Georgia Supreme Court considering if judge was right to block State Election Board rules

ATLANTA - It's now up to Georgia's highest court to decide whether a lower court judge ruled correctly when he blocked seven rules passed by the controversial State Election Board just before 2024's general election.

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. In mid-October, Fulton County Superior Court Judge Thomas Cox ruled that seven of the rules were "illegal, unconstitutional and void."

The Georgia Supreme Court heard arguments on Wednesday on Cox's ruling, which lawyers for the state have argued failed to exercise appropriate judicial restraint.

MORE: Georgia Supreme Court denies GOP attempt to reinstate State Election Board rules

The backstory:

The three-person Republican majority on the State Election Board, which was praised by former President Donald Trump during a rally in Atlanta in August, voted to adopt multiple rules in August and September over the objections of the board’s lone Democrat and the nonpartisan chair. There have been at least half a dozen lawsuits filed in response, each challenging one or more of those rules. Given the tight timeframe with the November general election just weeks away, judges have acted quickly to set and hold hearings in those cases.

While some prominent Republicans in Georgia, including Secretary of State Brad Raffensperger, criticized the flurry of last-minute rules the State Election Board introduced, the state and national Republican parties have been supportive of the board - saying that the rules promote transparency and accountability in the state’s elections.

Cox’s ruling came in a lawsuit filed by Eternal Vigilance Action, an organization founded and led by former state Rep. Scot Turner, a Republican. The suit argued that the State Election Board overstepped its authority in adopting the seven rules. In addition to invalidating the rules, he ordered the State Election Board to immediately inform all state and local election officials that the rules are void and not to be followed.

Dig deeper:

One new rule that Cox blocked 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.

He also invalidated two rules passed by the State Election Board in August that had 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."

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.
• Require daily public updates of the number of votes cast during early voting.

What they're saying:

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."

The other side:

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.

What's next:

The Georgia Supreme Court is expected to make their ruling within the next several months.