A Fulton County Superior Court judge is expected to decide before Election Day whether two of the state’s controversial new election rules should be allowed to stand ahead of the Nov. 5 presidential election between Kamala Harris and Donald Trump — a case that has major implications for Black voters in Georgia, according to voting rights advocates.
Three Republican members of the State Election Board — Janelle King, Janice Johnston, and Rick Jeffares — approved the new rules in early August at the behest of Georgia citizens who’ve echoed Trump’s unfounded concerns about election integrity and widespread voter fraud taking place during the 2020 election.
The most contentious rule in question gives county election board members the power to conduct a “reasonable inquiry” before certifying election results if conflicts arise over perceived irregularities, including suspected voter fraud, an issue Trump and his supporters in Georgia have harped on ever since his 2020 election loss to President Joe Biden.
The second rule in dispute allows county election officials to examine “all election-related documentation” before certifying results at the county level. It’s unclear whether that includes individual ballots cast by Georgia voters.
Trump praised King, Johnston, and Jeffares by name and called them “pit bulls fighting for honesty, transparency and victory” during an August campaign rally in Atlanta.
Voting rights advocates say the SEB’s new rules, which even some prominent Georgia Republicans have opposed, could result in pro-Trump officials circumventing the will of most Black voters across the state unless a judge strikes down the rules before Nov. 5.
A crucial ruling
Fulton County Superior Court Judge Robert McBurney is presiding over the SEB case. The Harvard Law School graduate was originally appointed to his current role by former Gov. Nathan Deal, a Republican, in 2012.
McBurney is also the judge who overturned Georgia’s controversial six-week abortion restriction law last week. His ruling on the SEB case could have dire consequences for Black voters in Georgia beyond this year’s election, according to Wayne Kendall, a local attorney and election law expert.
“These rules are a voter suppression tactic,” Kendall told Capital B Atlanta last week. “Any person who is against allowing one party or one individual candidate to have a basis to overturn an election, they would be against these rules.”
Allowing the SEB’s new rules to exist in their current form, Kendall argues, would give right-wing county election officials across the state the power to disqualify votes cast in majority-Black precincts for perceived irregularities and suspected voter fraud without due process.
“They can just say … ‘There’s a discrepancy, we think, in these particular votes and a particular precinct, and therefore we’re either going to [not count votes from] that precinct entirely, or we’re gonna come up with what we think is the true results of the vote tabulation in that particular precinct,’” Kendall said.
Akiva Freidlin, senior staff attorney for the Georgia ACLU, said it’s possible county election officials will try disqualifying ballots from majority-Black precincts. But it’s more likely that voter fraud allegations would give Trump and his supporters ammunition to litigate and have the election decided in court instead of at the polls.
“Even if it’s not like, ‘Hey, we’re throwing out these Black votes directly,’ it could still lead to disenfranchisement,” Freidlin said.
Refusing to count some Black voters’ ballots could change the course of the presidential election.
The overwhelming majority of Black voters in Georgia and across the nation are expected to support Harris over Trump in November. Georgia’s last presidential election was decided by less than 12,000 votes. Disqualifying enough ballots cast by Black voters could help Trump win the state’s 16 electoral college votes, strengthening his chance of retaking the White House.
This is why it’s so important for Congress to pass the John Lewis Voting Rights Act, according to Kendall. He says none of these rules would have been approved if the U.S. Supreme Court hadn’t gutted a key portion of the 1965 Voting Rights Act in 2013 via the court’s notorious Shelby County v. Holder decision, which eliminated the requirement for former Confederate states seeking to change election rules to get preclearance from the federal government.
“It’s very unlikely that these rules could ever have come into effect if section five of the Voting Rights Act had still been in effect,” Kendall said.
Certification isn’t optional
The Democratic Party of Georgia, the Democratic National Committee, and some individual lawmakers running in competitive races this fall filed a lawsuit over the new rules against the State Election Board in late August.
Oral arguments in the SEB case took place last Tuesday in Atlanta.
Georgia law requires certification to take place within seven days of a general election.
The plaintiff’s attorney suggested during the hearing that it wasn’t clear whether the SEB’s lawyers were arguing county election officials should be allowed to “skip” the certification deadline if they had voter fraud concerns.
Judge McBurney made it clear early on during the hearing that county election boards in Georgia are legally required to certify election results within seven days of the Nov. 5 general election — even if they share Trump’s concerns about alleged voter fraud.
Attorneys for the Democrats and the SEB agreed with the judge’s assessment that state law requires county election officials to certify their election results by 5 p.m. on Nov. 12 no matter what, and that the SEB “lacks the authority” to change the deadline.
“We’re not arguing about, must there be a certification, and, must it be by that deadline,” McBurney clarified during the hearing on Tuesday.
Deliberation on the new rules
The plaintiffs and voting rights advocates have complained that the “reasonable inquiry” rule doesn’t clearly define what a reasonable inquiry is. McBurney agreed on Tuesday.
“The reasonable inquiry rule, what exactly it calls for [county election officials] to do, is certainly in flux,” McBurney said during the hearing.
The SEB’s attorneys argued state law allows the board to take over a county election board’s certification process if it’s determined that county officials failed to properly execute a reasonable inquiry proceeding. When and how the State Election Board is permitted to take over a county board’s certification process is also in dispute.
As for the second rule in question, the “examination rule,” the plaintiffs say it creates bureaucratic headaches for poll workers and county election staffers on election night. The SEB lawyers argue that the rule, which gives county election officials the power to examine election-related documents, is necessary to pacify concerns about alleged voter fraud and falls within the scope of the SEB’s regulatory powers.
McBurney said he will make his ruling within the coming weeks.
Don’t be discouraged
Freidlin, the ACLU attorney, acknowledged the threat the SEB’s rules pose to Black voting rights in Georgia, but he also encouraged Black Georgians not to let the rules dissuade them from voting.
“Everyone should get out there and exercise their freedom to vote,” Freidlin said. “The more voters participate, the harder it will be for election saboteurs to claim there’s fraud and uncertainty about what the people have chosen.”
