Aug. 30 (UPI) — National and state Democrats, along with a number of county board members, are suing the Georgia State Election Board over certification rules they argue could cause confusion and delay the process.
The lawsuit was filed on Monday by the Democratic National Committee, Democratic Party of Georgia and a group of nine county board members throughout the state. It challenges two new rules that the election board passed earlier this month that give greater authority to local election officials to investigate and delay certification of election results.
The first rule, called the reasonable inquiry rule, gives the state’s 159 county election boards the authority to conduct a vaguely described investigation into the results of the election beyond the tabulation and canvassing that already takes place.
The second rule, the examination rule, gives election officials the authority to access any election-related documents without outlining any limitations.
The lawsuit argues that these rules, and the decision by the election board to enact them, violate state election law. It also calls the state election board’s authority to make such rules into question.
The plaintiffs say the rules could comply with state law if they were to ensure they will not allow certification to be delayed beyond the state’s Nov. 12 deadline. Delaying certification beyond that date could result in Secretary of State Brad Raffensperger being forced to certify without results from counties where challenges are made, leading to voters in those counties being disenfranchised.
The Democratic Party of Georgia submitted comments to the election board during the public comment period earlier this year. It suggested that if these rules were to be adopted, the board would issue a “concise statement” for and against its adoption. The board did not.
“This is a trend across the entire country,” Michael Adame, senior staff attorney with the Public Rights Project’s Election Protection Hub, told UPI. “The idea is to muddy the waters over election workers and confuse voters to put out this idea that the election will be up to debate and potentially impacted by fraud.”
Nineteen election board members in nine Georgia counties have raised challenges to the certification of election results since the 2020 election.
Most recently Julie Adams, a Fulton County election board member, objected to certifying the results of the May primary. She continued to object and ultimately refused to take part in certifying the results despite being given access to election documents she requested. She alleged that there were discrepancies in the results but she did not specify what they were.
Adams later filed a lawsuit against the county board, arguing that election officials can certify results or refuse to at their discretion.
“Plaintiff’s duties are, in fact, discretionary, not ministerial,” Adams’ lawsuit reads.
The lawsuit remains open.
The argument over the role of election officials was waged before the state election board as it considered adopting the new rules. Republicans on the board voiced support for election officials applying their own judgment in the decision to certify results.
Georgia law has recognized the duty of election superintendents and boards to be limited to assuring that votes are received and properly tabulated and canvassed. They are then to be sent on to the secretary of state.
Raffensperger has spoken out against the rules, taking issue with the confusion they may create and the fact that they were instituted within about three months of the election.
“Activists seeking to impose last-minute changes in election procedures outside of the legislative process undermine voter confidence and burden election workers,” Raffensperger said in a statement. “The General Assembly knew that quick reporting of results and certification is paramount to voter confidence and passed S.B. 202, but misguided attempts by the State Election Board will delay election results and undermine the chain of custody safeguards. Georgia voters reject this 11th-hour chaos, and so should the unelected members of the State Election Board.”
The state election board is made up of four Republicans and one Democrat.
Three Republicans — Janice Johnston, Rick Jeffares and Janelle King — have been praised by name by former President Donald Trump while campaigning in Georgia. Jeffares and King were appointed to the board earlier this year.
“Janice Johnston, Rick Jeffares and Janelle King, three people are all pit bulls fighting for honesty, transparency and victory,” Trump said at a campaign rally earlier this month.
The fourth Republican, chairman John Fervier, joined Democrat Sarah Tindall Ghazal in opposing the rules. They agreed that the role of election officers in certification is ministerial. They also argued that the state election board’s rulemaking role is only meant to give clarity to statutory rules handed down by the legislature.
Ghazal said that if the legislature wanted to enact these types of rules it would have.
Democrats, in their lawsuit, reaffirm that the board does not have the authority to grant election superintendents with such leeway in their decision to certify election results.
“These rules go way beyond the board’s rulemaking authority,” Sophie House, staff attorney with the Public Rights Project, told UPI. “They also are likely to create chaos and an unreasonable burden for Georgia election officials who are already facing tremendous pressure.”
House has been working closely on the Election Protection Hub’s legal support in Georgia. She said election officials are already beginning to prepare for the Nov. 5 election as these new rules are being handed down and litigated. While opponents asked the board to provide greater clarity on the boundaries of these rules and to ensure that certification will be complete by the statutory deadline, she said it has done no such thing.
“The rules they’ve adopted exacerbate those concerns about confusion and a lack of clarity around the election and undermining public trust,” she said. “The petitions submitted made clear that the motivation behind the rules is to give election officials wide discretion not to certify. This opens up a lot of uncharted territory. This is not what the law has ever contemplated.”
The U.S. Supreme Court has urged states not to make changes to their election proceedings so close to election day, Adame said. However, state courts have not adopted any similar guidelines.
“We’ve seen federal courts shut down these kinds of changes,” Adame said. “SCOTUS tells us election administration shouldn’t be messed with. It confuses voters.”
There is no clear timeline for when the Democrats’ lawsuit will be resolved by the district court.
The rules in Georgia are only one example of nationwide attempts by partisan actors to change the administration of elections and sow doubt in their results, Adame said.
“We have been tracking a significant uptick in efforts by both activist groups and partisan actors to challenge the validity and structures of election certification,” he said. “These have become battlegrounds for partisan activity in a way that pre-COVID wasn’t the case. The term ‘election denier’ is important here.”
Adame highlighted that many of these challenges are occurring in swing states.
Other states, including Michigan, Arizona and Nevada, have had to apply pressure to individual county boards to certify election results after some board members held out. This happened most recently in Washoe County, Nev., last month. Two of the county’s three board members refused to certify the results of a primary election before changing course and acknowledging that it is their mandatory duty.
“What’s interesting about Georgia is it’s the state entity trying to give permission to potentially rogue counties and cities to not certify,” Adame said.
Adame added that while much focus is given to the role of election officials, this issue is about voters and their right to have their votes counted.
“It’s an effort to prevent certain people from voting,” he said. “We have an obvious history of voter suppression. Now it’s an attack on the election itself. The whole process is now up for debate.”
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