The timing and likelihood of a proposed inspection of 147,000 thrice-counted absentee ballots in Fulton County is up in the air after a judge dismissed Fulton County, its elections board and the clerk of courts as defendants in a lawsuit Thursday. 

This story also appeared in Georgia Public Broadcasting

Henry County Superior Court Judge Brian Amero said sovereign immunity barred the government entities from being sued, but did grant a motion to add the five individual members of the Fulton County Board of Registration and Elections (BRE) as defendants, allowing the case to move forward for now.

In a footnote of the order, Amero said that claims against the BRE members might also be barred by “official immunity,” but said “the record is not sufficiently developed to warrant such a conclusion.”

The complicated nature of the judge’s order — and overall climate around claims of election fraud that have never borne out — leads both sides in 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 Joe Biden won the election over then-President Donald Trump without widespread fraud and are taking extraordinary steps to try and prove it.

Bob Cheeley, an attorney representing two of the plaintiffs in the suit, said the judge granting motions to dismiss the three Fulton parties was not a setback but rather a necessary step toward their ultimate goal of inspecting the ballots and proving the election was fraudulent.

“It’s a victory, and it’s a victory for anyone who believes in one citizen, one vote,” he said. “Everybody wants to know that when they vote that their vote matters.”

Cheeley said he is confident that the judge’s order will allow the inspection to move forward and survive any attempts to dismiss the case against the election board members that are the new defendants.

“I don’t think they have a prayer of getting that motion granted because of a Georgia Supreme Court decision — specifically cited by the judge in his order — paves the way for a case to be filed against the individual members who carried out the actions that we allege violated our clients’ constitutional protections,” he said.

That decision, Lathrop v. Deal, said that while sovereign immunity prevents the government entities from being sued, there are other ways to seek relief, such as suing the individual members for “official acts that are alleged to be unconstitutional.”

Amero also found that a recent amendment to the Georgia state Constitution does not waive sovereign immunity, since the alleged violations occurred before Jan. 1, 2021, when the new amendment took effect. 

In a statement posted online, lead plaintiff Garland Favorito said the order “continues the string of victories” in the case that is centered around claims — some of them already investigated and debunked by elections officials — that Georgia’s most populous county counted thousands of fraudulent votes in the November election.

“We are pleased that the court has ruled in our favor again for the fifth time,” said Favorito, the elections director for the Constitution Party of Georgia. “The ruling substitutes Defendants by replacing currently named government organizations with individual board members we named originally in our lawsuit. It also moots [Fulton BRE attorney] Don Samuel’s attempt to dismiss our case.”

In recent weeks, Favorito has appeared at press conferences with Republican primary candidates who have made false and misleading claims about Georgia’s election and voting systems, retweeted disinformation from Russian state media, hyped a so-called “forensic audit” of Georgia’s votes and shared conspiracies alleging foreign interference in Georgia’s 2020 election.

Samuel, a well-known criminal defense attorney who is representing the county elections board, said he felt the judge would likely eventually dismiss the case outright since the five new defendants are not alleged to have done anything wrong as individuals.

“They only act, in connection with the election, in their official capacity as board members, so we intend to promptly file a motion to dismiss them,” he said. “This last gasp on the part of the plaintiffs is really nothing more than a death rattle for this litigation.”

With the new order and new defendants, resolution of the case is not likely to be swift. The plaintiffs will have to serve the five BRE members and allow them time to respond to the claims, and there will be a motion to dismiss them and the case that would need to be addressed.

It could be a few months before a hearing on those motions, and discovery — including the proposed ballot inspection and a May order to unseal Fulton’s absentee 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 Georgia’s election system, filed (and lost or dismissed) numerous court challenges and pushed false claims about the vote count.

On Thursday, Trump’s personal attorney Rudy Giuliani had his law license suspended in New York, thanks in part to a court finding he lied about Georgia and other swing states’ election processes.

This story comes to The Current through a reporting partnership with GPB News, a non-profit newsroom covering the state of Georgia.

Stephen Fowler is political reporter for Georgia Public Broadcasting.