Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.
ARTICLE 4
SELECTION AND QUALIFICATION OF CANDIDATES AND PRESIDENTIAL ELECTORS
21-2-131. Fixing and publishing of qualification fees; manner of payment; distribution of fees paid.
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Qualification fees for party and public offices shall be fixed and published as follows:
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The governing authority of any county or municipality, not later than February 1 of any year in which a general primary, nonpartisan election, or general election is to be held, and at least 35 days prior to the special primary or election in the case of a special primary or special election, shall fix and publish a qualifying fee for each county or municipal office to be filled in the upcoming primary or election. Except as otherwise provided in subparagraph (B) of this paragraph, such fee shall be 3 percent of the total gross salary of the office paid in the preceding calendar year including all supplements authorized by law if a salaried office.
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For the offices of clerk of the superior court, judge of the probate court, sheriff, tax commissioner, and magistrate, the qualifying fee shall be 3 percent of the minimum salary specified in subsection (a) of Code Section 15-6-88, paragraph (1) of subsection (a) of Code Section 15-9-63, subsection (a) of Code Section 15-10-23, paragraph (1) of subsection (a) of Code Section 15-16-20, and paragraph (1) of subsection (b) of Code Section 48-5-183, exclusive of supplements, cost-of-living increases, and longevity increases. For the office of members of the county governing authority, the qualifying fee shall be 3 percent of the base salary established by local Act of the General Assembly or by Code Section 36-5-25 as adjusted pursuant to Code Section 36-5-24, if applicable, exclusive of compensation supplements for training provided for in Code Section 36-5-27 and cost-of-living adjustments pursuant to Code Section 36-5-28. If not a salaried office, a reasonable fee shall be set by the governing authority of such county or municipality, such fee not to exceed 3 percent of the income derived from such county office by the person holding the office for the preceding year or more than $35.00 for a municipal office;
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Within the same time limitation as provided in subparagraph (A) of paragraph (1) of this subsection, the Secretary of State shall fix and publish a qualifying fee for any candidate qualifying by this method with a state political party and for any candidate qualifying with the Secretary of State for a nonpartisan election and for any candidate filing with the Secretary of State his or her notice of candidacy for a general or special election. Such fee shall be 3 percent of the annual salary of the office if a salaried office, except that the fee for members of the General Assembly shall be $400.00. If not a salaried office, a reasonable fee shall be set by the Secretary of State, such fee not to exceed 3 percent of the income derived from such office by the person holding the office for the preceding year;
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A reasonable qualifying fee may be set according to party rule for each political party office to be filled in a primary. Such fees shall be set and published by the county or state political party not later than February 1 of the year in which the primary is to be held for the filling of such party office.
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Qualifying fees shall be paid as follows:
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The qualifying fee for a candidate in a primary shall be paid to the county or state political party at the time the candidate qualifies;
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The qualifying fee for all other candidates shall be paid to the superintendent or Secretary of State at the time the notice of candidacy is filed by the candidate.
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Qualifying fees shall be prorated and distributed as follows:
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Fees paid to the county political party: 50 percent to be retained by the county political party with which the candidate qualified; 50 percent to be transmitted to the superintendent of the county with the party's certified list of candidates not later than 12:00 Noon of the third day after the deadline for qualifying in the case of a general primary and by 12:00 Noon of the day following the closing of qualifications in the case of a special primary. Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the county, to be applied toward the cost of the primary and election;
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Fees paid to the state political party: 75 percent to be retained by the state political party; 25 percent to be transmitted to the Secretary of State with the party's certified list of candidates not later than 12:00 Noon of the third day after the deadline for qualifying in the case of a general primary and by 12:00 Noon of the day following the closing of qualifications in the case of a special primary. Such fees shall be transmitted as soon as practicable by the Secretary of State as follows: one-third to the state treasury and two-thirds divided among the governing authorities of the counties in the candidate's district in proportion to the population of each such county according to the last United States decennial census, such fees to be applied to the cost of holding the election;
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Qualification fees paid to the superintendent of the county:
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If the person qualifies as a candidate of a political body, 50 percent shall be transmitted to the state executive committee of the appropriate political body and 50 percent shall be retained by the superintendent of the county;
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If the person qualifies directly with the election superintendent as a candidate of a political party in accordance with subsection (c) of Code Section 21-2-153, 25 percent shall be transmitted to the state executive committee of the appropriate political party and 75 percent shall be retained by the superintendent of the county; and
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If the person qualifies as an independent or nonpartisan candidate, the superintendent of the county shall retain the entire amount of the fees.
Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the county, to be applied toward the cost of holding the election;
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Qualification fees paid to the Secretary of State shall be prorated and distributed as follows:
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If the person qualifies as the candidate of a political body, 75 percent shall be transmitted to the appropriate political body and 25 percent shall be retained by the Secretary of State; and
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If the person qualifies as an independent or nonpartisan candidate, the Secretary of State shall retain the entire amount of the fees.
