Left: Fulton County Superior Court Judge Robert McBurney looks at documents, Monday, Aug. 14, 2023, in Atlanta (AP Photo/Brynn Anderson). Center: Donald Trump speaks at the annual Road to Majority conference in Washington, DC, in June 2024 (Allison Bailey/NurPhoto via AP). Right: Supreme Court Justice Brett Kavanaugh answers questions during a judicial conference, Friday, May 10, 2024, in Austin, Texas (AP Photo/Eric Gay).
A judge in Georgia late Wednesday put the kibosh on a recent change to Peach State election law engineered by allies of Donald Trump.
And part of the justification for the pause cited by the court was the still-fresh memory of the Jan. 6 attack on the U.S. Capitol.
“[T]he public interest is not disserved by pressing pause here,” Fulton County Superior Court Judge Robert McBurney wrote in the order. “This election season is fraught; memories of January 6 have not faded away, regardless of one’s view of that date’s fame or infamy. Anything that adds uncertainty and disorder to the electoral process disserves the public.”
In September, the Georgia State Election Board approved a rule mandating counties to hand-count the total number of paper ballots and “immediately” reconcile those numbers with the recorded number of ballots from each “scanner” box. This process must be carried out three times — that is, by three separate officials. The timeline for completion varies depending on the number of ballots.
“The decision about when to start this hand count rests with the poll manager or assistant poll manager,” the court observes. “If a scanner ballot box contains more than 750 ballots on Election Day, the poll manager is authorized to commence the hand count the next day and finish at any point during the week designated for county certification. If the hand counting does not occur on Election Day at the precinct, it must take place at the County election office.”
In the decision, the court says it is granting several requests for interlocutory relief and enforcing a temporary injunction while considering briefs filed by other parties — pending a final order.
The new hand-counting rule was slated to take effect on Oct. 22.
The judge, in a footnote, clarified that the since-shelved rule would not have any impact on tabulating any given candidate’s votes — simply the total number of ballots cast per box.
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But for the timing, the court appeared open to the shift promulgated late last month by the GOP-majority State Election Board.
“On paper, the Hand Count Rule — if properly promulgated — appears consistent with the SEB’s mission of ensuring fair, legal, and orderly elections,” the order goes on. “It is, at base, simply a check of ballot counts, a human eyeball confirmation that the machine counts match reality. But that is not what confronts Georgians today.”
McBurney criticized the “timing” of the change as too intrusive on the more than “7,500 poll workers who will not have received any formal, cohesive, or consistent training” on how to implement the new rule.
On Sept. 20, the election board voted 3-2 to pass the new measure. One Democrat and one nonparty member of the board opposed the hand-count rule. At the time, elected officials warned the rule would likely be problematic in terms of implementation and litigation.
Democrats and others, in turn, promptly sued to enjoin the rule — claiming the true motivation behind the change was to slow down the process and inject uncertainty.
The judge said parties opposed to the new rule have shown that hand-counting ballot totals would “make this coming election inefficient and non-uniform by the introduction of an entirely new process” and “in a manner unknown and untested in the era of ballot scanning devices.”
McBurney goes on here at length:
No training has been administered (let alone developed), no protocols for handling write-in ballots (which are handled separately from regular ballots) have been issued, and no allowances have been made in any county’s election budget for additional personnel and other expenses required to implement the Hand Count Rule. The administrative chaos that will — not may — ensue is entirely inconsistent with the obligations of our boards of elections (and the SEB) to ensure that our elections are fair, legal, and orderly.
Key to the court’s analysis is a concurrence by U.S. Supreme Court Justice Brett Kavanaugh in a years-old case about how states must have enough time to deal with changes to election rules.
“[S]tate and local election officials need substantial time to plan for elections,” McBurney quotes — before paraphrasing: “Running elections state-wide is extraordinarily complicated and difficult. Those elections require enormous advance preparations by state and local officials and pose significant logistical challenges. [Implementing the Hand Count Rule] would require heroic efforts by those state and local authorities in the next few weeks — and even heroic efforts likely would not be enough to avoid chaos and confusion.”
In the end, the Georgia judge determined the hand-counting rule was “too much, too late” and ruled that “the status quo” on ballot counting “shall remain in effect,” at least for now.
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