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2018 Georgia Code 21-2-134 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 21-2-134 Case Law from Google Scholar Amendments to OCGA 21-2-134

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. 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of State, the county superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted.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.
    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).

Law reviews.

- For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

Notice of candidate's withdrawal.

- Evidence that the notices that a primary candidate withdrew were conspicuously placed in the polling was sufficient evidence that the notices were substantially in compliance with the requirements of O.C.G.A. § 21-2-134(a)(2) that notices be "conspicuous." Banker v. Cole, 278 Ga. 532, 604 S.E.2d 165 (2004).

When notices required by O.C.G.A. § 21-2-134(a)(2) that a candidate in a primary election withdrew did not state that votes for the withdrawn candidate would not be counted, the notices did not substantially comply with by O.C.G.A. § 21-2-134(a)(2), because both the fact of the candidate's withdrawal and the effect of voting for the withdrawn candidate had to be included in the notice. Banker v. Cole, 278 Ga. 532, 604 S.E.2d 165 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal from primary after qualifying deadline.

- If a qualified candidate withdraws from a primary to accept another appointment after the qualifying deadline, but before the primary is held, the party may not re-open qualifications for candidates in such primary. 1970 Op. Att'y Gen. No. U70-140.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 214 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 182, 183.

ALR.

- Power of political party or its officials to withdraw nominations, 155 A.L.R. 186.

Cases Citing O.C.G.A. § 21-2-134

Total Results: 4  |  Sort by: Relevance  |  Newest First

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Barrow v. Raffensperger (two Cases), 308 Ga. 660 (Ga. 2020).

Cited 24 times | Published | Supreme Court of Georgia | May 14, 2020

...In response, Beskin asserted that her case was not moot because, if the Secretary were ordered to reopen qualifying for Justice Blackwell’s office, she could withdraw from the election for Justice Bethel’s office and instead qualify for election to Justice Blackwell’s office, noting that OCGA § 21-2-134 (a) (2) allows candidates in a general primary to “withdraw as a candidate after qualifying but prior to the date of the general ....
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Harvey v. Meadows, 626 S.E.2d 92 (Ga. 2006).

Cited 18 times | Published | Supreme Court of Georgia | Jan 30, 2006 | 280 Ga. 166, 2006 Fulton County D. Rep. 294

...Credit Corp. v. Brooks, 242 Ga. 109, 118-119, 249 S.E.2d 596 (1978). [11] 242 Ga. 109, 249 S.E.2d 596. [12] 278 Ga. 532, 604 S.E.2d 165. [13] 242 Ga. at 114, 249 S.E.2d 596. [14] Id. at 119, 249 S.E.2d 596. [15] 278 Ga. 532, 604 S.E.2d 165. [16] OCGA § 21-2-134(a)(2)....
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Scott K. Camp v. Ryan Christopher Williams, 314 Ga. 699 (Ga. 2022).

Cited 11 times | Published | Supreme Court of Georgia | Sep 30, 2022

...See OCGA § 21-2-130 (dealing with the methods of “Qualification of candidates”: “Candidates may qualify for an election” by nomination, a notice of candidacy, special rules for presidential electors, or substitute nomination under OCGA § 21-2-134); OCGA § 15-10-22 (setting the qualifications of magistrates, including residence, age, citizenship, voter registration, high school diploma, and other qualifications imposed by local law); OCGA § 15-7-21 (setting the qualifications...
...(“No person elected on a write-in vote shall be eligible to hold office unless notice of his or her intention of candidacy was filed and 2 Several provisions use “qualified” as the past tense of “qualifying,” OCGA §§ 21-2-131 (c) (1); 21-2-132 (e) (5); 21-2-134 (e); 21-2-137; 21-2-138; 21- 2-153 (c) (1) (D), (d) (1); 21-2-153.1 (c), (e); 21-2-154 (a), (b); 21-2-155; 21-2-171 (a). Many others refer to the qualifying process with words like  “qualify,” OCGA §§ 21-2-9 (d); 21-2-130; 21-2-132 (d) (5), (j) (1); 21-2- 132.1 (b); 21-2-134 (b) (1) (B), (b) (1) (C), (b) (1) (D); 21-2-137; 21-2-153 (a) (1) (B), (b), (c), (f), (g) (1); 21-2-153.1 (a), (c); 21-2-157 (b); 21-2-214 (b); 21-2-217 (a); or  “qualifies,” OCGA §§ 21-2-131 (b) (1), (c) (3)-(5); 21-2-...
...ibility under certain circumstances — which, depending on the situation, is sometimes described in terms of ineligibility and sometimes in terms of disqualification. See OCGA §§ 21-2-8, 21-2-133 (d); 45-2-1 (ineligibility); OCGA §§ 21-2-8, 21-2-134 (d)-(e), 21-2-153 (d) (2) (disqualification).4 3 In other contexts, the Election Code sometimes uses the word “eligible” to refer to the mere potential to hold office, see OCGA §§ 21-2-153 (b) (2), (e) (7); 21-2-153.1 (d) (7)...
...(describing the general pathways to qualify for an election). And because Georgia law allows a political party to substitute one candidate for another only after the original candidate has secured the nomination, Williams could not qualify as a substitute candidate. See OCGA § 21-2-134 (a), (b) (1)....
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Banker v. Cole, 604 S.E.2d 165 (Ga. 2004).

