O.C.G.A. § 21-2-170 (2019)

Annotations

JUDICIAL DECISIONS Percentage requirement not unconstitutional. - As a matter of law, Georgia’s requirement of five percent of the signatures of eligible voters on nominating petitions is neither unreasonable nor does it constitute invidious, intentional, or purposeful discrimination. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035, 1970 U.S. Dist. LEXIS 11250 (N.D. Ga. 1970), aff’d, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971). Georgia’s five percent petition requirement does not violate the United States Constitution. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971). Georgia’s requirement under O.C.G.A. § 21-2-170(b) that a candidate for federal office could appear on an election ballot if the candidate obtained signatures in a nominating petition from at least five percent of the registered voters was not a substantive qualification, but a permissible procedural regulation of the manner in which candidates could obtain ballot placement; therefore, the requirement did not violate the Qualifications Clause of the United States Constitution. Cartwright v. Barnes, 304 F.3d 1138, 2002 U.S. App. LEXIS 18488 (11th Cir. 2002), cert. denied, 538 U.S. 908, 123 S. Ct. 1500, 155 L. Ed. 2d 229, 2003 U.S. LEXIS 2018 (2003). Percentage requirement unconstitutional. - Summary judgment was granted to a minor political party, its candidates, and its registered voters on a claim that Georgia’s ballot access require-

ments for congressional races, including a five percent petition signature requirement, violated their First and Fourteenth Amendment rights where the evidence showed that even reasonably diligent political-body candidates who had expended considerable time and resources failed to access Georgia’s ballots; thus Georgia’s laws relating to congressional races had functionally frozen the status quo, and although the state had a legitimate interest in ensuring a significant modicum of support to screen out frivolous candidates and avoid ballot confusion, the State offered no justification for the higher petition signature requirement for non-statewide office candidates. Cowen v. Raffensperger, 537 F. Supp. 3d 1327, 2021 U.S. Dist. LEXIS 181544 (N.D. Ga. 2021), rev’d in part, aff’d, 22 F.4th 1227, 2022 U.S. App. LEXIS 390 (11th Cir. 2022). Preclearance of 1986 amendments. - Plaintiff political body claimed that expecting it to begin a signature drive with the possibility that the 1986 amendments to this title might not be precleared and therefore the possibility that it would have to obtain 2.5 percent of the eligible voters’ signatures instead of 1 percent “demands politically absurd behavior by movants,” and was unconstitutionally burdensome was meritless since the convention requirement and the notice of candidacy requirement were not in doubt. Libertarian Party of Georgia v. Harris, 644 F. Supp. 602, 1986 U.S. Dist. LEXIS 21463 (N.D. Ga. 1986) (see also notes to §§ 21-2-130, 21-2-132, and 21-2-187). Georgia imposes no suffocating restrictions whatever upon the free circu-

ELECTIONS & PRIMARIES

lation of nominating petitions. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971). Rights of independent candidates and small or newly formed political organizations generally. - So far as the election laws of this state are concerned, independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may confine themselves to an appeal for write-in votes. Or they may seek, over a six-month period, the signatures of five percent of the eligible electorate for the office in question. If they choose the latter course, the way is open for this state imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). Signing more than one petition. - A voter may sign a petition even though the voter has signed others. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971). Signer need not state intention to vote for that candidate. - Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971); McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). Signers may participate in primaries. - A person who has previously voted in a party primary is fully eligible to sign a petition. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971); McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981).

A voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971); McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). Persons not registered at time of previous election may sign. - A person who was not even registered at the time of the previous election is fully eligible to sign the nominating petition. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971); McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). No signature on a nominating petition need be notarized. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554, 1971 U.S. LEXIS 24 (1971); McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981). Circulator and signer of petition may not notarize affidavits. - A notary who circulated part of a nominating petition and also signed the petition was disqualified from notarizing circulators’ affidavits on the petition and it was proper to disqualify those pages with affidavits notarized by such person. Poppell v. Lanier, 264 Ga. 473, 448 S.E.2d 194, 1994 Ga. LEXIS 778 (1994). Lack of notarization. - County board of election (BOE) members were entitled to qualified immunity in their individual capacities against a candidate’s 42 U.S.C. § 1983 claims for the BOE’s challenge to the candidate’s nomination petition because a reasonable official would not have believed that compliance with the requirements of O.C.G.A. § 212-171 in response to the facial deficiency of the candidate’s petition constituted an unlawful action in violation of the candidate’s rights; the petition did not comply with O.C.G.A. § 21-2-170 because it lacked the necessary notarization, rendering it facially defective, and given this

