A Win for Democracy: Two Georgia Judges Rule Election Board Must Certify Election Results 

Civil Rights Policy Brief #221 | By: Rod Maggay | October 26, 2024

Featured Photo by: apnews.com

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Policy Summary: On October 14, 2024, Judge Robert McBurney of the Superior Court of Fulton County, Atlanta Judicial Circuit issued a final order in the civil action Adams v. Fulton County. That is a case brought by a Republican member of the election board in Fulton County, Georgia in order to determine whether her duties as a member of the board were “discretionary” and whether she was entitled to “full access” to all “election materials.” This lawsuit came together as a result of new rules implemented by the Georgia State Election Board. These package of rules were not passed by the Georgia State Legislature but were instead passed by the board. The rule regarding certification of an election in the county allowed local boards to conduct “reasonable inquiry” before certifying the results of an election. The rule passed the board by a vote of 3 – 2 with all of the Republicans on the board voting in favor of the rule. In addition to the final order issued by Judge McBurney, Judge Thomas Cox, another Fulton County Superior Court judge in a separate case brought challenging the new election board rules declared the rules, including the new rule on the certification of elections, “illegal, unconstitutional and void.” LEARN MORE 

Policy Analysis: The decisions reached by both Judge McBurney and Judge Cox regarding the process of certifying elections in Georgia is significant. Judge Cox’s decision provided the foundation of why the new election board rules could not stand. Because the rules had been initially passed by only the Georgia State Elections Board itself and not the Georgia State Legislature, the rules could not be inconsistent with any law passed by the Legislature. Judge Cox found the rules were and were thus unconstitutional and void. Additionally, Judge Cox found that the election board did not have the authority to pass the rules, which added another layer as to why the board rules were invalid. The rules were in effect constitutionally devoid of force as a rule of law. 

But it was Judge McBurney’s order that many saw as quite possibly having the most effect on the upcoming 2024 presidential election. What many supporters of the Republican members of the elections board were hoping for was a decision that would permit members on the election board the right to refuse to certify the election results. This was a frightening proposition because if members of the election board were allowed discretion to certify an election, a member could conceivably delay or permanently hold up the certification of an election for any reason. The rule had no legal standards that could be used to help guide an election board member’s decision to not certify. A board member could simply do it, even base it on partisan reasons, or even refuse to have certain votes counted or included in the final tally. But Judge McBurney’s order made clear that the duties of the election board members were ministerial when it came to certification of election results. Judge McBurney explained that many duties of election board members were in fact discretionary which allowed them to examine the facts of a situation and/or case and then make a decision before deciding on a course of action. But he made clear that there was no discretion in certifying an election and that their duties in this scenario were ministerial which meant that, under state law, they had a mandatory duty to certify an election. They had no discretion to exclude ballots or to make determinations as to the validity of a set of ballots over another. Nor could they make the unilateral determination that a fraud or errors had occurred. Judge McBurney did not see it appropriate that a board member could as one person act as “investigator, prosecutor, jury and judge” and unilaterally determine error or fraud because then their act of refusing to certify an election would allow one person to silence Georgia voters. And with many officials aligned with former President Trump’s stolen election conspiracy theories, it would be quite conceivable that partisan reasons would be used to delay certification. And it could even lead to a manipulation of the results of the vote tally in a Georgia county. But with these two orders from these two judges, the possibility that a Georgia election administrator could delay certification on their own accord seems less likely. It was a win for democracy in Georgia the last week courtesy of Judge McBurney and Judge Cox. 

 



Engagement Resources
  • Brennan Center for Justice – background info on the certification process in key battleground states. 
  • ProPublica – background info on the certification battle in Georgia and how the battle behind the scenes ended up in court. 


This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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