Cited 9 times | Published | Supreme Court of Georgia | Oct 12, 2004 | 278 Ga. 532, 2004 Fulton County D. Rep. 3315

...In the election, Cole received 7,448 votes, Banker received 6,398 votes, and 1,817 votes were cast for Adams, who withdrew from the race on June 30, 2004, after ballots had been printed and absentee voting and early voting had begun. Pursuant to the provisions of OCGA § 21-2-134(a)(2), [1] which governs the procedure for withdrawal of candidates in primary elections, appellee Smith, Forsyth County Election Superintendent, caused notice of Adams's withdrawal to be posted in polling places....
...The trial court found prominence was adequately proved and the wording of the notice constituted substantial compliance with the statutory requirements, and ruled Banker had not shown any irregularity affecting a sufficient number of votes to place the result in doubt. 1. OCGA § 21-2-134(a)(2) requires notices of withdrawal of a candidate be "prominent," which means "[s]tanding out so as to catch the attention; conspicuous...." The New Shorter Oxford English Dictionary, 1993, p....
...he notices met the statutory standard of being "prominent" was not clearly erroneous and must be upheld. 2. Regarding the content of the notices posted in the polling places, the trial court found substantial compliance with the requirements of OCGA § 21-2-134(a)(2)....
...See also Hastings v. Wilson, 181 Ga. 305, 306-307, 182 S.E. 375 (1935). 3. Having concluded that substantial compliance is the applicable standard, the second question is whether the notices, as posted, substantially complied with the requirements of OCGA § 21-2-134(a)(2)....
...When there is actual compliance as to all matters of substance then mere technicalities of form or variations in the mode of expression should not be given the stature of non-compliance. General Elec. Credit Corp. v. Brooks, 242 Ga. 109, 118-119, 249 S.E.2d 596 (1978). OCGA § 21-2-134(a)(2) sets forth the notification required to be given to voters when the ballot is not reprinted following the withdrawal of a candidate in a primary election: "Prominent notices shall be posted in all polling places in which the name of...
...Given the potential for confusion regarding the legal effect of casting a vote for a candidate who has withdrawn, we conclude both pieces of information set out in the statute, the fact of withdrawal and the legal effect of voting for a withdrawn candidate must be included in the notice provided for in OCGA § 21-2-134(a)(2). Our conclusion in that regard is bolstered by consideration of the function of the notice. When a candidate withdraws from either a general election or a primary election after the ballots have been printed, OCGA § 21-2-134(a) gives the person responsible for the election two options: reprint the ballot omitting the name of the withdrawn candidate or post a notice stating the candidate has withdrawn and votes for the withdrawn candidate will be void and will not be counted....
...he ballots is not a viable option, the ballot given to the voters is, in effect, an irregular ballot because it includes the name of a candidate who is no longer running for the office. In that event, the second option, the notice prescribed by OCGA § 21-2-134(a), functions as a remedy for the irregular ballot....
...ndidate, but of the legal effect of voting for the withdrawn candidate. Since both parts of the notice provided for in the statute are essential to avoid confusion and to function as a remedy for an irregular ballot, substantial compliance with OCGA § 21-2-134(a) requires both parts be included....
...Appellee Smith, the county election superintendent, testified that early and absentee voting began on June 5, 2004, some 25 days before Adams withdrew, and approximately 800 absentee ballots were returned. The statute involved in this matter, OCGA § 21-2-134(a)(2), provides the notice of withdrawal "shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot ...," but makes no reference to absentee ballots....
...NOTES [1] "Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that the candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted." OCGA § 21-2-134(a)(2).