TITLE 21 ELECTIONS

Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.

ARTICLE 4 SELECTION AND QUALIFICATION OF CANDIDATES AND PRESIDENTIAL ELECTORS

21-2-134. Withdrawal, death, or disqualification of candidate for office; return of qualifying fee; nomination certificate.

1. 1. A candidate nominated at any primary election or nominated by means other than a primary may withdraw as a candidate at the ensuing general election by filing a notarized affidavit of withdrawal with the Secretary of State, if nominated for a state office; the county superintendent, if nominated for a county office; or the municipal superintendent, if nominated for a municipal office. If the ballots have been printed, the Secretary of State, the county superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted. No vacancy on the ballot for a general election or for a nonpartisan election shall be filled except by reason of the death or disqualification of a candidate or the withdrawal of a candidate as provided in paragraph (2) of subsection (b) of this Code section.
   2. A candidate in a general or special primary may withdraw as a candidate after qualifying but prior to the date of the general or special primary by filing a notarized affidavit of withdrawal with the Secretary of State, if qualifying for a state office; the county election superintendent, if qualifying for a county office; or the municipal superintendent, if qualifying for a municipal office. A candidate of a political body or an independent candidate in a general or special election may withdraw as a candidate after qualifying but prior to the date of the general or special election by filing a notarized affidavit of withdrawal with the Secretary of State, if qualifying for a state office; the county election superintendent, if qualifying for a county office; or the municipal superintendent, if qualifying for a municipal office. If the ballots have been printed, the Secretary of State, the county election superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted.
2. 1. Any vacancy in any party nomination filled by a primary created by reason of the death or disqualification of a candidate occurring after nomination may be filled in the following manner:
      1. In the case of a public office to be filled by the vote of the electors of this entire state in which the vacancy occurs after nomination but at least ten days prior to the election to fill the public office sought by such candidate, the vacancy may be filled by a substitute nomination made by a convention composed of the delegates of the county executive committee of such party in each county of this state. Immediately upon such vacancy occurring, the state executive committee or a subcommittee thereof appointed for the purpose shall fix a time within six days of the occurrence of such vacancy; shall select and provide a convenient place for the holding of such a convention, which shall be open to the public; and shall give notice thereof to the chairperson and secretary of each county executive committee. Each county executive committee shall be entitled to select the number of delegates apportioned to it by the state executive committee; provided, however, that each county executive committee shall be entitled to select at least one delegate. Such apportionment of delegates among the counties shall be based substantially upon the population of this state according to the last United States decennial census or upon the number of votes cast within this state for the party's candidates for presidential electors in the last presidential election. A two-thirds' majority of the delegates of such county executive committees shall constitute a quorum for the transaction of business, and a majority of the delegates present while a quorum exists shall be sufficient to fill such nomination by a substitute nomination. Each delegate shall have one vote, and all votes taken shall be by a roll-call vote. The records of the convention shall be filed with the state executive committee. In the event such a vacancy in party nomination shall occur during the ten days preceding the day of such an election, such vacancy may be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose;
      2. In the case of a public office for which a candidate must qualify with the state executive committee, except a public office to be filled by the vote of the electors of the entire state, the nomination may remain vacant or may be filled at the decision of the state executive committee of the party. The decision whether to fill such vacancy shall be made by the state executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the state executive committee shall be immediately transmitted to the Secretary of State. If the Secretary of State has not been notified of the decision of the state executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the state executive committee has decided not to fill the vacancy. If the state executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the state executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose;
      3. In the case of a public office for which a candidate must qualify with the county executive committee, the nomination may remain vacant or may be filled at the decision of the state executive committee of the party. The state executive committee or a subcommittee thereof may determine on its own whether to fill the vacancy but is authorized, though not required, to seek the recommendation of any of the following persons for the purpose of determining whether to fill the vacancy: the county executive committee, if any; persons from the area who are active in the party; persons who are present or former officials of the party; persons who presently hold political office or have sought political office as candidates of the party; or such other persons as the committee or subcommittee may desire to consult. The decision whether to fill such vacancy shall be made by the state executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the state executive committee shall be immediately transmitted to the county superintendent. If the county superintendent has not been notified of the decision of the state executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the state executive committee has decided not to fill the vacancy. If the state executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the state executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose. The state executive committee or a subcommittee thereof may determine on its own who shall fill the vacancy as a substitute nominee but is authorized, though not required, to seek the recommendation of any of the following persons for the purpose of determining the most suitable substitute nomination: the county executive committee, if any; persons from the area who are active in the party; persons who are present or former officials of the party; persons who presently hold political office or have sought political office as candidates of the party; or such other persons as the committee or subcommittee may desire to consult; and
      4. In the case of a public office for which a candidate must qualify with the municipal executive committee, the nomination may remain vacant or may be filled at the decision of the municipal executive committee of the party. The decision whether to fill such vacancy shall be made by the municipal executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the municipal executive committee shall be immediately transmitted to the municipal superintendent. If the municipal superintendent has not been notified of the decision of the municipal executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the municipal executive committee has decided not to fill the vacancy. If the municipal executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the municipal executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the municipal executive committee or a subcommittee thereof appointed for that purpose.
   2. Any vacancy which occurs in any party nomination filled by a primary and which is created by reason of the withdrawal of a candidate 60 or more days prior to the date of the election shall be filled as follows:
      1. By the person seeking nomination in such primary who received the second highest total of votes cast in such primary for that office, provided that such person received not less than 40 percent of the votes cast for that office; or
      2. In the event no person received the vote total required under subparagraph (A) of this paragraph, such vacancy shall be filled in the same manner as provided in subparagraph (A), (B), (C), or (D) of paragraph (1) of this subsection, as appropriate.
   3. Any vacancy which occurs in any party nomination filled by a primary and which is created by reason of the withdrawal of a candidate less than 60 days prior to the date of the election shall not be filled. If the ballots have been printed, the Secretary of State, the county superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted.
3. Any vacancy occurring in any body nomination or party nomination filled by means other than by primary, by reason of the withdrawal, death, or disqualification of any candidate after nomination, may be filled by a substitute nomination made by such committee as is authorized by the rules and regulations of the party or body to make nominations in the event of vacancies on the party or body ticket.
4. If the withdrawal, death, or disqualification of a candidate after nomination for any public office would at the time of such event result in there being no candidate for that office on the ballot in the general election, then the vacancy shall be filled by a special primary which shall be open only to the party of such deceased, withdrawn, or disqualified candidate and the office shall be filled by a special election as provided in Code Section 21-2-540.
5. The qualifying fee shall be returned to the candidate in the event such candidate withdraws, dies, or is disqualified prior to the close of the qualifying period; however, after the close of the qualifying period, the qualifying fee shall not be returned to the candidate for any reason including withdrawal, death, or disqualification; provided, however, that, if such disqualification is the result of an error or negligence of the officer with whom such candidate qualified and not the result of any action of the candidate and such error or negligence is verified in writing by the Secretary of State, such fee may be refunded to the candidate.
6. Upon the making of any such substitute nomination, in the manner prescribed in subsection (b) or (c) of this Code section, it shall be the duty of the chairperson and secretary of the convention or committee making the nomination to file with the Secretary of State or with the superintendent, as the case may be, a nomination certificate which shall be signed by such chairperson and secretary. Every such certificate of nomination shall be sworn to by the chairperson and secretary before an officer qualified to administer oaths.

