FILE — Fulton County Superior Court Judge Robert McBurney looks through paperwork, Aug. 14, 2023, in Atlanta. (AP Photo/Brynn Anderson, File).
A Republican official in Fulton County, Georgia, is appealing a court order directing her and other such officials to certify election results in a timely manner — whether they have concerns about them or not.
Earlier this month, Fulton County Superior Court Judge Robert McBurney issued a much-anticipated ruling.
In the 11-page final order, the judge found that county election officials exercise a “mandatory” role when it comes to vote certifications and that “no election superintendent (or member of a board of elections and registration) may refuse to certify or abstain from certifying election results under any circumstance.”
The ruling was a direct setback for Fulton County Board of Election member Julie Adams — who filed a lawsuit seeking clarity over her role in the agency. The declaratory judgment was hailed, on the other hand, by Democrats and election rights advocates who feared that allies of former President Donald Trump might insert chaos into the tabulation of ballots by refusing to quickly do their jobs.
In no uncertain terms, however, McBurney said those jobs had to be done — and that they had to be completed “not later than 5:00 P.M. on the Monday following the date on which such election was held.”
On Wednesday, in a notice of appeal filed with the Georgia Court of Appeals, Adams directly took issue with the lower court’s order.
In the appeal, the GOP official specifically signaled her opposition to the portion of McBurney’s order that says she “is required to vote in favor of certifying the election results by the deadline,” according to a copy of the filing obtained by The Associated Press.
In her original lawsuit, Adams outlined the notion of a powerful county election official — one tasked with tools to root out potential fraud or abuse as she saw fit. She asked the court to declare her duties as “discretionary, not ministerial in nature.” In service of this vision, Adams said, she should be able to delay certification of votes that she suspects are somehow less than aboveboard.
McBurney flatly rejected that idea.
“The superintendent is not free to ignore the absentee ballots although she may count them any way she wishes — again, discretion within a ministerial task. And if, in the course of her canvassing, counting, and investigating a superintendent should discover what appears to her to be fraud or systemic error, she still must count all votes — despite the perceived fraud — and report her concerns about fraud or error ‘to the appropriate district attorney.’ … [T]he superintendent must certify and must do so by a time certain. There are no exceptions. While the superintendent must investigate concerns about miscounts and must report those concerns to a prosecutor if they persist after she investigates, the existence of those concerns, those doubts, and those worries is not cause to delay or decline certification.”
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A lengthy footnote offers another avenue for dealing with fraud:
This does not leave the superintendent (or board member) without recourse or the means to voice substantive concerns about an election outcome. The Election Code has a tested mechanism for addressing alleged fraud and abuse: election contests. Election contests arise after the ministerial act of certification. They may be brought by a losing candidate or by any aggrieved elector (voter) — which includes a superintendent (assuming she voted). Importantly, election contests occur in open court, under the watchful eye of a judge and the public. The claims of fraud from one side are tested by the opposing side in that open court — rather than being silently “adjudicated” by a superintendent outside the public space, resulting in votes being excluded from the final count without due process being afforded those electors.
The court’s argumentative acknowledgment of potential fraud appears to have become another point of contention for Adams.
In her appeal, she expressed umbrage at the idea that alleged fraud might simply be reported to authorities or become the subject of lawsuits. Instead, Adams complained it would be “improper and insufficient” for her to rely on such processes “if she finds fraud and abuse.”
As of this writing, the court of appeals has given no indication whether they will take up the case in time for the upcoming general election.
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