ATLANTA – A Republican-led group is challenging Georgia's new requirement that poll workers count the total number of ballots by hand, saying it's another example of the State Election Board overstepping its legal authority.
Eternal Vigilance Action amended its existing lawsuit on Wednesday to also challenge that rule adopted Friday by the board.
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The group, founded and led by former state Rep. Scot Turner, a Republican, was already suing the board over rules that it earlier adopted on certifying votes, a step that finalizes results. One of those rules provides for an undefined “reasonable inquiry” before county election officials certify while another allows county election officials “to examine all election related documentation created during the conduct of elections.”
Turner's lawsuit is scheduled for an Oct. 4 hearing before Fulton County Superior Court Judge Thomas Cox. Eternal Vigilance Action is asking Cox to overturn the rules, or at least put them on hold until after November's presidential election.
The new ballot counting rule and two others having to do with county certification of vote totals were passed by a majority on the board made up of three Republican partisans who have been praised by former President Donald Trump. The rules have raised alarms among Democrats, voting rights groups and others who fear they could be used to cause chaos and undermine confidence in the election results in this crucial swing state if Trump loses to Democratic Vice President Kamala Harris in November.
Turner, however, said in a telephone interview that his lawsuit is motivated by his view of constitutional principles, saying the board is part of the executive branch that is intruding on powers reserved for legislators.
“They are not an elected body," Turner said the State Election Board. "They are not accountable to voters, therefore they should not have lawmaking authority.”
The new ballot counting rule requires that the number of ballots — not the number of votes — be counted at each polling place by three separate poll workers until all three counts are the same. If a scanner has more than 750 ballots inside at the end of voting, the poll manager can decide to begin the count the following day.
Georgia voters make selections on a touchscreen voting machine that prints out a paper ballot that includes a human-readable list of the voter’s choices as well as a QR code that is read by a scanner to tally the votes.
Proponents say the rule is needed to ensure the number of paper ballots matches the totals recorded on scanners, check-in computers and voting machines. The three workers will have to count the ballots in piles of 50, and the poll manager needs to explain and fix, if possible, any discrepancies, as well as document them.
In a memo sent the day before the election board voted on the ballot counting rule, Attorney General Chris Carr’s office said the rule is “not tethered to any statute” and is “likely the precise kind of impermissible legislation that agencies cannot do.” The memo from the Republican Carr's office warned that any rule that goes beyond the board’s authority is unlikely to survive a legal challenge.
Turner said he viewed his lawsuit as putting Carr's arguments before a judge. His amended lawsuit also adds challenges to rules that the board adopted to require daily public updates of the number of votes cast during early voting, to potentially allow more partisan poll watchers to observe the tabulation of votes.
Republican Secretary of State Brad Raffensperger and an association of county election officials had also cautioned the board against passing the rule. They said it could delay election night reporting of vote totals and could weaken protections on the chain of custody of ballots.
Results wouldn't be delayed if poll workers send the memory cards that record the votes in machines to the central tabulation location before finishing the hand tally.
Another lawsuit from state and national Democratic groups is also challenging the two certification rules. A judge has set a Tuesday bench trial in the Democrats’ lawsuit.
The State Election Board has been besieged by critics in recent months as it considers new rules, many of them proposed by Trump allies that opponents say could erode public confidence in the election results.
“They are providing bonfire material for conspiracy theorists to attack the legitimacy of elections based on the complaints of a very noisy minority of Republican voters," Turner said.