Such fees shall be transmitted as soon as practicable by the Secretary of State as follows: one-third to the state treasury and two-thirds divided among the governing authorities of the counties in proportion to the population of each county according to the last United States decennial census, such fees to be applied to the cost of holding the election;
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Qualification fees paid to the superintendent of a municipality:
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If the person qualifies as a candidate of a political body, 50 percent shall be transmitted to the state executive committee of the appropriate political body and 50 percent shall be retained by the superintendent of the municipality; and
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If the person qualifies as an independent or nonpartisan candidate, the superintendent of the municipality shall retain the entire amount of the fees.
Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the municipality, to be applied toward the cost of holding the election.
(Ga. L. 1962, p. 504, § 1; Ga. L. 1963, p. 172, § 1; Code 1933, § 34-1004, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 10A; Code 1933, § 34-1013, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1974, p. 4, § 2; Ga. L. 1982, p. 897, §§ 1, 2; Ga. L. 1983, p. 884, § 6-4; Ga. L. 1983, p. 1190, § 3; Ga. L. 1987, p. 1360, § 4; Ga. L. 1988, p. 294, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1989, p. 643, § 1; Ga. L. 1992, p. 2510, § 1; Ga. L. 1993, p. 617, § 4; Ga. L. 1995, p. 1027, § 2; Ga. L. 1997, p. 590, § 7; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1122, §§ 1, 2; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 4; Ga. L. 2001, p. 240, § 7; Ga. L. 2001, p. 269, § 4; Ga. L. 2003, p. 517, § 10; Ga. L. 2004, p. 103, § 1.)
Editor's notes.
- Ga. L. 1983, p. 1190,
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1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.
Ga. L. 1998, p. 295,
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1 and Ga. L. 1998, p. 1122,
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1 made a conflicting change in paragraph (a)(1). Because the governor signed Ga. L. 1998, p. 1122 later in time, the change made by that act takes precedence.
Law reviews.
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For comment on Stoner v. Fortson, Civil No. 16271 (N.D. Ga. May 11, 1972), holding fee requirement for placement on primary ballot unconstitutional, see 22 J. of Pub. L. 243 (1973). For comment on Jenness v. Little, Civil No. 12762 (N.D. Ga. 1969), holding bar against placement of candidate's name on ballot due to inability to pay qualifying fee is denial of equal protection, see 18 J. of Pub. L. 483 (1969).
JUDICIAL DECISIONS
Paragraph (a)(2) unconstitutional.
- The fee scale set out in former paragraph (a)(2) was in violation of the equal protection clause of U.S. Const., amend. 14 and was therefore unconstitutional. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973) (decided prior to 1983 amendments).
Requirement of filing fee for indigent candidate unconstitutional.
- To require of an indigent independent candidate in a general election that the candidate come forward with both a nominating petition and a qualifying fee, with no other means of getting on the ballot, is a violation of equal protection. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).
To prohibit candidates from getting their names on the ballot solely because they cannot post a certain amount of money is illegal and unconstitutional. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).
Unless alternate method of ballot access provided.
- The unconstitutionality of a mandatory filing fee does not attach where the candidate can get the candidate's name on the ballot in some other fashion, either by nominating petition, primary election, or pauper's affidavit. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).
Reasonable filing fee permitted.
- The state or a political party can impose, upon prospective candidates, a filing fee the amount of which reasonably approximates the cost of actually processing a candidate's application for a place on the ballot. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973).
Provided it is not discriminatory.
- The state or a political party can impose qualifying requirements of prospective candidates so long as those requirements would not depend upon the economic status of the candidates or the financial resources of the voters or otherwise be so burdensome as to have a discriminatory effect. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973).
Erroneously computed qualifying fee.
- Chief magistrate was entitled to the salary provided by law for the magistrate's position, and not to a higher judicial salary based upon an erroneously computed qualifying fee which the magistrate paid prior to running for office. Rowland v. Tattnall County, 260 Ga. 109, 390 S.E.2d 217 (1990).
Cited in
Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976).
OPINIONS OF THE ATTORNEY GENERAL
Candidate for last one-half of an unexpired term must pay full qualification fee,
just as if the candidate were running for a full term. 1970 Op. Att'y Gen. No. U70-77.
Qualification fee paid by a candidate upon qualification is not a campaign expenditure
so as to require its inclusion in reports of expenditures under the Campaign Financing Disclosure Act of 1974, Ga. L. 1974, p. 155 et seq. 1974 Op. Att'y Gen. No. 74-103.
Qualification fees.
- Ga. L. 1968, p. 885,
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1 authorized city's governing authority to charge qualification fees to those running for office in a general city election. 1969 Op. Att'y Gen. No. 69-330.
RESEARCH REFERENCES
Am. Jur. 2d.
- 26 Am. Jur. 2d, Elections,
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261 et seq.
ALR.
- Validity and effect of statutes exacting filing fees from candidates for public office, 89 A.L.R.2d 864.
