A warning by Supreme Court judge Brett Kavanaugh that hand-counting ballots can lead to “chaos and confusion” has been used by a Georgia judge to strike down a new election rule.
Judge Robert McBurney appeared to choose Kavanaugh’s words to counter any Republican challenge to the Supreme Court.
The Republican-led Georgia State Election Board introduced a rule in September that three election workers must each count all the presidential ballots by hand. Democrats have accused Republicans of trying to introduce a flurry of new rules to delay and confuse the count process in what is a crucial swing state in the presidential election. Early voting began in Georgia on Tuesday.
Newsweek sought email comment from the Georgia State Election Board on Wednesday.
McBurney noted that the rule initially looks like a good idea, but it will lead to confusion. He granted an injunction preventing the enforcement of the rule, and quoted Kavanaugh, who was appointed to the Supreme Court by former President Donald Trump.
Megan Varner/Getty Images
In his concurring decision in 2022 in the case of Merrill v. Milligan, Kavanaugh had noted that hand-counting each ballot was too arduous for election workers and could lead to chaos.
“State and local election officials need substantial time to plan for elections. Running elections statewide is extraordinarily complicated and difficult,” Kavanaugh wrote at the time.
“Those elections require enormous advance preparations by state and local officials and pose significant logistic challenges,” Kavanaugh added. “[Implementing the Hand Count Rule] would require heroic efforts by those state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.”
In Merrill v. Milligan, the Supreme Court ruled that the plaintiffs demonstrated a reasonable likelihood of success on their claim that an Alabama districting plan violated the Voting Rights Act, which prohibits racial discrimination.
McBurney, a Fulton County Superior Court judge, used Kavanaugh’s opinion on Tuesday to grant an injunction to the election board in Cobb County, in Atlanta’s suburbs.
The Cobb County board said that the hand-count rule would disrupt the 2024 presidential election.
In Tuesday’s ruling, McBurney wrote that the hand count rule “is too much, too late” and granted the temporary injunction while he considers the issue further.
Gabe Sterling of the Georgia secretary of state’s office wrote on X, formerly Twitter, on Tuesday that more than 328,000 ballots were cast on Tuesday. The previous first-day record was 136,000 in 2020, Sterling added.
The Georgia government website, Georgia.gov, says that any registered voter may cast an early ballot.
It adds that early voting “can help Georgia voters avoid crowds or find a time to vote that’s better for their schedules in the weeks prior to Election Day.”
