Judge signals he may rule Georgia counties must certify election results on time

This story was updated to add new information.

An Atlanta-based judge overseeing two cases dealing with whether Georgia county election boards must certify election results by the state's November deadline signaled Tuesday that he is likely to rule that certification is mandatory, even if board members can investigate issues before the deadline.

The court proceedings took place amidst growing, bipartisan concern about new rules from the Georgia State Election Board that increase local officials' powers and responsibilities before the mid-November county certification deadline. Critics fear the rules could delay election results and be used to cast doubt on the election's integrity.

Judge Robert C. I. McBurney said Tuesday that he thought it "would be a problematic ruling" if he were to say a board member's "discretion encompasses the ability of a board member to decline to certify some or all of the votes."

"You could very easily have an outcome where there's no certification. How is that consistent with the law?" McBurney asked.

McBurney made the comments during afternoon trial proceedings in the case of Julie Adams, a Republican on Atlanta's Fulton County Election Board who refused to certify results in the May primary election – a growing phenomenon across the country since the 2020 presidential election.

Adams sued Fulton County in order to get what's called a "declaratory judgment" making clear that she has discretion in exercising her board member duties, and that she has the right to information she says she needs to perform her duties.

Earlier Tuesday, McBurney held trial proceedings in a case brought by the Democratic National Committee and Democratic Party of Georgia against the Georgia State Election Board. They want the judge to declare that, regardless of the two new rules, county election boards must certify the upcoming election's results by the November deadline.

"According to their drafters, these rules rest on the assumption that certification of election results by a county board is discretionary and subject to free-ranging inquiry that may delay certification or render it wholly optional," Democrats said in their brief ahead of the trial.

McBurney allowed the Georgia Republican Party and the Republican National Committee to jump into the Democrats' case to fight against their position, just as he allowed the Democratic groups to jump into Adams' case to fight her position. He held bench trial proceedings Tuesday, in which a judge decides the full case without a jury.

Democrats and Republicans agree – on the surface

The state board, the Republican groups, and the Democratic groups all agreed at the outset of Tuesday's proceedings that county election boards are legally required to certify results by 5 p.m. EDT on Nov. 12 – a week after Election Day. A Georgia statute explicitly states that election returns "shall ... be certified" by the county superintendent no later than 5 p.m. the Monday after Election Day, which would fall on Veterans Day – Nov. 11 – this year.

However, they maintained their disagreement over whether Judge McBurney could officially say so ahead of the upcoming presidential contest.

Arguing on behalf of Democrats, lawyer Kurt G. Kastorf said his clients are concerned that, without a court ruling to the contrary, county officials who don't believe they can properly determine a particular vote should count might conclude under the new rules that they should exclude the vote from the certification total or should refuse to vote for certification.

"All of these are possibilities that a county official could take that would prevent a voter from having their votes legally cast," Kastorf said.

Speaking for the Georgia Republican Party, lawyer Baxter D. Drennon said it wasn't appropriate for the judge to make a ruling based on hypotheticals that haven't come to pass.

"All these things are mere possibilities or potential things that could occur, but none of them are actual, immediate legal consequences under the rule, and I don't think this Court can issue an opinion based on that," Drennon said.

Judge suggests a certification comment box

Later in the day, Richard Lawson, a lawyer for Adams, also said certification by mid-November is mandatory, although he wasn't sure if Nov. 11 – Veterans Day – or Nov. 12 would be the precise date.

However, some of Lawson's ensuing comments indicated he didn't believe the law required Adams to vote 'yes' on certification. He noted that, as a board member, Adams takes an oath to "prevent any fraud" and to "make a true and perfect return of ... primaries and elections."

"I do think that a 'no' vote just has to be permitted," Lawson said.

Judge McBurney said "there's clearly some tension" between the oath to make a "perfect return" and the statute requiring certification, at least when a board member is questioning the legitimacy of the results.

"To me, it's resolvable by having a certification that has a comment box for each of the certifiers. 'I know I'm certifying, but I've got concerns about precinct 17,'" McBurney said. "Now it's on notice, and there can be an election contest about that, a district attorney can jump into action, who knows?"

What do the new rules do?

One of the two rules at issue requires election officials to conduct a "reasonable inquiry" into the accuracy of the election results before certifying them, without defining what a "reasonable inquiry" is. The other allows individual county election board members to examine documentation that was created as the election was being conducted.

The rules were passed by three members of the state election board after former President Donald Trump praised them each by name at an Aug. 3 Atlanta campaign rally, calling them “pit bulls fighting for honesty, transparency, and victory.” The two remaining members – a Democrat and the nonpartisan board chair who was appointed by Republican Governor Brian Kemp – objected but were outvoted.

The two rules are part of a series of last-minute changes to the November election by the same three board members. Those changes have sparked bipartisan concern, with many worrying the changes could delay election results and be used to cast doubt on the election's integrity.

Georgia Republican Secretary of State Brad Raffensperger, who famously refused Trump's request to "find" nearly 12,000 votes to overturn Trump's 2020 election loss in Georgia, previously told USA TODAY that the board's efforts to change result certification requirements in the final few months before the election "are a mess."

Democrats sued on Monday to block a separate rule that Georgia Republican Attorney General Chris Carr advised the board was probably unlawful. That Sept. 20 rule requires thousands of Georgia voting precincts to hand-count ballots and match the totals to figures produced by machines.

What is the election board arguing?

In its brief to McBurney, the election board appeared to agree with Democrats that county election results certification is a mandatory duty.

"Petitioners ask this Court to declare what is already enshrined in Georgia law: the fact that certification is a mandatory act that must occur at the county level by a certain date," the election board said.

Yet despite agreeing with Democrats on that point, the board is fighting Democrats' legal effort to get a judge to make that clear. It says the lawsuit should be dismissed because it's premature – a court declaration wouldn't be appropriate where the controversy "is based on possible or probable future contingencies," according to the brief.

The board is also arguing that it is shielded from the lawsuit by the doctrine of sovereign immunity, which protects the government from being sued without its consent.

What does the Georgia GOP say?

The Republican National Committee and the Georgia Republican Party won permission from Judge McBurney to jump into the case and weigh in separately.

In their brief to the court ahead of the trial, they tried to turn Democrats' concern about injecting chaos into the election process onto its head by saying the lawsuit is the real threat.

Blocking the rules "in the final weeks before voting starts would inject judicially created confusion," they said. "It is policymakers—not judges—who should make 'policy choices on the ground before and during an election.'"

Adams to get leeway on pre-certification investigating?

Judge McBurney appeared more favorably disposed to Adams' request for a court declaration that county board members can access election materials, especially given the new rule allowing for that access. He compared the issue to deciding how best to cut down a tree.

"In the end you must certify. In the end, you must cut down that tree," McBurney said.

"You have full discretion as to how you cut that tree down, in the same way that you can certify by looking at lots of records or a few records, interrogating poll workers, not interrogating poll workers, looking at everything to your heart's content – within the narrow window of time that you have," he said.

This article originally appeared on USA TODAY: Judge signals he may rule that Georgia counties must certify election