FULTON COUNTY, Ga. — Fulton County Superior Court Judge Robert McBurney ruled that county election boards are required by law to certify elections, rejecting an appeal by a sitting county co-superintendent of elections to delay or refuse finalizing results based on suspicion of fraud or a discount.
The lawsuit that brought McBurney’s response was initially filed by Fulton County election board member Julie Adams, who voted against certifying the most recent primary election in Fulton County.
While writing the order, McBurney described the situation that is currently playing out in Georgia, saying that Georgia’s election codes and laws are set to ensure elections are fair and orderly, but that some election officials are working against that outcome.
“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.
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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.”
However, other duties, such as certification of an election’s results, is not a duty that is open for debate or interpretation.
“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.
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The judge noted that the computation required of board members and election superintendents must be a comparison of returns with the number of electors in the precinct and the number of votes cast.
More simply put, board members have to make sure the numbers match up between votes cast and how many voters are in a given precinct.
He added that “this is not an optional task: the superintendent has a statutory obligation to engage in this cross-checking.”
If numbers don’t match up, “if there is a non-sensical result — e.g., more votes than voters — the superintendent must investigate the discrepancy (a/k/a ‘palpable error’); she is not free to ignore it,” McBurney said in the court order.
This includes ensuring each absentee ballot is added to the return received from the precinct for the absentee voter it’s submitted for, and that the “superintendent is not free to ignore the absentee ballots although she may count them any way she wishes,” with some discretion.
McBurney also said in the order that superintendents of elections are required to perform certifications within a certain time. By Georgia law, certifications must be provided no later than 5 p.m. the Monday after an election.
For this year’s presidential election on Nov. 5, that means the certification must be delivered 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.15
- 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.
Read the full court order below:
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