🧵via Katie Phang: 1/…
REMINDER:
Today is the bench trial (meaning just the judge and no jury) over whether the #Georgia State Elections Board must certify the county election boards’ election results by the November deadline as set forth under Georgia law.
Laffy
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in reply to Laffy • • •4/ Via Anna Bower, live posting this:
McBurney: Does anyone disagree that the State Election Board lacks the power to change the mandatory nature of certification?
No one disagrees.
McBurney: So, in that case, we're not arguing about whether there must be certification and whether it must be done by the statutory deadline.
Laffy
in reply to Laffy • • •5/ Livestream for what the court has labeled, "Judge McBurney's Busy Day":
youtube.com/live/qKWNI_aKFnI?f…
Judge McBurney's Busy Day - Abhiraman v. State Election Board AND State v. Parks & Phillips
YouTubeLaffy
in reply to Laffy • • •6/ Bower’s thread:
McBurney: So, in that case, we're not arguing about whether there must be certification and whether it must be done by the statutory deadline.
If that's the case, McBurney continues, then what exactly is the legal uncertainty here? Since there seems to be agreement on the mandatory nature of certification, he's not sure what there is for him to declare. Plaintiffs say they'll address his concerns during argument.
Laffy
in reply to Laffy • • •7/ Bower:
Counsel for the plaintiffs are now addressing standing/legal uncertainty issue. They argue that the certif rules inject uncertainty into process, leading county officials to believe that they can't certify results. That could infringe/threaten rights of voters.
Plaintiffs argue a county official cd misinterpret rules absent unambig declaration from court that clarifies legal duties of county officials. Absent guidance from court, that would have a negative impact on rights of voters.
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in reply to Laffy • • •9/ What McBurney means by this is the examination rule doesn't mandate a bd member to do anything before certifying. So he's not sure how a bd member could pt to that as reason not to certify.
Thorpe, for plaintiffs, explains that the rule might result in a bd member asking for voluminous materials. If they don't receive the materials before certifying, that could be used as justification to refuse to certify.
McBurney: But all of the parties to this litigation agree that certific is mandatory
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in reply to Laffy • • •11/ McBurney: But isn't the "reasonable inquiry" rule limited by whatever the board can do before the deadline? They can reasonably inquire, but it's "wheels up" when the certification deadline comes around.
Help me understand this hypo. I'm on the board, my colleague refuses to certify. Why does the decision of another board member create uncertainty for me? I know what I have to do in that circumstance -- I have to certify. I have to do my job.
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in reply to Laffy • • •12/ Counsel for the plaintiffs explains that the board has a collective duty to certify. So if a majority of the board refuses to certify, then it creates uncertainty for the minority who are trying to comply w/ their legal duties.
The plaintiffs are discussing cases related to the legal standing issue. Standing -- particularly, the question of whether the rules create sufficient uncertainty to allow for a declaratory judgement -- seems to be McBurney's biggest concern thus far.
Laffy
in reply to Laffy • • •13/ Now counsel for the DNC is addressing the principle in Purcell, a federal case about courts avoiding confusion by making last minute changes to election laws.
McBurney observes that rules adopted so close to the election seem to violate the principles that animate Purcell.
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in reply to Laffy • • •14/ Up now: Elizabeth Young on behalf of State Election Board. She starts by saying that nobody is arguing that these rules were meant to be or can be read to suggest that the duty to certify has been called into question
Young: There is a presumption that board members will fulfil legal duties in good faith.
McBurney: Yes, but I live in a county in which there is a real life example of a public official who refused to certify. How do I balance presumption of good faith w/ real life examples?
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in reply to Laffy • • •18/ McBurney: I'm wondering if the board has a perspective on how to clarify those issues.
Young: To the extent there is any question about these rules, it should be resolved by looking to the statute. But, yes, officials have to certify. So, the opinion of the court would effectively say yes the law -- the statute -- means what it says. But that's not really a proper use of the statutory remedy/declaratory judgement.
Laffy
in reply to Laffy • • •19/ Now up is Baxter Drennon on behalf of Republican National Committee, which intervened in the case in support of the State Election Board's certification rules.
Drennon: I have not heard petitioners cite one aspect of the rules that are inconsistent law which is a requirement for this ct to provide guidance. Plaintiffs concerns are hypothetical
Drennon makes argument based on Purcell, arguing principles in Purcell mean that a ct shdn't step in here, given that it's so close to the election
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in reply to Laffy • • •20/ McBurney: New rules seem to pop up every 20 minutes. It reaches a point in which, under your Purcell argument, new rules would not be reviewable by a court even if they are unconstitutional, unlawful, etc.
Drennon: I see the concern but that's not what we have here.
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in reply to Laffy • • •21/ Thorpe is talking on behalf of petitioners again. He addresses the ques of whether the problem here is better addressed by a writ of mandamus after a board refuses to certify
Thorpe: The writ of mandamus route is definitively worse. A plaintiff would have to bring a judicial action on the night of Nov. 12 (the deadline for counties to certify). What we would need then is a clear, judicial pronouncement that the law requires X. That's what we're seeking, bc we may need to use it on Nov 12
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in reply to Laffy • • •22/ McBurney: Appreciate the input from all of you. I have to take a verdict in a criminal case now, so I'm going to ask you all to step away from the tables.
After the verdict in the criminal case, McBurney will hold another hearing on a different suit related to certification.
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in reply to Laffy • • •24/ It's pretty clear from this morning's hearing that McBurney thinks county election officials have a mandatory duty to certify by the statutory deadline. Rightly so. As I wrote last week, the outcome on that issue really is not a close call.
The big question is whether he'll issue a declaration to that effect ahead of the election. McBurney at times seemed to think that there are justiciability issues that might prevent him from doing so, because...
Laffy
in reply to Laffy • • •25/ ...(a) the rules on their face aren't inconsistent with the duty to certify and (b) we're not at a point in which a county board member has actually invoked either rule as pretext to refuse to certify.
If he doesn't clarify the legal effect of the rules, there are still ways to compel county officials to certify should they refuse to do so come November. The remedy is called a writ of mandamus, which courts issue to force public officials to comply with their legal duties.
Laffy
in reply to Laffy • • •26. If the mandamus route is necessary, there should be plenty of time to compel counties to certify. Mandamus actions are designed to move particularly quickly.
lawfaremedia.org/article/will-…
Will Georgia's New Election Rules Allow Trump to Steal the Presidency?
DefaultNicole Parsons
in reply to Laffy • • •Why do Republicans focus their election shenanigans so much on Georgia?
Yes, it's a purple state swinging blue thanks to Stacey Abrams's work, but why does Georgia seem to get targeted more for election interference by the GOP?
Donor schisms?
ajc.com/politics/trumps-high-d…
GOP schisms?
voanews.com/a/trump-again-tear…
Kompromat?
washingtonpost.com/politics/20…
Every swing state?
cnn.com/2024/09/20/politics/at…
A 52 seat Senate GOP majority will be every bit awful as a Trump win.
axios.com/2024/09/24/senate-re…
Trump again tears into Georgia's Republican governor as he campaigns in state
Associated Press (Voice of America (VOA News))Nicole Parsons reshared this.