A ‘Recipe for Chaos’ in Georgia: Judge Weighs DNC’s Push To Stop New Election Rules

A Georgia judge overseeing Democrats’ challenges to new election rules created by the state’s Republican-majority election board seemed less than enthused about the idea of tossing out those rules on Tuesday, even as Democratic lawyers argue they could cause chaos in November.

The rules, implemented in August, gave county election officials in Georgia permission to launch vaguely-defined “reasonable” inquiries into contested election results and authority to broadly examine “all election related documentation created during the conduct of elections.” The Democratic National Committee, the Georgia Democratic Party and some individual voters sued the state election board and state Republicans over rules when the board voted 3-2 approving the new policies.

At Tuesday’s hearing in Fulton County, Judge Robert McBurney sought to establish some baseline facts at the top of the trial ― facts that may prove useful for the DNC’s lawyers to cite down the road.

The judge asked attorneys for both parties whether they could agree on three simple points about election law in Georgia from the outset: that certifying the election is mandatory; that certifying the election by the Nov. 12 deadline is also mandatory; and finally, that the state elections board lacks the authority to change rules around certification, including any move to remove certification requirements or move deadlines.

In a rare moment in any courtroom trial, every party initially agreed.

That consensus was strained, however, as the hearing went on.

Lawyer Kurt Kastorf, representing the Democratic voters who’d sued alongside the DNC, said the finality of the certification deadline was clear but exactly what the GOP rules now allow election officials to do was less clear.

For instance, he said, under the new rules, a Georgia election official could believe they “need to investigate irregularities” in the vote totals or should take it upon themselves to reinterpret what the law says about certification.

This could be a “recipe for chaos,” Kastorf said, and “for denying Georgians their right to vote,” should local officials decide to exclude ballots from the vote count for reasons they independently determine.

Kastorf said the plaintiffs feared that an election official could decide against certifying a precinct, or even an entire state, on this basis. Either way, he noted, such a move would infringe of the rights of voters to have their ballots counted.

The judge noted that none of these hypotheticals have happened yet, making granting relief now a bit thornier. But DNC lawyers argued the wait-and-see approach presents its own problems, and that is why they want clear language about certification hashed out in advance.

Georgia state attorney Elizabeth Young insisted that the case should proceed under the “presumption” that the state election board will certify its 2024 election results and tried to assuage the judge. But that remark prompted McBurney to note that he lives in a county where an election official had already refused to certify election results once, in 2020.

“I’m wondering when we need to set aside that presumption,” he told Young.

Careful with her response, Young told the judge that if a person was going to break with certifying, they would do so with or without the new rules in place.

As for the other new Georgia elections board rule, which grants board members access to “all” election records created during the election prior to the final results being tallied, the judge agreed that this level of transparency made sense.

DNC attorneys said there was “no question” they supported transparency in the election. But they argued that the broad nature of the rule as written could create a situation where an individual board member may say they had not received “all” election records and therefore cannot certify the results, causing delays.

“‘All’ is a big word. It’s only three letters, but it’s pretty expansive,” the judge conceded, saying that elections officials may define what counts as “all” records differently.

Depending on what “all” records includes, it may be impossible for workers to compile “all” documents before the certification deadline ― even if they were to work 24 hours a day, every day ― and that would let elections board members argue that they cannot certify the state’s results.

The case is not the only one related to Democrats’ concerns about how the election will play out in Georgia next month. On Tuesday, McBurney allowed attorneys for all parties to argue in a matter involving Julie Adams, a Republican member of the Fulton County Election Board who refused to certify Georgia’s election results during the May primary after she raised unfounded concerns about voter data.

She sued Fulton County afterward and sought a judgment declaring that she has the discretion to decide what information she needs to fulfill her obligations to certify.

The oath Adams took when joining the board states that she would make a “true and perfect return” of the results. This is the part, McBurney said, that has seemed to cause so much trouble: The oath Adams took to perform her duties in accordance with Georgia law stands even if error or fraud is discovered, he said.

“The oaths are not meaningless, and there’s clearly tension between a perfect return and a statute that says even if you see there are errors, you still need to certify,” he said.

Prior to Monday’s bench trial, Georgia’s Republican attorney general, Chris Carr, was sued by Democrats who are trying to block yet another rule advanced by the state elections board. This one was passed on Sept. 20 and requires Georgia precincts to hand-count ballots and then compare them against figures compiled by voting machines.

McBurney is expected to decide what to do with the new elections board rules with some speed, since Election Day is now a little more than a month away.