Judge Robert McBurney of Fulton County Superior Court said that county election boards are required by law to certify elections. He did not agree with a request by a county co-superintendent of elections to delay or refuse to finalize results because they thought there might be fraud or a discount.
Julie Adams, a member of the Fulton County election board who voted against certifying the most recent primary election in Fulton County, initially filed the lawsuit that prompted McBurney’s response.
While writing the order, McBurney talked about what is happening in Georgia right now. He said that the state’s election rules and codes are supposed to make sure that elections are fair and run smoothly, but some election officials are working to stop that from happening.
“However, the certainty of the electoral process that these laws have long brought to Georgia’s voters has begun to unravel as key participants in the State’s election management system have increasingly sought to impose their own rules and approaches that are either inconsistent with or flatly contrary to the letter of these laws,” McBurney said in the court order.
“According to McBurney’s order on Tuesday morning, Georgia law requires that Adams and her fellow board members certify election results, saying specifically that the state’s constitution does not give them the legal right to refuse. Referring to board members as ‘accountants,’ for elections, among other things, McBurney wrote in his order that ‘much of what they do is left to their broad, reasoned discretion,’” according to Sam Sachs of WSBTV.
Some responsibilities, like certifying the results of an election, can’t be argued over or interpreted in different ways.
“After the close of the polls on the day of an election, the superintendent ‘shall…publicly commence the computation and canvassing of the returns,’” McBurney said in the order.
However, the judge said that board members and poll superintendents had to do some math and compare the returns with the number of voters and electors in the precinct.
In other words, board members have to check that the number of votes cast matches the number of voters in each area.
He also said, “This is not an optional task; the superintendent is required by law to do this cross-checking.”
As McBurney said in the court order, if the numbers don’t add up, or if the result makes no sense (for example, more votes than voters), the superintendent must look into the difference (also called a “palpable error”). She can’t just ignore it.
As part of this, each absentee ballot must be added to the return from the precinct for the voter it was sent for, and the “superintendent is not free to ignore the absentee ballots although she may count them any way she wishes,” with some freedom.
Within a certain amount of time, McBurney also said in the order that superintendents of elections must do certifications. Georgia law says that licenses must be given out by 5 p.m. on the Monday after an election.
To be on time for the Nov. 5 presidential election, the approval has to be turned in by Nov. 11 at 5 p.m.
“There are no exceptions,” McBurney said, underscoring his order’s point of the legal requirements in Georgia to certify election results, saying “this conclusion is not profound.”
“Election superintendents in Georgia have a mandatory fixed obligation to certify election results. What may confuse the issue for some superintendents is that so much of their role is indeed discretionary. But the existence of discretion in some roles does not guarantee its existence in all roles,” the judge said.
In sum, McBurney said the court declared:
An election superintendent’s role in certifying election results pursuant to O.C.G.A. § 21-2-493 is ministerial, even though many other aspects of her position are discretionary.
Regardless of the characterization of the election superintendent’s role in certifying election results, that certification pursuant to O.C.G.A. § 21-2- 493 is mandatory.
Consequently, 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.
If, in performing her responsibility set forth in O.C.G.A. § 21-2-70(8) “to inspect systematically and thoroughly the conduct of primaries and elections in the several precincts of his or her county to the end that primaries and elections may be honestly, efficiently, and uniformly conducted,” an election superintendent (or member of a board of elections and registration) determines a need for election information from the staff of the superintendent’s office (or of the board), that information, if not protected from disclosure by law, regulation, or rule, should be promptly provided. See Ga. Comp. R. & Regs. Rule 183-1-12- .12(f)(6). However, any delay in receiving such information is not a basis for refusing to certify the election results or abstaining from doing so. See Declaration (3) above.
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