Election disbelievers are trying a novel legal maneuver to inspect Georgia ballots from last year’s presidential election: only sue Republicans who won’t stand in their way.
Plaintiffs in a lawsuit seeking to review Fulton County absentee ballots asked a judge to dismiss the three Democrats who were on the county’s election board last year, leaving two Republicans as defendants who support the investigation.
If successful, the strategy would remove any opposition to skeptics’ efforts to back up an unflappable belief that the election was stolen from Republican Donald Trump, who lost to Democrat Joe Biden by 12,000 votes in Georgia and by 243,000 votes in Fulton.
The plaintiffs argue that if they can see original paper ballots, they’ll be able to find counterfeits — or at least raise further suspicions about the election, similar to a recently concluded ballot review in Arizona that ended up adding to Biden’s margin of victory.
“They want to proceed without an adversary challenging the legitimacy of the complaints,” states a court filing by three Democrats who have served on Fulton’s elections board. “This proceeding has devolved into nothing other than political theatrics.”
Eleven months since Election Day, multiple investigations and recounts have failed to find evidence of any intentional effort to tamper with election outcomes. Republican officials, including Secretary of State Brad Raffensperger and Trump’s attorney general, William Barr, have said there’s no evidence of widespread fraud.
Credit: Alyssa Pointer
Credit: Alyssa Pointer
Ballots in Georgia’s presidential election were counted three times, by machine and by hand, each showing a similar margin of victory for Biden.
Still, the lawsuit seeking a physical review of Fulton’s 147,000 absentee ballots remains alive after other courts have dismissed a series of legal challenges attempting to reverse the election outcome.
The case is based on sworn statements from several Republicans who participated in the state’s audit last November and said they observed “pristine” ballots, with no folds and perfectly filled-in ovals. The secretary of state’s office has said it reviewed those ballot batches but found no signs of counterfeits or irregularities.
While the judge considers motions, he asked election investigators and the GBI this month to provide an update on their investigations into allegations about counterfeit ballots.
The plaintiffs don’t want the whole case dismissed — just the Democrats who oppose them so they can proceed with the ballot inspection. Superior Court Judge Brian Amero had ordered Fulton to unseal its ballots in May, but he put that order on hold after motions to dismiss the case were filed.
“They (Democrats on the elections board) should be dropped as parties because their continued involvement interferes with the implementation of the court’s May 21, 2021, order to unseal (the ballots),” states a plaintiffs motion to dismiss.
It’s unlikely the legal tactic will be successful, said Bryan Sells, an election law attorney who isn’t involved in the Fulton case.
Judges usually disfavor “collusive” lawsuits, in which plaintiffs try to manipulate the legal system by suing their allies, Sells said.
Dismissing the Democrats wouldn’t necessarily enable the plaintiffs to compel Fulton to provide access to paper ballots, which are by law kept in storage and can only be made available upon a judge’s order, he said. Digital images of Fulton’s absentee ballots have already been made public.
“If you don’t have all members of the board in front of the court, then the court effectively can’t order the board to do anything. It can only order the Republican members of the board to do something,” Sells said. “They don’t constitute a majority, so it’s unlikely the board could act in that way.”
Amero previously dismissed the Fulton elections board as a whole and the county government itself, but the plaintiffs kept the case going by suing the election board members as individuals. The defendants are Democrats Vernetta Keith Nuriddin, Aaron Johnson and Alex Wan and Republicans Kathleen Ruth and Mark Wingate.
Amero will next consider how to proceed during a court hearing scheduled for Nov. 15.
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