(Code 1933, § 34-1003, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 871, § 6; Ga. L. 1969, p. 329, §§ 9, 10; Ga. L. 1970, p. 347, § 13; Ga. L. 1978, p. 781, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1985, p. 1430, § 1; Ga. L. 1987, p. 1360, § 7; Ga. L. 1989, p. 643, § 3; Ga. L. 1994, p. 1406, § 3; Ga. L. 1995, p. 408, § 1; Ga. L. 1996, p. 26, § 1; Ga. L. 1997, p. 590, § 10; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2001, p. 269, § 7; Ga. L. 2005, p. 253, § 16/HB 244; Ga. L. 2008, p. 781, § 7/HB 1112; Ga. L. 2012, p. 995, § 7/SB 92.)

The 2008 amendment, effective July 1, 2008, in paragraph (a)(1), deleted the former second sentence, which read: "The qualifying fee shall not be returned to the candidate.", in the present second sentence, substituted "Secretary of State, the county superintendent, or the municipal" for "Secretary of State or the county or municipal", and, in the fourth sentence, substituted "such candidate" for "the candidate"; in paragraph (a)(2), deleted the former third sentence, which read: "The qualifying fee shall not be returned to the candidate.", and, in the last sentence, substituted "such candidate" for "the candidate"; in subparagraph (b)(1)(A), in the first sentence, substituted "this entire state" for "the entire state" and substituted "this state" for "the state", substituted "this state" for "the state" twice in the fourth sentence, and inserted a comma in the sixth sentence; in paragraph (b)(3), deleted the former second sentence, which read: "The qualifying fee shall not be returned to the candidate." and in the present second sentence, substituted "Secretary of State, the county superintendent, or the municipal" for "Secretary of State or the county or municipal", and, in the last sentence, substituted "such candidate" for "the candidate"; and substituted the present provisions of subsection (e) for "Reserved.".

The 2012 amendment, effective July 1, 2012, added "; provided, however, that, if such disqualification is the result of an error or negligence of the officer with whom such candidate qualified and not the result of any action of the candidate and such error or negligence is verified in writing by the Secretary of State, such fee may be refunded to the candidate" at the end of subsection (e).