Inset: Ian McKellen as Gandalf the Grey in Lord of the Rings: The Fellowship of the Ring (YouTube/TheLotrTV/New Line Cinema). Background: Fulton County Superior Court Judge Robert McBurney speaks at the Fulton County courthouse, Tuesday, July 11, 2023, in Atlanta (AP Photo/Brynn Anderson).
A Georgia judge on Monday put to rest long-simmering concerns that powerful allies of Donald Trump might wreak havoc on the 2024 presidential contest by refusing to certify official election results.
And he seems to have used a well-known fantasy character to do it.
Fulton County Superior Court Judge Robert McBurney ruled that county election officials exercise a “mandatory” role when it comes to vote certifications and that “no election superintendent (or member of a board of elections and registration) may refuse to certify or abstain from certifying election results under any circumstance.”
In the order clarifying the rules Peach State election board officials must follow, the judge appears to have used a reference to the fantasy novel series “The Lord of the Rings” by author J.R.R. Tolkien.
The underlying lawsuit was filed by Julie Adams, a Republican who joined the Fulton County Board of Registrations and Elections member in February. She sought various forms of relief from the court — chiefly that her certification duties were “discretionary, not ministerial in nature.” Secondarily, she also sought “full access” to certain “Election Materials” controlled by the director of the board.
In reverse order, the request for access was granted, while the request for declaratory relief was denied.
“Much of what [elections officials] do is left to their broad, reasoned discretion,” the judge mused. “But not everything — some things an election superintendent must do, either in a certain way or by a certain time, with no discretion to do otherwise. Certification is one of those things.”
Under the relevant section of Georgia law, election officials are instructed that they “shall” certify election results “not later than 5:00 P.M. on the Monday following the date on which such election was held.”
McBurney reinforces the point repeatedly by pointing out that “nothing in” Georgia law, anywhere in the statute, “nor in any case from any appellate court of this State that suggests, hints, indicates, or directs that the plain statutory language” in the relevant subsection “means anything other than precisely what it says: the superintendent must certify and must do so by a time certain.”
The judge goes on at length [emphasis in original]:
After the close of the polls on the day of an election, the superintendent “shall … publicly commence the computation and canvassing of the returns.” The superintendent has the discretion to do this canvassing where she wishes and largely how she wishes (with staff, divided by precinct, etc.) but do it she must — and when she is done she “shall tabulate the figures for the entire county or municipality and sign, announce, and attest the same.”
An even longer discussion about the meaning of the word “shall” in legal discourse is contained in a lengthy footnote.
That’s where the reference to the fantasy series comes in.
In that footnote, McBurney aims to make a distinction between the common, or non-legal, definition of “shall” and the often-different meaning of “shall” where legal definitions are concerned.
The judge says that in the common parlance, the word “connotes instruction or command” as in: “You shall not pass.”
In our contemporary cultural vocabulary, this appears to be a reference to lines uttered by the character Gandalf the Grey.
The full line uttered is:
You cannot pass! I am a servant of the Secret Fire, wielder of the flame of Anor. The dark fire will not avail you, flame of Udûn! Go back to the Shadow. You shall not pass!
The phrase is well-known to those who have seen Peter Jackson’s 2001 film, “The Lord of the Rings: The Fellowship of the Ring.” In the film, the wizard character says the operative phrase to taunt a monster named Balrog in the Mines of Moria — which ultimately allows his comrades to escape and continue their hero’s journey.
The source material, however, the book of the same name, only contains the phrase: “You cannot pass.”
Notably, the phrase is also well-known to readers of history.
During World War I, the French armed forces used an iteration of the phrase to denote a determination not to allow an enemy to advance. The phrase was later used in propaganda posters. Decades later, another iteration was used by Spanish Republican and communist forces as an anti-fascist rallying cry during the Spanish Civil War.
In the Georgia election case, the judge appears to be relying on Gandalf’s version — in order to make the point that the common meaning of the word “shall” is more limited than the sometimes capacious meaning of the word when used by lawyers and judges.
But in this case, the judge says, “shall” is in line with common use.
While ruling against Adams’ foremost request, the judge’s order offers some understanding of her position — even hailing the lawsuit as important for other, similarly-situated officials going forward.
“Plaintiff’s demand for a declaration must be met so that she, her colleagues on the FCBRE, and other superintendents around the State understand the scope of their authority when called upon to certify election results,” McBurney observes.
Still, the judge says, the basic presumption behind the lawsuit — that an election official can refuse to certify voting results they find to be incorrect or suspect — is entirely off-base.
“[I]f election superintendents were, as Plaintiff urges, free to play investigator, prosecutor, jury, and judge and so — because of a unilateral determination of error or fraud — refuse to certify election results, Georgia voters would be silenced,” the order concludes. “Our Constitution and our Election Code do not allow for that to happen.”
Have a tip we should know? [email protected]
