, but everything seems to be sinking fast,” Kreis said. “That’s the problem; there are many different scenarios and situations in law … where we are in areas of unchartered territory. But usually, you’re not sinking quickly toward the deadline while you’re trying to sort those things out.”