Election boards in Georgia must certify the state’s election results, judge says

Mark Niesse

“A Fulton County judge appeared unlikely to toss out a new rule by the State Election Board requiring county officials to investigate election results, but he said they must certify them.

In two preelection trials Tuesday, Fulton County Superior Court Judge Robert McBurney said state law requires county election boards to certify results one week after Election Day.

Republicans who raised the question agreed that certification is mandatory — but with an important caveat. They said individual board members had the right to vote “no” and a majority of members could decide to exclude precincts from certification if they suspected fraud or irregularities.

McBurney didn’t immediately issue rulings after the Republican-controlled State Election Board recently approved a rule calling for an undefined “reasonable inquiry” before certification on Nov. 12.

Democrats who sued said the rule created an opening for rogue election board members to reject the results. They warned the rule could lead to disputes over the vote count.

“The deadline is the deadline. Get done what you can. What is reasonable to one person might be not reasonable to another. But you make your inquiry and then it’s wheels up at 5 p.m. on the 12th of November,” McBurney said.

Credit: Miguel Martinez-Jimenez

Ben Thorpe, a lawyer representing the Georgia Democratic Party and the Democratic National Committee, argued the “reasonable inquiry rule" the State Election Board recently approved offers "no direction.” Arguing in Fulton County Superior Court on Tuesday, Thorpe said: "It’s then left to the determinations of individual actors. ... That may support a decision to delay or otherwise vote against, individually or as a board, certification.” (Miguel Martinez/AJC)

For decades, the certification of elections by local boards was an obscure process followed mostly by politically engaged partisans and citizens. But it’s become a controversial matter in the wake of Donald Trump’s false allegations that voting fraud in 2020 cost him reelection as president.

Across the country, some local board members, mostly Republicans, have voted against certifying results. A recent Atlanta Journal-Constitution investigation found at least 19 Georgia board members have voted not to certify election results since 2020.

On Tuesday, the responsibilities of local election board members were front and center in two lawsuits heard by McBurney.

In the first case, Democrats sued to overturn two State Election Board rules — one requiring local boards to conduct a “reasonable inquiry” into the accuracy of results before certifying and another granting them access to all election documents as they conduct their inquiry.

While McBurney indicated he’s unlikely to throw out the “reasonable inquiry” requirement, he could issue an order clarifying the extent of the rules and their relationship to existing state laws.

The rule doesn’t provide any details about what’s reasonable or what the inquiry would involve.

An attorney for the Republican Party, Baxter Drennon, said the State Election Board’s rule should withstand court scrutiny.

“There’s not a bona fide dispute here,” Drennon said. “The rules are consistent with the law, and frankly if someone has a concern about what their obligation is under the rules, they should look to the law because the same obligations exist in the law.”

Certifying elections is a critical step when county election boards approve results to the best of their knowledge. Only after certification can candidates contest the outcome in court.

If the majority of a county election board voted against certifying this fall’s election — in violation of state law — the courts could get involved at that point to order certification, McBurney said.

Credit: Miguel Martinez-Jimenez

Fulton County Superior Court Judge Robert McBurney didn’t immediately issue rulings Tuesday after the Republican-controlled State Election Board recently approved a rule calling for an undefined “reasonable inquiry” before certification on Nov. 12. But he did say local election boards are required to certify elections. “The deadline is the deadline," he said. "Get done what you can. What is reasonable to one person might be not reasonable to another. But you make your inquiry and then it’s wheels up at 5 p.m. on the 12th of November.” (Miguel Martinez/AJC)

Attorneys for the Democrats told McBurney the rule goes “wildly beyond” state laws that determine when a vote has been legally cast.

“The reasonable inquiry rule provides all kinds of flexibility but no direction,” said Ben Thorpe, an attorney for the plaintiffs. “It’s then left to the determinations of individual actors. ... That may support a decision to delay or otherwise vote against, individually or as a board, certification.”

McBurney said he was less concerned about the rule allowing local board members to examine all election-related documentation. He said it didn’t require county election board members to take additional steps before certification.

In the second lawsuit, Fulton County election board member Julie Adams asked McBurney to rule that local board members’ duties are discretionary, not ministerial. Adams voted against certifying this year’s presidential primary and then sued the county.

Adams’ attorney, Richard Lawson, cited the oath that board members take, which requires them to prevent “fraud, deceit and abuse” to the best of their abilities.

And while Lawson agreed that certification is mandatory, he argued board members could agree not to certify certain precincts if they deemed the results problematic.

Daniel Volchok, an attorney for the Democratic National Committee, called the Republican argument “a recipe for chaos” that could deny Georgians the right to have their votes counted. He said state law requires disputes about fraud and other irregularities to be decided in the courts — not by unelected election board members.

Democrats fear a repeat of the 2020 election, when Trump alleged the election was stolen and unsuccessfully fought the outcome in court. Investigations debunked allegations of drop box ballot stuffing, counterfeit ballots and ineligible voters. Three counts showed Joe Biden won the presidential contest in Georgia by about 12,000 votes.

The plaintiffs in the lawsuit against the State Election Board include the Democratic National Committee, the Georgia Democratic Party and Democrats on county election boards. Vice President Kamala Harris’ campaign supported the lawsuit.

McBurney could issue a ruling in the coming days.“