The most critical trial this election season doesn't involve Trump

For Donald Trump legal watchers, Fulton County Superior Court feels like a ghost of winter past. It was where we watched, mostly from our computer screens, the telenovela-like hearings into whether District Attorney Fani Willis should continue prosecuting the Georgia election interference case. After Judge Scott McAfee ultimately ruled against disqualifying Willis, Trump and various co-defendants appealed almost instantly, virtually freezing that case in carbonite. And Fulton County — with its mug shots and guilty pleas and motley cast of lawyers and defendants — faded away.

For political operatives and party activists, however, Georgia's most populous county has never receded in importance or controversy. Fulton County was ground zero for Trump's baseless allegations of widespread election fraud, despite Georgia Secretary of State Brad Raffensperger, various senior Justice Department leaders, and others telling him otherwise. Even today, MAGA acolytes are not only attempting to revive investigations into ballot irregularities in Fulton County during the 2020 election but are already sowing doubt about the integrity of elections this cycle — and insisting that county election board members therefore need enhanced discretion and investigative power when it comes to certifying votes.

And that brings me right back to Fulton County Superior Court, where the most consequential trial of the 2024 election season will play out. But it won't be in Willis' criminal case against Trump, his advisers and his enablers. And although this trial, set to begin Oct. 1, involves both the Democratic National Committee and its GOP counterpart, it technically has nothing to do with Trump at all.

In fact, it's perhaps the least-sexy-but-hugely-significant case imaginable. There are no allegations of splattered ketchup, clandestine Oval Office meetings, surreptitious gatherings of fake electors, or missing presidential call logs in this one.

Instead, the case turns on the legality of two rules recently passed by the five-member Georgia State Election Board. Board members are appointed by different elected officials or parties. Currently, there are three Trump loyalists among them. And among the rules the MAGA three have pushed are one requiring county election board members to conduct a "reasonable inquiry" before certifying election results (without defining what constitutes a "reasonable inquiry") and another allowing them to demand any and all "election related documentation created during the conduct of elections" from their own county, again before certification occurs.

The plaintiffs — various county election board members, voters, two Georgia state House candidates, and both the DNC and Georgia Democratic Party — allege those rules could upend “the straightforward and mandatory act of certification.” Their lawsuit further alleges the new rules give “broad license for individual [county] board members to hunt for purported election irregularities of any kind, potentially delaying certification,” which Georgia law requires to be completed by 5 p.m. ET six days after Election Day.

If past is prologue, they’re not wrong. In March, Fulton County election board member Julie Adams refused to certify her county’s primary results, asserting she could not fulfill her responsibilities without access to documentation. While Adams was ultimately outvoted, she later sued in a now-dismissed case, insisting she needed and was entitled to a plethora of data, including “all qualified county electors showing those who signed in at polling locations as well as those who returned absentee ballots, the numbers of votes cast on particular machines and during advance voting, information on provisional and ‘drop box’ ballots, digital images of ballots as they were cast, and all absentee ballot applications and envelopes, among other data.” Yet Adams herself attached to her suit an email from a county elections administrator flatly telling her that most of what she sought could not be gathered for her review before the certification deadline.

But what would have happened if Adams had not been outvoted but instead had like-minded colleagues? The DNC and their fellow plaintiffs understand well that chaos could ensue. Therefore, they want Fulton County Superior Court Judge Robert McBurney to declare, through a court order, that the new rules are valid only to the extent that county boards still must certify their results by Nov. 12. Or, if McBurney finds the rules and the applicable law cannot be harmonized, the plaintiffs are asking him to enjoin — or prevent the enforcement of — the rules altogether.

Ordinarily, litigation about the interpretation and legitimacy of state regulations often takes months to play out. But here, the plaintiffs urged McBurney to expedite the case because county board members cannot conduct elections under "an uncertain legal regime." Accordingly, on Tuesday, as most of the political world geared up for the first and potentially only presidential debate of this cycle, McBurney quietly scheduled a livestreamed bench trial (meaning the judge acts as jury) for Oct. 1.

But is what happens at that trial really that critical? Absolutely.

Imagine a world in which local election board members are empowered, through the guise of doing their own "research," to delay or refuse the certification of county results. That could hold up the certification of the entire state's results and even potentially its certificate appointing electors. And if that were to happen, Georgia's missing electors would be subtracted from the total needed to win the electoral college. Put another way, the failure to certify thousands of votes could end up depriving the rightful winner of a presidency voted upon by nearly 200 million.

But even supposing Raffensperger and Georgia Gov. Brian Kemp would forge ahead and certify the state’s votes and its slate of electors respectively without individual counties’ results, that, in and of itself, could lead to an outcry about the illegitimacy of Georgia’s slate. Meanwhile, the “election-related documents” collected by election deniers could be widely disseminated in a deliberately cherry-picked effort to promote yet another tale of a stolen election. Yes, the actual winner could still be inaugurated, and maybe that variation of the story ends without violence and incivility. But history shows us otherwise.

All in all, the Georgia election board case so few are talking about is poised to become the trial of this election cycle. The only question is whether those who care about free and fair elections can see it coming.