"Capture and Kill": Judge McBurney's Alleged Delay Tactics on VoterGA Election Lawsuit

It seems that even the most substantial election cases are subject to extraordinary levels of foot-dragging by courts, and VoterGA's Fulton County counterfeit ballot case is no exception. The multiple setbacks due to various opinions and delays in rulings in this case have caused considerable confusion on social media platforms over the timeline of the case and where it currently stands in the courts. 

Originally filed on Dec. 23, 2020, with ample evidence and affidavits, Petitioners now patiently await the a decision from court on whether to assign another judge because of McBurney's alleged bias or keep him. *According to a conversation on Wednesday morning with Garland Favorito, Founder of VoterGA, McBurney waited until the end of September to agree that the "Plaintiffs' motion to recuse was submitted in a timely and sufficient fashion. The case was then transferred to Judge Melynee Leftridge" in the Superior Court of Fulton County "to make a final decision on whether to recuse Judge McBurney." Favorito also mentioned his belief that the Court of Appeals also delayed the case unnecessarily. He alleges the Court of Appeals was waiting to see whether "non Fulton County Plaintiffs would join the case."

To clarify, VoterGA's motion to recuse was filed on May 16, 2023, and according to Georgia Code 15-6-21(b), Judge McBurney had "90 days to address the Motion." However, sadly, that deadline passed on Aug. 15, 2023. Frankly, it begs the question of whether some of these delays may be purposeful attempts not only to confuse but also to discourage legal action on election fraud from concerned citizens. Whatever the purpose of the delays is, in McBurney's case, the delay is illegal. 

Both UncoverDC and Rasmussen Reports have been following election cases like VoterGA's closely. On Sept. 29, 2023, "the Superior Court of Georgia granted VoterGA's request to give McBurney the boot," according to American Liberty Report News. The same article states:


"He [McBurney] never did anything about the case in all that time. The case [could now] be reassigned to the third judge in the past three years. It's pretty obvious what's happening here, right?

The judges are playing judicial' catch and kill' with the case. They sit on it and don't do anything, hoping that the plaintiffs will give up or go broke and forget about the whole thing. They really don't want anyone inspecting those 150,000 or so ballots. The really interesting thing about this is that neither of the two judges found any justification to dismiss the case."

On the same day, Rasmussen also highlighted that "141 days" had passed and Judge Robert McBurney had "done nothing...ignoring repeated motions to follow Georgia Code." Rasmussen also called the delay an example of "Judicial Capture & Kill" while noting the delay probably means the ballots "must be huge trouble." It probably proves "Joe Biden didn't 'win' Georgia in Nov. 2020,"  according to Rasmussen.

A May 23, 2023, VoterGA press release reiterated that standing in VoterGA's counterfeit ballot case had been reinstated because of a ruling in another case, as highlighted in one of Rasmussen Reports more recent "X" posts on Monday. While the timeline was not immediately clear in Rasmussen's thread to those who are not following closely, Petitioners in Favorito et al., v. Wan et al. (originally entitled Favorito et al., v. Cooney et al.) did, in fact, win back their standing in the case on Oct. 27, 2022. 

Notably, in the same May 23, 2023 press release, VoterGA also "announced a motion to recuse newly assigned Judge Robert McBurney for bias." They had expected Amero would continue; however, when the ruling was vacated, Amero transferred the case to McBurney, "who accepted it in a surprise move that Petitioners claim will obstruct an inspection." 

According to the May 2023 Press Release, Petitioners alleged:

"McBurney demonstrated a proven track record of notorious bias against election integrity advocates in his 2020 election cases. They presented a variety of examples showing extrajudicial biased remarks in McBurney's dismissal of a similar case brought by former Senator David Perdue. They also showed bias in McBurney's unprecedented release of private excerpts from the Special Grand Jury report investigation initiated by Fulton District Attorney Fani Willis. The release affected identifiable witnesses similarly situated to the Petitioners. McBurney was appointed to the bench in 2012 by Governor Nathan Deal after he led an investigation into Deal that was mysteriously closed. As a federal prosecutor, McBurney signed a grand jury subpoena to collect evidence for the criminal investigation against Deal."
History of Standing in VoterGA's Counterfeit Ballot Case

The VoterGA Petitioners "won a confirmation of standing from the Georgia Supreme Court" after Judge Amero "falsely" ruled that Petitioners had no standing and "failed to allege a particularized injury.Judge Amero's ruling was overturned because of precedent set in the Sons of Confederate Veterans et al. v. Henry Cty. Bd of Commissioners lawsuit. As a result, the VoterGA lawsuit was returned to Georgia's Court of Appeals, where it remanded the Petitioners' claims to the trial court "for further consideration." Per reporting by UncoverDC in early January 2023, VoterGA founder Garland Favorito was persistent because he never doubted citizens had standing to inspect the ballot images.

The counterfeit ballot case in Georgia is an important one. It would allow citizens to inspect 147,000 Fulton County ballots, some of which are alleged to be counterfeit. Judge Brian Amero granted access to the ballots on May 22, 2021. Judge Amero originally granted access to the ballot images on Mar. 15, 2021, but attorneys in the case argued the resolution of the images was insufficient to examine the ballots properly. Unfortunately, Judge Amero later dismissed the case due to lack of standing, which brings us to Rasmussen's "X" post on Monday. The issue of standing was rectified in October of 2022, but due to delays on whether to recuse Judge McBurney, VoterGA has not yet been able to inspect ballots and proceed with its case, which has now dragged on for almost three years. 

*This article has been edited to reflect a more precise discussion of who will make the final decision as to whether Judge McBurney will be retained or recused in VoterGA's Fulton County county counterfeit ballot case. 

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