The timing and likelihood of a proposed inspection of 147,000 three-count mail-in ballots in Fulton County are uncertain after a judge dismissed Fulton County, its electoral board and the court clerk as defendants in a lawsuit Thursday.
Henry County Superior Court Judge Brian Amero said sovereign immunity prevents government entities from being prosecuted, but granted a motion to add the five individual members of the Enrollment and Elections Council of the Fulton County (BRE) as defendants, allowing the case to move forward. for the moment.
In a footnote to the orderAmero said claims against BRE members could also be excluded by “official immunity”, but said “the case is not sufficiently developed to justify such a conclusion.”
The complicated nature of the judge’s order – and the general climate surrounding the allegations of electoral fraud that have never been confirmed – leads both sides to the case to view the ruling as a positive development. This case is one of many in a national environment where many Republicans refuse to believe that Joe Biden won the election over then-President Donald Trump without widespread fraud and are taking extraordinary steps to try to prove it. .
Bob Cheeley, a lawyer representing two of the plaintiffs in the lawsuit, said the judge who granted the three Fulton party’s dismissal motions was not a setback but rather a necessary step towards their ultimate goal of inspecting ballots. vote and prove that the election was fraudulent.
“It’s a victory, and it’s a victory for anyone who believes in a citizen, a voice,” he said. “Everyone wants to know that when they vote, their vote counts.”
Cheeley said he was confident the judge’s order would allow the inspection to move forward and survive any attempt to dismiss the case against the members of the electoral committee who are the new defendants.
“I don’t think they have a prayer for this petition to be granted due to a decision by the Georgia Supreme Court – specifically cited by the judge in his order – sets the stage for legal action against the members individuals who carried out the actions that we allege violated the constitutional protections of our clients, ”he said.
This decision, Lathrop v. Deal, said that while sovereign immunity prevents government entities from being prosecuted, there are other avenues to seek redress, such as suing individual members for “official acts that would be unconstitutional.”
Amero also found that a recent amendment to the Georgia State Constitution did not waive sovereign immunity, since the alleged violations occurred before January 1, 2021, when the new amendment entered into force. .
In a statement posted online, lead plaintiff Garland Favorito said the order “continues the winning streak” in the case focused on the allegations – some of which have already been investigated and debunked by election officials – according to which Georgia’s most populous county had thousands of fraudulent votes. in the November elections.
“We are happy that the court has ruled in our favor again for the fifth time,” said Favorito, the electoral director of the Constitutional Party of Georgia. “The ruling replaces the defendants by replacing the government organizations currently appointed with individual board members that we originally appointed in our lawsuit. [Fulton BRE attorney] Don Samuel’s attempt to close our case. “
In recent weeks, Favorito has appeared at press conferences with Republican primary candidates who have made false and misleading statements about Georgia’s election and voting systems, retweeted disinformation from Russian state media, touted a so-called “forensic audit” of Georgia’s votes and shared plots. alleging foreign interference in the 2020 Georgia elections.
Samuel, a well-known criminal defense attorney who represents the county electoral board, said he felt the judge would likely end up dismissing the case altogether because the five new defendants would have done nothing wrong. as individuals.
“They are only acting, in the election, in their official capacity as members of the board of directors, so we intend to quickly table a motion to remove them,” he said. . “This last sigh from the plaintiffs is really nothing more than a death rattle for this litigation.”
With the new order and the new defendants, the case is unlikely to be resolved quickly. Complainants will have to serve the five BRE members and allow them time to respond to complaints, and there will be a motion to dismiss them and the case that needs to be dealt with.
It could be a few months before a hearing on these motions, and the discovery – including the proposed ballot inspection and a May order to unseal Fulton’s mail-in ballots – would likely be on hold until the resolution.
Georgia’s election was counted three times, including once by hand, to verify that Biden narrowly won the state’s electoral votes by about 12,000 votes. Since then, former President Trump and his allies have attacked the Georgian electoral system, filed (and lost or dismissed) numerous legal challenges, and made false claims regarding the vote count.
Trump’s personal lawyer Rudy Giuliani had his New York attorney’s license suspended on Thursday, in part thanks to a court that found he lied about Georgia and other electoral processes. Swing states.