Swing-State Shenanigans, Georgia Edition | Opinion

“Oh Georgia, no peace I find” sang Ray Charles in Georgia on My Mind. Today, that should go double for the rest of us.

And that’s because the fate of the 2024 presidential election may rest with Georgia and a newly filed lawsuit by Georgia and national Democrats. It challenges an initiative from the Georgia State Election Board adopted by a 3-2 vote that requires election officials to make an undefined “reasonable inquiry” prior to certifying election votes. It also permits, without specifying any form of supervision, individual county board members to handle original balloting documents. Former President Donald Trump has praised the prevailing board members by name as “pit bulls”—not just for “honesty” and “transparency” but more important, “for victory.”

If pro-Trump officials can use this new rule to hold up Georgia election results without good cause for an unlimited period of time, it might devastate democracy. And Trump, of course, may not care. He’s not too keen on democracy. He has repeatedly praised dictators and dictatorship, and still refuses to concede that he lost the 2020 election despite losing 60 of 60 lawsuits challenging the results.

So, with democracy hanging in the balance, will the American legal system rise to the occasion? The case isn’t a difficult one. A court doing its duty can’t fail to rule that any “inquiries” can’t block the need to report election results. The board doesn’t have the right to change laws passed by the Georgia legislature, and those laws require the results to be certified no later than 5 p.m. six days after election day.

A court should also readily recognize that the two provisions are impossibly vague and therefore impossible to enforce without judicially imposed limits. What’s a “reasonable inquiry?” Who decides whether it’s reasonable? How long can it go on? Can a single concern block the whole counting process?

And what’s the rule for anyway? Georgia already has laws governing challenges to election honesty. Recounts can be demanded. An election contest can be filed alleging “misconduct, fraud or [election] irregularity.” Those laws set up a system that the pro-Trump board can’t simply smother.

So, the case should be a legal no-brainer. But it likely won’t be. After all, the Georgia courts have already stumbled in one Trump-related election case. This past spring, Judge Scott McAfee allowed Trump and his co-defendants to turn his Georgia election fraud case into a circus by letting the defendants put prosecutor Fani Willis on trial—preposterously for having an affair with a fellow prosecutor. While the judge rightly rejected the move to knock Willis out of the case, Trump was not only allowed an early appeal, but a Georgia appeals court suspended proceedings in front of McAfee while it considers Trump’s claims. The case will thus be in limbo until after the election.

That case joins similar embarrassments to the judiciary this year. Judge Aileen Cannon dismissed Trump’s secret document case in Florida, not on its merits, but because of the mechanism used to appoint the prosecutor. The Supreme Court crushed a Colorado ruling striking Trump from the ballot as an insurrectionist, not because he wasn’t an insurrectionist, but because the court felt the constitutional provision at issue needed implementing language. It also stalled Trump’s Washington, DC, federal election fraud case for months, again not because he committed no fraud, but because it decided to create some consequence-free zones within which presidents can commit crimes with impunity. Unfortunately, the courts have amassed a mostly dismal record in Trump’s cases.

So, yes, Georgia should be on our minds. Watch while Trump and his allies try to tie the new case up in knots with the same old diversionary tactics. Will the Georgia courts let him kick them in the head again or will they up their game and call him out?

It would be simple to do it. The court has the power to set a strict schedule. The judge should order that any preliminary motions must be filed in one combined motion to be heard within two weeks—remember it’s urgent. The judge should hear and decide the main issue within three weeks. The judge should require any post-ruling motions to be resolved within three days of the initial decision. Appellate courts must expedite their review to resolve the whole matter well before the election.

If our democracy is to survive, judges must judge. Their failure to do so during most of the Trump trials has been a bitter blow to the rule of law. Now, it’s Georgia’s turn again with this new case. As Ray Charles might have put it, “Georgia, the road to righteousness is thine. Will you walk it, or is justice no more than moonlight through the pines?”

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.

The views expressed in this article are the writer’s own.