The case, filed in Fulton County by the Georgia Democratic Party and the Democratic National Committee, challenges two new rules passed by the Georgia State Board of Elections related to the certification of election results. The Democrats argue the rule changes could lead to confusion and certification delays of the 2024 presidential election results.

The first rule requires county officials to conduct a “reasonable inquiry” before certifying results, though the new rule lacks a clear definition of what constitutes such an inquiry. The second rule permits election officials to examine all election-related documentation before certification, raising concerns that this could cause delays in close or contested races. Both were passed by 3-2 votes, with Republican members of the election board in the majority.

McBurney’s questioning during the hearing signaled a degree of skepticism toward the plaintiffs’ argument that these rules could obstruct the certification process. He first sought clarification from both sides, asking whether they agreed that certification of election results by a Nov. 12 deadline, one week after the Nov. 5 Election Day, is mandatory and must meet statutory deadlines. Both parties affirmed this point.

“What we’re debating about is what [superintendents] can do in the period leading up to certification, and whether we call that work ministerial or discretionary,” McBurney said.

With the parties expressing no disagreement on the obligation to certify the election, McBurney signaled uncertainty at the outset of the bench trial about what further clarification was needed from the court. He pressed the plaintiffs on why the rules would cause county officials to believe they could not certify results, suggesting that the mandatory nature of certification was already clear.

The Democrats contended that the lack of clarity in the rules could lead to misinterpretation by election officials, creating unnecessary delays and possibly threatening voters’ rights. They urged the court to issue a clear declaration to prevent any such confusion.

The judge seemed to suggest that the second rule, the examination measure that allows superintendents to examine election-related documentation, does not create the same level of uncertainty as the reasonable inquiry rule since it is optional rather than obligatory.

Attorney Baxter Drennon spoke on behalf of the Republican National Committee, which intervened in the case in support of the State Election Board’s certification rules.

Drennon called the plaintiffs’ concerns “hypothetical,” noting, “I have not heard the petitioners cite one aspect of either rule that is inconsistent or different than what’s required here under the law.”

The key matter is whether McBurney will issue a declaration or a writ of mandamus on the dispute before the November election. He appeared to cast doubt on whether the question in the case can be answered with a direct ruling, as the rules themselves do not seem to conflict with the obligation to certify results. Additionally, no county board member has yet used these rules as a reason to refuse certification, which may limit the court’s ability to intervene at this stage of the dispute.

While McBurney has not ruled on the case, his inquiries suggested he might not see the rules as inherently problematic. His approach indicated a willingness to allow the election board’s rules to stand, given the agreement among all parties that they may not interfere with the statutory requirements for certification.

The State Election Board has gained attention recently as its Republican majority has become more open to demands from activists, largely fueled by lingering anger over the 2020 election results in Georgia, which saw President Joe Biden narrowly defeat former President Donald Trump.

Trump, who raised doubts about Biden’s 2020 victory in the state, has praised board members Janice Johnston, Janelle King, and Rick Jeffares for pushing rule changes aimed at promoting “honesty, transparency, and victory.”

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Other lawsuits have cropped up against the election board amid the last-minute rule changes. On Monday, a day before the trial, Democrats filed a separate lawsuit targeting a different rule that the state election board passed on Sept. 20 by another 3-2 vote. That rule requires workers at polling places to hand-count paper ballots on election night, in addition to the automated vote tabulation that will take place the night of the election.

The case argued on Tuesday remains pending as McBurney considers whether further judicial clarification is necessary.