Judge to decide fate of Fulton absentee ballot inspection

January 5, 2021 Atlanta: Fulton County Election Workers opened and sorted ballots on Tuesday, Jan. 5, 2021 at the Georgia World Congress Center in downtown Atlanta before 7 pm when they were then allowed to scan them. Georgia’s long moment in the national spotlight culminated Tuesday, Jan. 5, 2021, when state voters cast their votes to determine which party would control the U.S. Senate. Georgia voters also voted to elect a member of the state Public Service Commission, which regulates energy and utility rates and issues. The two most expensive Senate races in history saw more than $833 million been spent by the four campaigns and outside groups supporting them, blanketing the airwaves and stuffing mailboxes across the state. Much of that money has come from organizations with no direct connection to Georgia. (John Spink / John.Spink@ajc.com)
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January 5, 2021 Atlanta: Fulton County Election Workers opened and sorted ballots on Tuesday, Jan. 5, 2021 at the Georgia World Congress Center in downtown Atlanta before 7 pm when they were then allowed to scan them. Georgia’s long moment in the national spotlight culminated Tuesday, Jan. 5, 2021, when state voters cast their votes to determine which party would control the U.S. Senate. Georgia voters also voted to elect a member of the state Public Service Commission, which regulates energy and utility rates and issues. The two most expensive Senate races in history saw more than $833 million been spent by the four campaigns and outside groups supporting them, blanketing the airwaves and stuffing mailboxes across the state. Much of that money has come from organizations with no direct connection to Georgia. (John Spink / John.Spink@ajc.com)

Credit: JOHN SPINK / AJC

A court hearing Monday will determine case trying to find election fraud

A search for fraud in Georgia’s election was about to begin in a Fulton County warehouse last month, when a judge planned to set ground rules to inspect over 145,000 absentee ballots.

But the ballot review stalled because the county asked the judge to throw out the case.

Both sides will have their day in court Monday, when Superior Court Judge Brian Amero considers whether and how to move forward.

ExploreUpdate: Judge hears arguments over new inspection of Fulton County ballots

Election skeptics will argue they need an opportunity to search for possible counterfeit ballots. Fulton officials will ask the judge to put an end to the quest to undermine Democrat Joe Biden’s nearly 12,000-vote win over Republican Donald Trump.

“We should be able to prove whether the election results were correct or not. They’re certainly under question,” said Garland Favorito, the lead plaintiff in the lawsuit. “If something nefarious happened, we can prevent it in the future.”

Attorneys for Fulton have argued that the case is a baseless and flawed attempt to use the courts to intervene in an election that was settled seven months ago.

Election officials have repeatedly said there’s no evidence of significant fraud, and two recounts validated the results. The secretary of state’s office is investigating over 100 complaints about last year’s general election, and even if all of them exposed invalid votes, Biden still would have won.

Amero previously ordered Fulton to unseal its absentee ballots so plaintiffs in the case could make high-resolution copies, enabling them to try to find fake ballots. The case is based on sworn affidavits from several Republicans who said they saw “pristine” ballots with perfectly filled ovals and no fold lines during November’s manual recount and audit.

The ballot review will probably survive in some form, said Don Samuel, a prominent Atlanta attorney hired by the Fulton County elections board. The judge will have to decide how to proceed.

“I want to emphasize that we are not trying to stop it,” Samuel said. “But they’re going to have to have protocols in place to maintain the integrity of the ballots. They’re going to have to make sure that things aren’t tampered with and it’s not going to be a circus.”

Others argue that the case should be dismissed entirely, preventing politically motivated attempts to find a different election result.

Alex Gulotta, the Arizona director for the voting rights organization All Voting Is Local, said Georgia should avoid ballot investigations like the one in his state, which is being overseen by a company called Cyber Ninjas whose CEO has supported Trump’s election conspiracy theories.

“It’s not about validating what happened in the election. We know what happened, and the result is not what some people want,” Gulotta said. “It should stop because we’re wasting our time and we’re wasting our money.”

Lawyers for the plaintiffs didn’t return messages seeking comment.

An attorney for the conservative Tea Party Patriots, a group that filed a court brief supporting the ballot inspection and backed efforts to flip the Georgia results for Trump, said voters deserve a chance to find evidence and bring it before a judge.

“The motion (to dismiss) filed by Fulton County is weak and a last-ditch effort to clearly attempt to further hide the evidence,” said the attorney, Kurt Hilbert. “I am confident that the court will see through the tactics of Fulton County.”

The court hearing will focus more on the legal grounds for the lawsuit rather than on the appropriateness of the ballot review itself.

Fulton’s attorneys have said in court filings that the case should be dismissed because it’s contesting an election that was already settled, and it asks for an advisory opinion from the court on the election even though the rights of the parties aren’t in doubt.

Regardless of the outcome of Monday’s court hearing, the plaintiffs will have some ability to scrutinize absentee ballots, though perhaps not as much access as they’d like.

Digital ballot images are now public records in Georgia, available for anyone to review if they pay the county the cost of retrieving them — $240 in the case of Fulton’s absentee ballots. But those images come from ballot scanners that don’t create high-resolution images that the plaintiffs say they need.

The lawsuit is asking county election officials to rescan ballots at high resolutions and also allow the plaintiffs to look at ballots in person. Original ballots would remain in the custody of election officials, and the plaintiffs would be responsible for the costs of the review.