Georgia judge signals openness to keeping controversial new election rules

A judge in Georgia is signaling that he’s inclined to keep two new rules created by the state’s election board that drew outrage from Democrats.

Lawyers for the Democratic and Republican parties agreed during a bench trial Tuesday that Georgia’s presidential election results must be certified by the state’s statutory deadline, despite recent rule changes that created new questions about the process.  

The trial came as part of a lawsuit over the two new rules created by Georgia’s State Election Board, which would allow for a “reasonable inquiry” to be conducted before election certification and gives election workers the ability to “to examine all election related documentation created during the conduct of elections.” 

Judge Robert McBurney opened the hearing with pointed questions about the certification process, asking both parties if they disagreed that certification of the Nov. 5 election was mandatory, which neither disputed. McBurney also asked if either party disagreed that the certification had to occur by 5 p.m. on Nov. 12; they did not. 

The judge seemed disinclined from the start to eliminate the board’s new rules, instead repeatedly insisting that county officials have no choice but to certify the results of the election. He did not immediately rule on the matter. 

“I want to understand what the uncertainty is that is properly addressable by a declaratory judgment, as opposed to advisory opinion or reassurance from a judge that, ‘Don’t worry, your vote will count’ — which is an important feeling to have, but not what a judge is supposed to do,” McBurney said.  

Ben Thorpe, a lawyer for the plaintiffs, argued that the new rules inject uncertainty into the rapidly nearing presidential election — and in some circumstances, that confusion could serve as the basis to delay or otherwise vote against certification.  

“The reasonable inquiry rule provides all kinds of flexibility, but no direction,” Thorpe said. “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.” 

The national and Georgia Democratic parties, plus four county election officials, brought the lawsuit last month, contending that “chaos” would ensue if the series of last-minute rule changes were allowed to stand. Vice President Harris’s presidential campaign backed the suit. 

The plaintiffs allege that, through rulemaking, Georgia’s State Election Board sought to transform the “straightforward and mandatory” certification process into a “broad license” for individual board members to seek out purported election discrepancies, potentially delaying certification.  

Counsel for the board and the Republican National Committee, which intervened in the case, pushed back against those arguments.  

“With regard to both of these rules, 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,” Elizabeth Young, who represented the election board and works in the Georgia attorney general’s office, said.  

“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.” 

At least 19 county election board members in Georgia have refused to certify election results since 2020, according to The Atlanta Journal-Constitution.  

Pressed by McBurney on recent instances where election boards attempted not to certify results, Young argued that if someone chose not to certify election results, that individual was going to behave that way whether or not the rule was in place. 

Young also argued that the rule of conducting a “reasonable inquiry” was a “conscious and clear decision that canvassing, computation, tabulation all have the appearance of being accurate and correct and then certify within the deadline.”  

“Everything else that we’re hearing here assumes malevolent [intent] and to the extent that that happens, and I certainly hope that it won’t, the remedy for that is not to strike this rule because a malevolent actor is going to act malevolently with or without this rule,” she added. 

Baxter Drennon, an attorney representing the Republican National Committee (RNC), defended the recent rule changes by asserting that “we’re not changing the law,” instead “reinforcing or reemphasizing” it.  

The lawsuit is one of several Democrats have filed pertaining to new rules passed by the Georgia State Election Board. Democrats, with the support of the Harris-Walz campaign, also filed a lawsuit over another rule mandating hand-counting ballots. 

Georgia represents one of seven critical battleground states that will determine who wins the presidency this fall. Former President Trump won the state in 2016 but narrowly lost it to President Biden in 2020. 

An aggregate of Georgia surveys compiled by Decision Desk HQ shows Trump and Harris tied at 48 percent support each. 

McBurney could issue a ruling at any time.