‘Litigation minefield’: Georgia Republicans readying post-election legal strategy

Georgia Republicans are already prepping for a potential “litigation minefield” after Election Day.

“Well, of course, you have to be prepared, right, in the case of a close election to look at the recounts,” Georgia GOP Chairman Josh McKoon said.

The former Peach State lawmaker spoke with Digital on Thursday after back-to-back legal setbacks for the GOP-controlled State Elections Board (SEB).

On Tuesday, Fulton County Superior Court Judge Robert McBurney temporarily blocked a new rule that would have required Georgia precinct Election Day ballots to be counted by hand by three county officials after being machine tabulated, to ensure the totals matched.

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The next day, Fulton County Superior Court Judge Thomas A. Cox, Jr. ruled that measure and several other provisions passed by the SEB to be “illegal, unconstitutional, and void.”

“We think he’s absolutely wrong with regard to the hand-count rule. We intend to appeal that decision,” McKoon said of the McBurney ruling, while praising him for a separate decision acknowledging “election board members are entitled to election-related information” ahead of the certification process.

He said the Georgia GOP had already filed an emergency appeal for Cox’s ruling.

“His decision was wrongheaded. I think it lacked any rational legal basis,” McKoon said. “If his decision were upheld, it would severely curtail the ability of the state elections board to regulate our elections and to do the job.”

Democratic critics of the new SEB rules accused the Republican members who voted for them of trying to sow doubt and chaos in Georgia’s election process. GOP skeptics, including State Secretary Brad Raffensperger, have argued their implementation is unworkable this close to the election.

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However, Republican Party officials like McKoon say such guardrails are necessary to ensure voter confidence – and that not having them in place would be fomenting uncertainty.

“These rules are designed to increase public confidence and reduce sort of this post-election chaos around a potential election contest or a recount. And so, if we don’t have these rules in place, it increases the likelihood in a close election of the kind of litigation minefield that we witnessed in 2020,” McKoon said. “And nobody wants that.”

Fulton County Superior Court Judge Robert McBurney temporarily blocked the hand-count ballot rule. (AP Photo/John Bazemore, File)

He suggested Republicans were getting ready for that possibility, however.

“Now, I believe President Trump is going to win Georgia. I think he’s going to win by a margin so large that we’re not going to be in a litigation mode,” McKoon said. “But obviously, you work for the best outcome, but prepare for the worst.”

“So we’ve got our legal team in place. We’re certainly prepared for a close election to deal with those post-election legal processes you go through. So we have prepared for that, and we’re ready for that if that happens.”

Litigation in battleground states, both before and after an election, is not a new phenomenon for either party. Georgia voters stunned election watchers in 2020, when the traditionally red state went for President Biden by less than 1%. Though no findings of fraud were made by Georgia officials or the courts, allies of former President Donald Trump questioned the validity of the results and vowed to close what they saw as exploitable gaps in the electoral system.

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Democrats have accused the GOP of trying to engineer chaos in their favor via the legal system, citing the lack of proven instances of fraud.

Vice President Kamala Harris is also fighting hard for Georgia’s vote. (AP/Jacquelyn Martin)

In his Tuesday ruling, McBurney temporarily blocked implementation of the hand-count ballot rule after a lawsuit by the Cobb County Board of Elections. He ruled that the lack of plans for its implementation would likely do more harm than good at ensuring smooth elections, writing “the timing of its passage make implementation now quite wrong.”

Cox’s ruling also invalidates that measure, while also invalidating a rule directing county officials to conduct a “reasonable inquiry” before certifying election results and giving them the ability “to examine all election related documentation created during the conduct of elections.”

Additionally, Cox blocked new signature and photo ID requirements for people dropping off absentee ballots for others.

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In the second case, civil rights groups and some current and former Republican state officials argued the SEB did not have the constitutional right to implement such measures.

Defendants, which included the Georgia Republican Party, unsuccessfully lobbied that the state’s General Assembly gave the SEB the scope to craft such rules.

The rules were passed last month in a 3-2 vote by Trump-aligned Republicans on the elections board.