The highest court in Georgia put a lid on restrictive and otherwise controversial new voting rules passed by a GOP-majority state board earlier this year. Those rules will not take effect until after the upcoming general election, if ever.
The ruling comes as a loss for the Republican National Committee, who sued to have the rules reinstated with an “extraordinary motion,” the Peach State equivalent of an emergency appeal, submitted to the Georgia Supreme Court. On Tuesday, all nine justices denied the bid.
State and national Republicans aimed to salvage the rules with a two-pronged legal effort. The petition asked for both an emergency supersedeas writ and an expedited appeal. The former request would have kept the shelved rules in place pending appeal; the latter would have expedited the otherwise lengthy appeals process. In turning down both requests, the justices put any further discussion of the stricken rules far beyond November 2024 — and well into next year.
“Upon consideration of the Petitioners’ motions as well the briefs filed by the parties and the amicus curiae, the Petitioners’ Motion for Emergency Supersedeas is DENIED,” the terse, half-page order reads. “The Petitioners’ Motion for an Expedited Appeal is also DENIED. When the appeal is docketed in this Court, it will proceed in the ordinary course.”
Last week, a lower court in Fulton County put the kibosh on the seven rules promulgated by the State Election Board (SEB) after a bevy of Democratic Party-affiliated organizations and two Georgia voters sued for an injunction. Ruling in the plaintiffs’ favor, the court invalidated each of those would-be rules as “unenforceable” as well as “illegal, unconstitutional and void.”
The court found each rule was issued by the GOP-controlled board — whose majority is affiliated with former President Donald Trump — in excess of their “delegated authority” as an administrative agency.
“[T]he Georgia Constitution provides that only the General Assembly may provide for a law for a procedure whereby returns of all elections by the people are made to the Secretary of State,” Fulton County Superior Court Judge Thomas Cox wrote in that earlier order. “The Election Code accomplishes this and the SEB has no authority to legislate otherwise.”
In early September, the SEB passed the first of many controversial new rules by a 3-2 vote. Three members of the board were endorsed by Trump. One member is a Democrat. Another member of the board is not affiliated with a political party. All three Trump-endorsed members voted for the new rules in each instance.
The first suite of rules would have allowed for open-ended investigations into the tabulation, canvassing, and certification of results. Critics complained that these rules were passed in order to effectuate delay and would have been a recipe for chaos.
In late September, the SEB passed another suite of rules. Chief among those new — and newly-objected to — directives was a hand-counting rule. That rule would have mandated 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.
Under the rule, the process must be carried out three times — by three separate officials. The timeline for completion would have varied depending on the number of ballots. Again, critics cried foul — asserting that the rule was engineered to sew disorder and slow ballot counts down to a crawl. The hand-count rule was the first to go.
On Oct. 16, a different Fulton County judge issued a temporary pause on the hand-counting rule, while noting that the hand count is not actually about counting votes but the total number of ballots. In that initial ruling, issued by Fulton County Superior Court Judge Robert McBurney, the court opined that such a rule might actually be valid and worthwhile — but cannot stand for now because it was only issued mere weeks before the upcoming election.
“[S]tate and local election officials need substantial time to plan for elections,” McBurney wrote in the order, quoting U.S. Supreme Court Justice Brett Kavanaugh — 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.”
The nearness of the election, however, was not an issue the Cox court considered when barring the new election rules.
Rather, the court found each of the new rules was “unsupported by” any part of Georgia’s election statutes. And, in each instance, the judge found the rules “are in fact contrary to the Election Code.” Five of the seven rules were found to be “inconsistent with” election law.
One salve for the GOP petitioners who asked the Georgia Supreme Court, albeit unsuccessfully, to intervene is that the high court’s denial was not based on the merits. That is, there was no discussion about the actual law. Instead, the procedural denial simply kicks the can down the road — if the ruling is appealed in a normal fashion.
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