Judge invalidates election rules passed by Georgia board, including requirement that counties hand-count ballots

ATLANTA — A Georgia judge has declared that seven new election rules recently passed by the State Election Board are “illegal, unconstitutional and void.”

Fulton County Superior Court Judge Thomas Cox issued the order Wednesday after holding a hearing on challenges to the rules. The rules that Cox invalidated include three that had gotten a lot of attention — one that requires that the number of ballots be hand-counted after the close of polls and two that had to do with the certification of election results.

Cox found that the rules are “unsupported by Georgia’s Election Code and are in fact contrary to the Election Code.” He also wrote that the State Election Board did not have authority to pass them. He ordered the board to immediately remove the rules and to inform all state and local election officials that the rules are void and not to be followed.

The Associated Press has reached out to the lawyers for the State Election Board, as well as the three Republican members who had supported the rules, seeking comment on the judge’s ruling. They could appeal but time is running short with less than three weeks to go until Election Day.

The State Election Board, which is controlled by three Republicans endorsed by former President Donald Trump, has passed numerous rules in recent months mostly dealing with the processes that happen after ballots are cast. Trump narrowly lost Georgia to Democrat Joe Biden in the 2020 presidential election but claimed without proof that widespread fraud cost him victory in the state.

Democratic Party organizations, local election officials and a group headed by a former Republican state lawmaker have filed at least half a dozen lawsuits over the rules. Democrats, voting rights groups and some legal experts have raised concerns that some rules could be used by Trump allies to delay or avoid certification or to cast doubt on results if he loses next month’s presidential election to Democratic Vice President Kamala Harris.

Cox’s ruling came in a lawsuit filed by Eternal Vigilance Action, which was founded and led by former state Rep. Scot Turner, a Republican. The organization had argued that the State Election Board overstepped its authority in adopting the rules.

Reached by phone Wednesday evening, Turner said he was “thrilled with the victory.”

“It was a complete and total victory for the Constitution of the United States,” he said. “These rules were opposed by citizens that are Republican, as well as Democrats and independents. This is not about party. It’s about doing what’s constitutional and reestablishing separation of powers, and that’s something that every conservative in this country should be concerned with and support.”

One new rule that the judge blocked requires that three separate poll workers count the number of Election Day ballots by hand to make sure the number of paper ballots matches the electronic tallies on scanners, check-in computers and voting machines.

Georgia voters make selections on a touchscreen voting machine that prints out a piece of paper with a human-readable list of the voter’s choices as well as a QR code. That is the ballot that the voter puts into a scanner, which records the votes. The hand-count would be of the paper ballots — not the votes.

Critics, including many county election officials, argued that a hand-count could slow the reporting of election results and put an extra burden on poll workers at the end of an already long day. They also said there isn’t enough time to adequately train poll workers.

The rule’s supporters argued the count would take extra minutes, not hours. They also noted that scanner memory cards with the vote tallies could be sent to central tabulation centers in each county while the hand-count is completed so the reporting of results would not be slowed.

Fulton County Superior Court Judge Robert McBurney on Tuesday had temporarily blocked the hand-count for the November election while he considers the legal merits. He said the hand-count may ultimately prove to be good policy, but it’s too close to the general election to implement it now.

Cox wrote that the rule “is nowhere authorized” by Georgia laws, which “proscribe the duties of poll officers after the polls close. Hand counting is not among them.”

Two other new rules that Cox invalidated were passed by the State Election Board in August and have to do with certification. One provides a definition of certification that includes requiring county officials to conduct a “reasonable inquiry” before certifying results, but it does not specify what that means. The other includes language allowing county election officials “to examine all election related documentation created during the conduct of elections.”

Supporters argued those rules are necessary to ensure the accuracy of the vote totals before county election officials sign off on them. Critics said they could be used to delay or deny certification.

The first certification rule is not part of Georgia law and “adds an additional and undefined step into the certification process,” Cox wrote, saying it is thus “inconsistent with and unsupported by” Georgia law, making it “void and unenforceable.” The second rule is “directly inconsistent” with Georgia law, “which provides the time, manner, and method in which election-related documents must be produced and maintained,” he wrote.

The other rules Cox said are illegal and unconstitutional are ones that: require someone delivering an absentee ballot in person to provide a signature and photo ID; demand video surveillance and recording of ballot drop boxes after polls close during early voting; expand the mandatory designated areas where partisan poll watchers can stand at tabulation centers; and require daily public updates of the number of votes cast during early voting.

At least half a dozen lawsuits had been filed challenging some or all of the new rules. The Democratic National Committee and the Democratic Party of Georgia had filed two lawsuits and joined others. Election boards in some counties and individual election officials in other counties had also sued.

Republican Secretary of State Brad Raffensperger, the state’s top elections official, has said the last-minute nature of the rules creates confusion for voters and poll workers and can undermine confidence in election results. An association of county election officials also asked the state board to tap the brakes on new rules.

And in a memo last month, the office of state Attorney General Chris Carr, also a Republican, warned that some rules appeared to conflict with existing law.