Local officials face off against Georgia’s elections board over rule that could shake up November

A hearing was held Tuesday in a key Georgia county’s lawsuit against the State Elections Board (SEB), roughly three weeks until voters head to the polls on Nov. 5.

Fulton County Superior Court Judge Robert McBurney is overseeing the case filed by the Cobb County Board of Elections earlier this month. The bipartisan board is taking issue with a set of new rules imposed by the SEB, including a measure to require county election workers to hand count ballots after polls close to ensure accurate machine tabulation.

The rule has also sparked a lawsuit filed by Georgia Democratic officials, which is set for a hearing on Wednesday.

Cobb County is a majority suburban area anchored by the city of Marietta, a suburb of Atlanta.

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During the Tuesday hearing, attorneys for the SEB argued that there were no limitations on when election rules can be passed and pointed out that the specific hand-counting rule applies only to the ballots themselves, not tallying individual votes cast on the ballots.

“All we are doing is saying, you need to [have] receipts of votes cast, mirror the number that the machine says were cast,” the lawyer said.

But McBurney noted that it was “late in the game” for the SEB to change election rules but also conceded that, in a vacuum, wanting to ensure that the number of ballots cast matched the machine-count was a “laudable goal.”

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“Why wouldn’t we just pause, especially on the hand-count rule, given what looks like a fairly robust record of chaos that it is sowing?” the judge asked the defendants’ lawyer.

“I’m asking you from a practical perspective, if the goal is orderly, reliable elections, why the prudent — in terms of reasonableness approach — wouldn’t be to say, ‘Let’s try this next election,’ when all those questions can be answered with no one having to sue?” 

Republican Party officials have held the rule up as a critical guardrail to ensuring voters can be confident in their elections, but Democrats contend that its goal is to foment doubt in the process.

The Cobb County lawsuit argued the rules put elections boards across the state in “an untenable position.”

An attorney in support of the plaintiffs later pointed out the state officials who have come out in opposition to the rules changes, including Republican Secretary of State Brad Raffensperger.

“All of them are concerned about the impact of this rule,” the lawyer said.

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“It would be one thing in an ideal sterile environment to have people who are fresh and energized sit down and count ballots… That’s not how this is going to play out. In reality, as our petitioner affidavits reference, poll workers get to their polls as early as 5 a.m., 5:30, 6 a.m. They stay as late as 8 p.m., 10 p.m. And so we’re talking about adding something on top of an already 14- to 16-hour day when people are exhausted.”

McBurney pointed out that it could then be done the next day, to which the attorney responded, “But then there are challenges that come with that as well, Your Honor.”

The judge said the hand-counting ballots rule “does not directly interfere with the certification work going on” but that it “will be a resource drain, no question.”

But the SEB attorney later criticized the plaintiffs’ arguments as conjecture.

“All that it says over and over again is, quote, ‘I am concerned about the rule’s last minute adoption….I am concerned that the Cobb County Elections Office lacks space. I am concerned that the hand-count rule may lead to delays,” he said. 

“It is hypothetical on top of conjecture, on top of speculation. There is no imminent threat here. There is a threat of potential things that might happen if the worst-case scenario comes up, and that’s simply not sufficient for declaratory judgment.”

McBurney heard the case the same day as he issued a decision in a separate Georgia elections case, ruling that county elections supervisors are not allowed to delay certification of results on the grounds of their own suspicions of fraud or mistakes.

There are a flurry of lawsuits expected around the vote count and voter access this election, as there are virtually every presidential election cycle.

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