On Tuesday, the Georgia State Election Board and state Republicans will be in court as they oppose a Democratic effort to have a judge mandate that county election boards certify the results of the upcoming elections by the deadline set for November under Georgia law.

The Democratic National Committee along with the Democratic Party of Georgia has taken legal action against the election board following the introduction of two rules in August that expand the powers and responsibilities of local election officials prior to the certification deadline on November 12. While these rules do not alter the deadline, Democrats worry that local officials might use these new rules to delay results certification.

“According to the creators of these rules, they imply that the certification of election outcomes by county boards is optional and open to various inquiries that could hinder timely certification,” stated the Democrats in their arguments leading up to the trial.

Democrats are requesting Judge Robert C. I. McBurney to issue a “declaratory judgment,” which would clarify before the election that state certification deadlines must be adhered to and that the new rules do not alter this requirement. McBurney is presiding over a bench trial, where he will evaluate the case without a jury.

What Are the New Rules?

One of the rules in question mandates that election officials perform a “reasonable inquiry” into the accuracy of election results before they can certify them, but it does not specify what constitutes a “reasonable inquiry.” The second rule allows individual members of the county election boards to review documents created during the election process.

These rules were approved by three members of the state election board after former President Donald Trump praised them by name during an Atlanta campaign rally on August 3, calling them “pit bulls fighting for honesty, transparency, and victory.” The other two board members, one being a Democrat and the board chair appointed by Republican Governor Brian Kemp, expressed objections but were outvoted.

These two rules are part of a larger set of last-minute amendments to the November election regulations made by the same trio of board members. These changes have raised concerns across party lines, as many fear they could delay the reporting of election outcomes and cast doubt on the legitimacy of the election.

Georgia’s Republican Secretary of State Brad Raffensperger, who famously denied Trump’s request to “find” nearly 12,000 votes to overturn his 2020 election loss in the state, referred to the board’s recent changes to certification requirements as “a mess” in comments to YSL News.

On Monday, Democrats also filed a lawsuit to prevent the implementation of another rule that Georgia’s Republican Attorney General Chris Carr indicated may be unlawful. This rule, enacted on September 20, mandates that numerous voting precincts across Georgia manually count ballots and ensure that these counts match the totals produced by electronic voting machines.

What Is the Election Board’s Position?

In its legal response to McBurney, the election board concurred with Democrats that certifying county election results is a mandatory duty.

“Petitioners are seeking the Court’s declaration that affirms what is already established in Georgia law: that certification is a required action that must occur at the county level by a specific date,” stated the election board.

However, despite this agreement with the Democrats, the board is contesting the Democrats’ lawsuit aimed at obtaining a judicial clarification. The board claims that the lawsuit should be dismissed on the grounds that it is premature, arguing that a court ruling wouldn’t be appropriate where the dispute is based on potential future scenarios.

Additionally, the board argues that it is protected from the lawsuit under the principle of sovereign immunity, which shields the government from legal action without its permission.

Georgia GOP’s Argument

The Republican National Committee and the Georgia Republican Party received permission from Judge McBurney to join the case and present their own arguments.

In their court filing before the trial, they attempted to flip the Democrats’ concerns about introducing chaos into the election process, stating that the lawsuit itself is the actual risk.

They argued that blocking the new rules right before the election would create confusion created by the court. “It is the responsibility of lawmakers—not judges—to make policy decisions on the ground before and during an election,” they claimed.