Georgia Supreme Court Declines to Reinstate Controversial Election Rules 

The Georgia Supreme Court last week left in place a lower court ruling that several controversial new election rules are “illegal, unconstitutional, and void.”

Over the past few months, the GOP-controlled Georgia State Election board has passed multiple rules that critics, including Georgia’s Republican secretary of state, say would make elections less free and fair. In Republican National Committee v. Eternal Vigilance Action, the high court refused to reinstate rules that would have made election certification discretionary, required hand-counting the number of ballots, made drop boxes harder to use, and expanded the role of poll watchers.

The plaintiffs in the case, a Republican former Georgia state lawmaker and his conservative election-reform non-profit, argued that the rules conflicted with state election law. A trial judge agreed, blocking the rules.

The Republican National Committee — which intervened in the suit in support of the rules — appealed to the Georgia Supreme Court. The RNC requested that the court stay the lower court’s injunction blocking the rules while an appeal proceeds, and, noting a regular schedule would not allow a decision before Election Day, asked for expedited appeal.

In a one page order, the high court refused to lift the block and declined to expedite. That means the lower court’s order stands and the rules will not go into effect this year. 

Why does the ruling matter?

Democracy groups celebrated the decision. The rules would have changed the established protocols of a highly regulated and specific vote-counting process with many built-in checks — just weeks before a federal election.

Among the most controversial were rules that interfered with election certification. For one, they permitted county boards to conduct a “reasonable inquiry” into vote tabulation and canvassing before certification. Moreover, any county board member could “examine all election related documentation created during the conduct of elections prior to certification of results.”

In short, they would have encouraged county officials to refuse to certify or delay certifying election results in violation of state law.

State law makes clear that the responsibilities of certifying officials are limited and the role certifying officials play is nondiscretionary. Certification must be completed within a specific time frame laid out under state law. It takes place after poll workers and local election officials have already carried out a rigorous, multi-step process to tally the votes, check for any discrepancies in the vote totals, and ensure that the results are accurate.

By the time officials certify the results, the time for any “reasonable inquiry” has passed; at that point, certifying officials’ sole duty is to sign off on the completion of the vote counting process. It is also not the time to investigate or weigh in on legal issues, such as allegations of voter fraud. Instead, those questions must be left to law enforcement and courts that hear post-election challenges.

The requirement that ballots be hand counted was also flagged as particularly concerning by democracy groups. Under this rule, poll workers would have been required to remove the machine-printed ballots from their sealed box after polls closed to confirm their counts match the machine totals.

New and delicate procedures like hand-counting ballots would mean multiple additional people opening ballot boxes and handling ballots as compared to current protocol. Training those additional workers this close to the election would be challenging. Hand-counting also increases the potential for mishandling or fraud, as well as for unfounded accusations of inappropriate behavior. Put simply, critics say the rules — which workers and state officials argue are unnecessary — would require extensive additional work for already busy election workers without benefit to the voting public.

There were also concerns that some of the rules could suppress the vote. For example, a requirement that those returning an absentee ballot to certain drop box locations provide a signature, identification, and proof of their relationship with anyone for whom they are dropping off a ballot would have unnecessarily burdened voters.

What’s next in the conflict over election procedures in Georgia?

The appeal in Eternal Vigilance Action will proceed on a normal schedule, which means the state supreme court will fully consider the challenge against the rules over the next few months. It is still possible that the court will, eventually, allow the rules to go into effect before the next election cycle.

At least six additional lawsuits challenging the state board’s new rules remain pending. Several of those — including those filed by the Democratic National Committee and members of multiple county registration and elections boards — echo the arguments of the Eternal Vigilance Action plaintiffs alleging that the now-blocked certification and hand-count rules are illegal.

A judge in one of those cases, filed by the Cobb County board of elections, earlier this month also blocked enforcement of the hand-count rule, calling it “too much, too late.” 

The same judge made clear in separate litigation earlier this month that election superintendents must follow established law and protocol and certify elections within the time prescribed. (That decision, which does not directly involve the new rules, has now been appealed.)

The Cobb County lawsuit also challenges the so-called reconciliation rules, which require county officials to post publicly any difference between the number of ballots cast from each precinct and the number of people from each precinct who checked in to vote. Discrepancies could arise if, for example, a voter checked in and then decided not to cast a ballot. The plaintiffs say the rules could further delay certification and undermine confidence in accurate results. A decision on that rule is expected soon.

In August, former President Donald Trump called the three Republican members of the board that passed the challenged rules “pit bulls fighting for honesty, transparency and victory.” That statement fueled the controversy over the rules by raising questions over whether there were improperly partisan motivations behind the changes. Election workers, even those who belong to a political party, are expected to carry out their duties in a strictly non-partisan way.

The Brennan Center for Justice submitted a comment ahead of the adoption of the rules, urging the board not to adopt them. It later filed an amicus brief in Adams v. Fulton County Board of Elections and Registration, the case involving certification but not based on the new rules, explaining that certification is mandatory and attempts to delay certification are the latest tactic of the election denier movement.

Erin Geiger Smith is a writer and editor at The Brennan Center. The Brennan Center’s Leah Tulin provided research for this article.

Suggested Citation: Erin Geiger Smith, Georgia Supreme Court Declines to Reinstate Controversial Election Rules, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/georgia-supreme-court-declines-reinstate-controversial-election-rules