Lawsuit Challenges New Rules for Election Certification in Georgia 

UPDATE: On October 16 in a separate lawsuit, the Fulton County Superior Court struck down  the same Georgia election board rules the Democratic National Committee had challenged as potentially allowing delay or prevention of certification, as well as additional rules passed by the board, including one requiring hand-counting of ballots after the polls close. The court found that the board lacked constitutional and statutory authority to make the rules. On October 22, the Georgia Supreme Court denied a motion by the Republican National Committee and Georgia Republican Party to pause the Fulton County court’s decision and reinstate the rules while their appeal of the decision is pending.

The parties still await a decision in the original Democratic National Committee-led challenge after a bench trial was held in early October before a different Fulton County Superior Court judge. Several additional challenges to the Georgia election board’s recent rules are also pending.

In September, the Fulton County court also dismissed the original lawsuit brought by county election board member Julie Adams. After she refiled, the judge issued an order on October 14 declaring election certification is mandatory, not discretionary, and no county board member “may refuse to certify or abstain from certifying election results under any circumstance.”

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A lawsuit filed on Monday challenges new Georgia election rules that may be interpreted by rogue county officials to refuse or delay certifying election results in the state.

Under two rules passed by the five-member Georgia Election Board this month, certifying election officials must conduct a “reasonable inquiry” prior to certification (the process of signing off on the completion of election results) and individual county board members can examine “all election related documentation” when reviewing a precinct’s returns. The changes were enacted 3–2 by board members Rick Jeffares, Janice Johnston, and Janelle King. Jeffares and King joined the board this year, and Johnston was appointed in 2022.

The new rules depart from long-standing law and practice that the role of certifying officials is nondiscretionary and, critics say, open the door to unfounded claims of election fraud, delays in certification, and demands for time-consuming investigations by county boards.

The plaintiffs in the lawsuit — including the Democratic National Committee, the Democratic Party of Georgia, individual county board members, and Democratic candidates for state representative — are asking the trial court in Fulton County (home to Atlanta) to hear the case ahead of this fall’s election.

Jeffares, Johnston, and King have suggested that certification of election results is discretionary and that the new rules will ensure that county board members are confident that election results are accurate. County election boards are required by Georgia law to certify an election once the many steps to aggregate, count, and cross-check the results have all taken place, the plaintiffs say. According to the plaintiffs, once these processes are complete and the totals verified, state law leaves certifying officials with no discretion to refuse to certify the results. Nor are certifying officials meant to look behind the results to resolve allegations of fraud or misconduct, the plaintiffs argue. Such allegations are, by law, heard by the courts.

Moreover, the lawsuit claims, the new rules are in fact intended to allow election officials to delay certification or not certify at all — in violation of Georgia law.

The new rules have been criticized by Georgia Secretary of State Brad Raffensperger, who suggested the state board does not have the authority to make such changes. He added that he believes county election boards will “follow the law” and certify elections on time.

Election experts have stressed that courts are able to handle any attempts to disrupt the certification system. However, they have also expressed concern that Georgia’s new rules could delay the certification process, which is supposed to occur shortly after an election. Unfounded inquiries and investigations could also stoke doubt about an election that was accurate and secure.

The challenge to the new rules is related to an ongoing dispute in the same court filed by Fulton County election board member Julie Adams, who is suing her own board and asking the court to declare that election certification is discretionary. (The Brennan Center filed a friend-of-the-court brief on behalf of the local League of Women Voters and NAACP chapters in support of the defendant election board’s motion to dismiss in that case.)

Adams’s lawsuit arose after she refused to certify the county’s May 2024 primary elections, claiming, without evidence, that there were “discrepancies.” The other board members voted for certification.

Both lawsuits raise questions over whether a practice that has long been rote and ministerial — and usually garners little fanfare or attention — can be altered in defiance of existing law.

Election certification has become increasingly politicized since the 2020 presidential election, when then-President Donald Trump lost his reelection bid and claimed that the election had been “stolen” from him. His claims have been widely exposed as untrue. The plaintiffs in the lawsuit over the rule changes note that “[a]t least 19 election board members across nine Georgia counties have objected to certifying elections during the past four years.” And election officials in states such as Arizona, Georgia, Michigan, Nevada, and Pennsylvania have refused to certify local election results. In each case, the elections were certified after litigation or state officials’ intervention.

Trump, who is running for president again, this month praised the Georgia board members who voted for the rule changes, calling them “pit bulls fighting for honesty, transparency and victory.”

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Erin Geiger Smith, Lawsuit Challenges New Rules for Election Certification in Georgia, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 28, 2024), https://statecourtreport.org/our-work/analysis-opinion/lawsuit-challenges-new-rules-election-certification-georgia.