'No authority to legislate': Judge slaps down multiple new election rules put in place by Trump allies in Georgia as 'unconstitutional' administrative agency overreach

For the second time this week, a judge in Fulton County, Georgia has pumped the brakes on recent changes to Peach State election rules.

Late Wednesday, Fulton County Superior Court Judge Thomas Cox issued an 11-page order invalidating seven rules promulgated by the State Election Board as “unenforceable 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,” the judge’s order reads. “The Election Code accomplishes this and the SEB has no authority to legislate otherwise.”

But it was not just the agency’s lack of authority that rendered the GOP-authored suite of rules — passed in late September — a nullity.

The court also found each of the new rules was “unsupported by” any part of Georgia’s actual 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.

And, on a more basic level, the court also found that each of those since-shelved rules violated a section of the U.S. Constitution which provides that “the times, places and manners of holding an election for U.S. Senators and Representatives shall be prescribed in each state by the Legislature thereof.”

“This federal constitutional duty may not be delegated by a state legislature to any other state body,” Cox observed. “[T]he SEB’s rules affecting the time, place and manner of the as to the election of U.S. Representatives in the coming election are unconstitutional and void.”

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The court briefly analyzed each rule.

The first rule would have mandated that election officials “attest, after reasonable inquiry that the tabulation and canvassing of the election are complete and accurate and that the results are a true and accurate accounting of all votes cast in that election.” Cox determined the “reasonable inquiry” aspect of the rule did not come from Georgia law and “adds an additional and undefined step into the certification process.”

The second rule would have allowed county election boards to give any other county board member access to “all election related documentation created during the conduct of elections prior to certification results.” Cox found this rule “creates a statutorily unbounded scope under which superintendents can consider unauthorized materials when tabulating, canvassing, and certifying election results.”

The third rule mandates that a person delivering an absentee ballot provide a “signature and photo ID.” Cox said this rule directly conflicts with two separate laws that allow a person’s immediate family or “caregiver” to deliver a ballot — both of which say nothing about signatures or identification.

The fourth rule, as described by the court, “demands video surveillance and recording of authorized drop boxes after the polls close” and “further provides for the removal and closure of any drop boxes not so monitored.” Cox noted that Georgia law “provides for certain monitoring of drop box locations, however it does not require video monitoring and it does not allow for the removal or closure of authorized drop boxes that are not video monitored.” Furthermore, the court noted, the legislature “specifically declined to adopt the video surveillance requirement.”

The fifth rule expands mandatory poll watching areas to include “provisional ballot adjudication of ballots, closing of advanced voting equipment, verification and processing of mail in ballots, memory card transferring, regional or satellite check in centers.” Cox notes that this expansion comes “despite the Election Code specifically delineating mandatory poll watching areas.”

The sixth rule, in the court’s words, “sets forth additional requirements for reporting absentee ballot information by the county board of registrars” and creates a direct conflict by mandating daily reporting, by partisan and nonpartisan votes. Meanwhile, the law only requires business day reporting absent party identification. Cox says the new rule “impermissibly expands upon and contradicts what is outlined in the Election Code.”

The seventh rule, again in the court’s words, “requires poll managers and poll officers to engage in a cumbersome process of ballot hand-counting after the close of polls on election day and prior to transmitting the ballots to the superintendents for certification.” Cox notes that this rule “is nowhere authorized by the General Assembly in the Election Code” and “vastly expands the authority and obligations of poll officials in preparing ballots.”

Earlier this week , a separate judge in the same county issued a temporary pause on the controversial hand-counting rule, while noting that the hand count is not actually about counting votes but the total number of ballots. That earlier ruling, issued by Fulton County Superior Court Judge Robert McBurney, opines 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.

In issuing the requested injunction, the Cox court barred the state — and the election board in particular — from “enforcing, requiring compliance with, or otherwise utilizing” the rules in question.

In another section of the order, Cox directs the SEB itself to take remedial action by “immediately” removing the rules from “their roles and official reporting” and by informing “all state and local election officials that these rules are void and are not to be followed” using the “same mechanisms” they used to issue the rules in the first place.

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