Local officials cannot refuse to certify election results, Georgia judge rules

By Nick Corasaniti / The New York Times

A county judge in Georgia has rejected an argument by allies of former President Donald Trump that local election officials have the power to refuse to certify election results, finding the process to be mandatory and one that must meet critical deadlines.

The ruling cuts at the heart of a key argument from right-wing activists following the 2020 election, when Trump sought to disrupt the certification process as part of his bid to subvert the results. In years since, right-wing groups have been seeking much broader authority and power over the certification process, an ambitious — and legally dubious — attempt to reimagine decades of settled law.

In May, Julie Adams, a member of the Fulton County Board of Elections and a close ally of right-wing election activists in Georgia, filed a lawsuit arguing that she had the right to refuse to certify an election.

But Judge Robert McBurney ruled Monday evening that the effort to wrest control of certification was unconstitutional and against state law, and that law enforcement and the courts remained the proper venue for any investigations, challenges or concerns about the integrity of an election.

"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," Judge McBurney wrote. "Our Constitution and our Election Code do not allow for that to happen."

Lawyers for Ms. Adams did not immediately respond to requests for comment Tuesday.

Judge McBurney acknowledged in his ruling that debates over certification had confused some local election officials, and he sought to clarify their role.

"Superintendents (and the staff to whom they may delegate some of these responsibilities) are rule-writers, personnel trainers and managers, logisticians, marketers, and accountants. Much of what they do is left to their broad, reasoned discretion," he wrote. "But not everything — some things an election superintendent must do, either in a certain way or by a certain time, with no discretion to do otherwise. Certification is one of those things."

Judge McBurney, who was appointed to the court by Gov. Nathan Deal, a Republican, in 2012, also oversaw the special grand jury investigation into election interference by Trump, who was subsequently indicted along with 18 allies on charges including racketeering.

Election certification has been a particular focus in Georgia this year. In addition to Ms. Adams' lawsuit, the Georgia State Election Board passed a rule in August giving local election officials the power to conduct a "reasonable inquiry" into the election before certification.

Republican and Democratic election officials in Georgia voiced concerns about the rule passed by the State Election Board, which has recently been governed by a right-wing majority. Officials have argued that the new rule was vague and provided no limits on the inquiry, and could lead to delays or missed certification deadlines.

Democrats filed a lawsuit challenging the rule, warning that it could create chaos on Election Day. That case is still pending.

In his ruling, Judge McBurney sought to offer some clarity on the issue, stating that delays in documents or information are no justification for refusing to certify, and that any irregularities uncovered by a local election official were to be handled by law enforcement.

"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," Judge McBurney wrote. "That is simply not an option for this particular ministerial function in the superintendent's broader portfolio of functions."

He added: "Any delay in receiving such information is not a basis for refusing to certify the election results or abstaining from doing so."

This article originally appeared in The New York Times.