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ATLANTA — With less than three weeks to go before Election Day, the fate of new rules that could impact the certification of vote tallies in the critical swing state of Georgia is still in flux as judges wade through court challenges.
The State Election Board, which is controlled by three Republicans endorsed by former President Donald Trump, has passed several 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 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.
Early in-person voting began Tuesday and broke early voting records with 310,960 ballots cast.
Here are some things to know about the new rules:
One new rule that a judge put on hold 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. If a scanner has more than 750 ballots inside at the end of voting, the poll manager could wait to begin the count until the following day.
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 they did not have enough time to adequately train poll workers after the rule’s adoption in late September.
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 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. The State Election Board could appeal.
In a separate ruling, McBurney said county election officials must certify results by the deadline provided in state law. That ruling stemmed from a lawsuit by a Republican Fulton County election board member who asked the judge to declare that certification was a discretionary task.
McBurney wrote that Georgia law does not give county election officials the authority to determine that fraud has occurred or what should be done about it, so they cannot exclude ballots from certification on that basis. If fraud or errors are suspected, that can be referred to a district attorney for prosecution or can be the basis of an election challenge after certification.
The State Election Board in August passed two rules having 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 say those rules are necessary to ensure the accuracy of the vote totals before county election officials sign off on them. Critics worry they could be used to delay or deny certification.
McBurney has not yet ruled on a challenge to those two rules filed by the state and national Democratic party organizations.
One provides expanded access for poll watchers in tabulation centers. Supporters say it would increase transparency, while critics worry it could lead to harassment or interference with poll workers.
Others have to do with public posting requirements for election-related information. For example, one requires county election officials to post the number of people who have voted and how they voted — in person or by absentee ballot — each day during early voting.
County election boards in at least three counties — Cobb, DeKalb and Muscogee — are challenging some rules. Individual county election officials also have sued.
The Democratic National Committee and the Democratic Party of Georgia have filed two lawsuits and joined some others. Eternal Vigilance Action, a group founded and led by former Republican state Rep. Scot Turner, has 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 voters 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 appear to conflict with existing law.