defect, § 21-2-171 required the BOE to disregard the non-conforming pages of the petition and authorized it to hold a hearing in connection therewith. Johnson v. Randolph County, 301 Ga. App. 265, 687 S.E.2d 223, 2009 Ga. App. LEXIS 1363 (2009). Lawsuit seeking name placed on ballot properly dismissed. - Trial court properly dismissed a nominee’s lawsuit seeking to have the nominee’s name placed upon the ballot for the 2016 general election as an independent candidate for President of the United States because the notices of candidacy were submitted 11 days after the deadline set forth in O.C.G.A. § 21-2-132(d)(1) and the nominee failed to have enough signatures verified, thus, the nominee was not entitled to have the nominee’s name placed on the

ballot. De La Fuente v. Kemp, 300 Ga. 79, 793 S.E.2d 89, 2016 Ga. LEXIS 712 (2016). Write-in votes. - The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d) (see now subsections (d) and (e)), 21-2170(b) and (g), 21-2-171(a), 21-2-172, and 21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a political body printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the voter’s choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308, 1981 U.S. App. LEXIS 19337 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165, 1981 U.S. LEXIS 3671 (1981).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 34A910 are included in the annotations for this Code section. Purpose of this section is to prevent persons with little or no following encumbering the official ballot. 1948-49 Ga. Op. Att’y Gen. 157. Nominating petition is necessary only if the municipality’s charter or ordinance so requires it, and it must be in the form prescribed by the law. 1971 Op. Att’y Gen. No. 71-185 (decided under former Code 1933, § 34A-910). Signature must be same as on voter registration list. - It is essential to the validity of a signature that it appear on the petition in a manner identical to that in which it appears on the voter registration list. 1962 Ga. Op. Att’y Gen. 205 (decided under former Code 1933, § 34A910). Invalid signature does not invalidate entire petition. - The overwhelming weight of authority seems to be that the invalidity of one or more signatures on a petition does not invalidate all others not subject to such infirmity. Similarly, fraudulent signatures do not invalidate the entire petition where there is no charge that the candidate personally was

in any way implicated in such fraud. 1962 Ga. Op. Att’y Gen. 205 (decided under former Code 1933, § 34A-910). “Last election.” - The language, “in the last election for the filling of the office the candidate is seeking,” contained in O.C.G.A. § 21-2-170(b), refers to the last election for the particular office sought by the candidate. 1990 Op. Att’y Gen. No. 90-6. Petition form may not be validly altered. - The form prescribed by the Secretary of State for the nominating petition of a candidate seeking to have the candidate’s name placed on the general election ballot cannot be altered by the candidate, and if altered sheets are included in the petition, the altered sheets would be eliminated as invalid without affecting the validity of the petition, provided the petition was otherwise valid. 1976 Op. Att’y Gen. No. U76-22. Valid signatures within 180 days of filing to be counted. - All signatures, otherwise proper, on a nomination petition signed thereon within 180 days of the last day for filing the petition, should be counted. 1965-66 Op. Att’y Gen. No. 66204 (decided under former Code 1933, § 34A-910). Deletion of names where petition contains names of electors from more

ELECTIONS & PRIMARIES

than one county. - Where a given sheet contained the names of eight Bibb County electors and two Jones County electors, it was permissible for the party to delete the names of the Jones County electors. Although former Code 1933, § 34-1011 (see now O.C.G.A. § 21-2-171(a)) provided that a petition must not contain “material alterations” without the consent of the signers, a deletion of a name would not violate that section, as it was obviously intended to prevent changes in names or addresses to keep improper signatures on a petition. 1965-66 Op. Att’y Gen. No. 66-56 (decided under former Code 1933, § 34A-910). Number of signatures needed when election district altered. - The General Assembly intends that when an election district has been newly created, or its boundaries changed, the number of signatures needed would be based on the number of electors in the new or altered district who were registered to vote in the

last election. 1968 Op. Att’y Gen. No. 68-231 (decided under former Code 1933, § 34A-910). Presidential electors for independent candidate. - An independent candidate for President of the United States may have the names of the candidate’s presidential electors placed on the general election ballot by the petition method; and the entire slate of presidential elector candidates for such individual shall be listed together on the same petition. 1979 Op. Att’y Gen. No. 79-38. Each sheet of a nomination petition should be numbered consecutively, beginning with number one, at the foot of each page; regardless of any control numbers which are used in the obtaining of signatures, the pages should be renumbered when submitted to the Secretary of State. 1965-66 Op. Att’y Gen. No. 66-56 (decided under former Code 1933, § 34A910).

RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, § 239 et seq. C.J.S. 29 C.J.S., Elections, § 193 et seq. ALR. Nonregistration as affecting one’s qualification as signer of petition for special election, submission of proposition, or nominating petition, 100 A.L.R. 1308. Constitutionality of election laws as regards nominations by petition or otherwise than by statutory convention or primary election, 146 A.L.R. 668.

Construction and application of Elections Clause of United States Constitution, U.S. Const. Art. I, § 4, cl.1, and state constitutional provisions concerning congressional elections, 34 A.L.R.6th 643. Validity, construction, and application of state statutes regulating or proscribing payment in connection with gathering signatures on nominating petitions for public office or initiative petitions, 40 A.L.R.6th 317.