Fulton judge rules that election certification is mandatory in Georgia

Mark Niesse, The Atlanta Journal-Constitution on Oct 15, 2024

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ATLANTA — Certifying elections is a required duty of county election boards in Georgia, and they’re not allowed to refuse finalizing results based on suspicions of miscounts or fraud, a Fulton County judge ruled Tuesday.

Superior Court Judge Robert McBurney rejected claims brought by Fulton County election board member Julie Adams, who voted against certifying this spring’s presidential primary.

McBurney ruled that Georgia law requires certification, and county election boards don’t have any discretion not to do so.

“If election superintendents were, as plaintiff urges, free to play investigator, prosecutor, jury, and judge and so — because of a unilateral determination of error or fraud — refuse to certify election results, Georgia voters would be silenced,” McBurney wrote “Our Constitution and our election code do not allow for that to happen.”

The ruling comes after a rising number of Republican election board members have refused to certify elections since 2020. An Atlanta Journal-Constitution investigation found at least 19 board members across the state declined to certify elections.

Adams, a Republican Party appointee to the board, had sued after she declined to certify the presidential and general primary because other county officials declined to fulfill her requests for a long list of election documents before the certification deadline.

Adams claimed in her lawsuit that she is “unable to fulfill her oath of office.” She was outvoted by the Democratic majority of the Fulton election board, which certified the primaries.

McBurney ruled that election information should be promptly provided to Adams and election board members, but any delay in receiving information isn’t a basis for refusing to certify elections.

When there are concerns about fraud or abuse, Georgia law allows candidates to file an election contest in court, McBurney said. It’s not up to election board members to adjudicate those claims.

Quoting the wizard Gandalf from “The Lord of the Rings,” McBurney wrote that the law’s requirement that election board members “shall” certify means it is mandatory.

“As only lawyers (and judges) can, we have muddied and mangled the meaning of the word ‘shall’ in our business,” McBurney wrote in a footnote. “To users of common parlance, ‘shall’ connotes instruction or command: You shall not pass!”

McBurney is also overseeing several other cases related to election certification and rules.

He hasn’t yet ruled in a lawsuit by Democrats contesting a State Election Board rule calling for a “reasonable inquiry” before county election boards certify elections.

And he’s hearing a separate case Tuesday by Cobb County’s election board seeking to invalidate six new election rules, including an election night hand-count verification of the number of ballots cast.