A Georgia judge ruled this week that county election board members cannot block the certification of votes based on suspicions of fraud or error.
The ruling, if it stands, puts to rest the question of whether local election officials would be allowed to throw out individual precincts from county vote totals if they suspect fraud or error. A new rule adopted by the State Election Board appeared to allow such exclusions.
If county election board members were “free to play investigator, prosecutor, jury, and judge and so — because of a unilateral determination of error or fraud — refuse to certify election results, Georgia voters would be silenced,” Fulton County Superior Court Judge Robert McBurney wrote in the ruling. “Our Constitution and our Election Code do not allow for that to happen.”
The ruling stems from a lawsuit brought by Julie Adams, a Republican member of Fulton County’s election board who is also part of a right-wing group that has raised doubts about the integrity of U.S. elections. Adams’ lawyer argued in court that the new election rule empowered county board members to refuse to certify votes they suspected of being tainted by fraud or error. This power, the lawyer argued, extended all the way to excluding entire precincts’ votes if they found something they considered suspicious in the returns.
A ProPublica examination found that if Adams’ interpretation of the rule had stood, election officials in just a handful of rural counties could have excluded enough votes to impact the outcome of the presidential race. After former President Donald Trump lost his reelection bid in 2020, Republican legislators in Georgia launched efforts to overhaul county election boards one at a time, sometimes unseating Democrats and stacking the boards with Trump backers. Election boards in Spalding, Troup and Ware counties, for instance, are now led by election skeptics, including one man who called President Joe Biden a “pedophile” and made sexually degrading comments about Vice President Kamala Harris. If the judge had accepted Adams’ argument, these county boards would have had the power to exclude the ballots of Democratic precincts that had provided roughly 8,000 more votes for Biden than Trump in 2020.
The chairman of Spalding County’s election board declined comment to ProPublica this month. The chair of Ware County’s board did not respond to requests for comment. William Stump, chair of Troup County’s board, said he doesn’t think anyone on the board is overtly partisan. “Everybody’s concern is to get the numbers right and get them out on time,” Stump said.
McBurney’s ruling made clear that excluding Democratic precincts’ votes would not be allowed. “If in the course of her canvassing, counting, and investigating,” a board member “should discover what appears to her to be fraud or systemic error, she still must count all votes,” McBurney wrote. The correct way forward is for the board member to “report her concerns about fraud or error ‘to the appropriate district attorney,’” as stated in Georgia law, not do the work of professional investigators herself.
If interested parties want to dispute the result, the long-standing pathway is by contesting the election in court. “Importantly, election contests occur in open court, under the watchful eye of a judge and the public,” McBurney wrote. “The claims of fraud from one side are tested by the opposing side in that open court — rather than being silently ‘adjudicated’ by” county board members “outside the public space, resulting in votes being excluded from the final count without due process being afforded those electors.”
The ruling is the latest development in a legal battle about whether county election board members have the power to delay or block the certification of election results — a power experts warned could affect the outcome of the presidential election in November. Many of those experts emphasize, however, that certification has long been interpreted as a nondiscretionary duty for election board members.
Much of that legal battle was driven by Adams, the Fulton County board member and the regional coordinator for the Election Integrity Network, a right-wing organization led by a lawyer who tried to help Trump overturn the 2020 election in Georgia. Going against over a century of legal precedent, Adams voted against certifying the March presidential primary election, saying she needed more information to investigate the results, but was outvoted by the Democratic majority. She then sued the board and the county’s election director, asking for the court to find that her certification duties, among others responsibilities, “are, in fact, discretionary, not ministerial.”
Then, behind the scenes, Adams began working to change the rules for certifying elections in Georgia, pushing activists to bring forward a rule for the State Election Board to adopt that would vastly expand the power of county board members to not certify votes they deemed suspicious, as ProPublica reported. When that rule was first brought before the State Election Board, members voted it down as illegal. However, in August, after one moderate Republican member was forced off the board and replaced, the new majority, each of whom Trump praised by name at a rally, passed a version of the rule almost identical to the one that the previous majority had found to be illegal.
In back-to-back bench trials at the beginning of October, McBurney heard Adams’ case, along with a similar one that pitted the Democratic and Republican national committees against each other over whether the certification of election results was mandatory. McBurney’s ruling only directly addressed Adams’ lawsuit.
Adams had also asked in her lawsuit for the court to grant her greater access to election-related documents and information before certifying the vote. McBurney ruled that this information should be granted to her, but that tardiness in receiving it did not allow her to refuse to certify election results.
“This suit was brought to ensure Ms. Adams had access to all the election material she needs in order to ensure Fulton County elections are free from irregularities, and to have the ability to challenge irregularities in election results,” said Richard Lawson, a lawyer for Adams and the Center for Litigation at the America First Policy Institute, a Trump-allied think tank. “This order preserves her rights in both regards.”
The ruling makes clear that the avenues that county board members can use to challenge election results they deem suspicious are the same ones as before the lawsuit and do not include delaying certification.
“It is my belief that having access to the entire election process will allow every board member to know and have confidence in the true and accurate results before the time for certification,” Adams said in a statement provided by Lawson.
Kristin Nabers, the Georgia state director for All Voting is Local, a voting rights advocacy organization, said in a statement, “Georgia voters won today against a shameless attempt from a prominent election denier who tried to turn the long-standing, routine duty of certification into a discretionary decision for election officials when they don’t like the election results.”
Experts expect the ruling to be appealed, which means a final determination could come much closer to the election.
Neither Adams nor Lawson answered questions via email about whether they planned to appeal.
McBurney did not issue a ruling in the second case he heard alongside Adams’ about another new rule that experts have warned could be used to disrupt the election by dragging an ill-defined “reasonable inquiry” past tight certification deadlines. However, McBurney wrote that a county board member “‘shall’ certify her jurisdiction’s election returns” by the state deadline.
The legal battles around the State Election Board rules are continuing. On Tuesday, McBurney heard arguments in a different case from Cobb County’s election board asserting that multiple other new rules exceed the state board’s authority. That night, he issued an order blocking the implementation of a rule requiring election workers to hand-count ballots, warning it could lead to “administrative chaos.” On Wednesday, another judge heard a similar Republican-led lawsuit against the State Election Board over the new rules. The board has faced at least seven lawsuits over its recent changes to rules and related actions.
McBurney in his ruling signaled an impatience with the efforts to change election rules, writing that “key participants in the State’s election management system have increasingly sought to impose their own rules and approaches that are either inconsistent with or flatly contrary to the letter of these laws.”
Heather Vogell contributed reporting.
