CARTERSVILLE, Ga. (AP) — Georgia’s highest court heard arguments Wednesday on whether a lower court judge ruled correctly when he blocked seven rules passed by the State Election Board just before last year’s general election and declared that the board didn’t have the authority to pass them.
The board passed a slate of new rules in August and September that mostly had to do with processes after ballots are cast, spawning a flurry of lawsuits. Fulton County Superior Court Judge Thomas Cox ruled in mid-October that seven of the rules were “illegal, unconstitutional and void.”
Cox failed to exercise appropriate judicial restraint when he issued his “consequential, far-reaching” order that implicates every rule created by the State Election Board and calls into question the existence of the board and other state agencies with similar enabling legislation, lawyers for the state argued in a court filing. Critics of the rules say Cox got it right.
President Donald Trump narrowly lost the state in 2020 and he alleged without evidence that election fraud had cost him victory. Three Trump-endorsed Republicans hold the majority on the five-person State Election Board.
Democrats and voting rights groups had worried Trump allies would use the rules to cast doubt on results if he lost the crucial swing state again in November’s presidential election. Trump beat Democratic former Vice President Kamala Harris to win Georgia.
Republican Secretary of State Brad Raffensperger and many county election officials advised against the addition of new rules so close to the election. Attorney General Chris Carr, also a Republican, warned in a memo before the board passed the rules that some appeared to conflict with existing law.
Cox’s ruling stemmed from a lawsuit filed against the state by Eternal Vigilance Action, which was founded and led by former state Rep. Scot Turner, a Republican. The suit argued that the State Election Board had overstepped its authority. The Republican National Committee and the Georgia Republican Party joined the litigation to defend what they called commonsense rules to increase transparency and the integrity of elections.
Bryan Tyson, a lawyer for the state argued that the organization and individuals who challenged the rules lacked standing to sue because there was no specific harm suffered and no concrete imminent injury, that they “do not have a violation of their own legal rights.” He argued that the justices should reverse the lower court ruling for that reason alone without even addressing the merits of their arguments.
Cox held that while the General Assembly can delegate some rulemaking authority to executive agencies if the appropriate guidelines are in place to constrain it, that was not the case here so the State Election Board lacked the authority to enact the rules.
But lawyers for the state wrote in a court filing that the General Assembly provided sufficient guidelines and that the board “cannot itself make laws, but it is authorized to fill in the blanks and administer the laws the Legislature has made.”
Lawyers for Eternal Vigilance argue that an executive agency like the State Election Board cannot enact rules that are inconsistent with or unauthorized by state law. The state Constitution doesn’t allow an executive agency to legislate and doesn’t allow the Legislature to delegate legislative authority to an executive agency, they wrote in filings.
The board “is acting in violation of the separation of powers doctrine by engaging in legislative activity,” lawyer Chris Anulewicz told the justices.
The court generally rules within several months of a hearing.
Three of the rules that Cox invalidated received a lot of attention prior to his ruling — one that requires that the number of ballots be hand-counted after the close of polls and two that had to do with the certification of election results.
The other rules Cox said are illegal and unconstitutional are ones that: require someone delivering an absentee ballot in person to provide a signature and photo ID; demand video surveillance and recording of ballot drop boxes after polls close during early voting; expand the mandatory designated areas where partisan poll watchers can stand at tabulation centers; and require daily public updates of the number of votes cast during early voting.
