O.C.G.A. § 21-2-2 (2019)
Definitions
As used in this chapter, the term: (.1) “Activities of daily living” includes eating, toileting, grooming, dressing, shaving, transferring, and other personal care services. (.2) “Attendant care services” means services and supports furnished to an individual with a physical disability, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily living, and health related functions through hands-on assistance, supervision, or cuing. (1) “Ballot” means “official ballot” or “paper ballot” and shall include the instrument, whether paper, mechanical, or electronic, by which an elector casts his or her vote. (2) “Ballot marking device” means a pen, pencil, or similar writing tool, or an electronic device designed for use in marking paper ballots in a manner that is detected as a vote so cast and then counted by ballot scanners. (2.1) “Ballot scanner” means an electronic recording device which receives an elector’s ballot and tabulates the votes on the ballot by its own devices, also known as a “tabulating machine.” (3) “Call” or “the call,” as used in relation to special elections or special primaries, means the affirmative action taken by the responsible public officer to cause a special election or special primary to be held. The date of the call shall be the date of the first publication in a newspaper of appropriate circulation of such affirmative action. (3.1) “Campaign material” means any newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter referring to: (A) A candidate whose name appears on the ballot in a primary or election; (B) A referendum which appears on the ballot in a primary or election; or (C) A political party or body which has a nominee or nominees on the ballot in a primary or election. Campaign material shall not include any written or printed matter that is used exclusively for the personal and private reference of an individual elector during the course of voting.
ELECTIONS & PRIMARIES
(4) “Custodian” means the person charged with the duty of testing and preparing voting equipment for the primary or election and with instructing the poll officers in the use of same. (4.1) “Direct recording electronic” or “DRE” voting equipment means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote. Such term shall not encompass ballot marking devices or electronic ballot markers. (5) “Election” ordinarily means any general or special election and shall not include a primary or special primary unless the context in which the term is used clearly requires that a primary or special primary is included. (6) “Election district” is synonymous with the terms “precinct” and “voting precinct.” (7) “Elector” means any person who shall possess all of the qualifications for voting now or hereafter prescribed by the laws of this state, including applicable charter provisions, and shall have registered in accordance with this chapter. (7.1) “Electronic ballot marker” means an electronic device that does not compute or retain votes; may integrate components such as a ballot scanner, printer, touch screen monitor, audio output, and navigational keypad; and uses electronic technology to independently and privately mark a paper ballot at the direction of an elector, interpret ballot selections, communicate such interpretation for elector verification, and print an elector verifiable paper ballot. (8) “General election” means an election recurring at stated intervals fixed by law or by the respective municipal charters; and the words “general primary” mean a primary recurring at stated intervals fixed by law or by the respective municipal charters. (9) “Health related functions” means functions that can be delegated or assigned by licensed health care professionals under state law to be performed by an attendant. (10) “Independent” means a person unaffiliated with any political party or body and includes candidates in a special election for a partisan office for which there has not been a prior special primary. (11) “Managers” means the chief manager and the assistant managers required to conduct primaries and elections in any precinct in accordance with this chapter. (12) “Municipal office” means every municipal office to which persons can be elected by a vote of the electors under the laws of this state and the respective municipal charters.
(13) “Municipality” means an incorporated municipality. (14) “Nomination” means the selection, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election. (15) “November election” means the general election held on the Tuesday next following the first Monday in November in each even-numbered year. (16) “Numbered list of voters” means one or more sheets of uniform size containing consecutively numbered blank spaces for the insertion of voters’ names at the time of and in the order of receiving their ballots or number slips governing admissions to the voting machines. (17) “Oath” shall include affirmation. (18) “Official ballot” means a ballot, whether paper, mechanical, or electronic, which is furnished by the superintendent or governing authority in accordance with Code Section 21-2-280, including paper ballots that are read by ballot scanners. (19) “Official ballot label” means a ballot label prepared in accordance with Article 9 of this chapter and delivered by the superintendent to the poll officers in accordance with Code Section 21-2-328. (19.1) “Optical scanning voting system” means a system employing paper ballots on which electors cast votes with a ballot marking device or electronic ballot marker after which votes are counted by ballot scanners. (20) “Paper ballot” or “ballot” means the forms described in Article 8 of this chapter. (21) “Party nomination” means the selection by a political party, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election. (22) Reserved. (23) “Political body” or “body” means any political organization other than a political party. (24) “Political organization” means an affiliation of electors organized for the purpose of influencing or controlling the policies and conduct of government through the nomination of candidates for public office and, if possible, the election of its candidates to public office, except that the term “political organization” shall not include a “subversive organization” as defined in Part 2 of Article 1 of Chapter 11 of Title 16, the “Sedition and Subversive Activities Act of 1953.”
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(25) “Political party” or “party” means any political organization which at the preceding: (A) Gubernatorial election nominated a candidate for Governor and whose candidate for Governor at such election polled at least 20 percent of the total vote cast in the state for Governor; or (B) Presidential election nominated a candidate for President of the United States and whose candidates for presidential electors at such election polled at least 20 percent of the total vote cast in the nation for that office. (26) “Poll officers” means the chief manager, assistant managers, and clerks required to conduct primaries and elections in any precinct in accordance with this chapter. (27) “Polling place” means the room provided in each precinct for voting at a primary or election. (28) “Precinct” is synonymous with the term “voting precinct” and means a geographical area, established in accordance with this chapter, from which all electors vote at one polling place. (29) “Primary” means any election held for the purpose of electing party officers or nominating candidates for public offices to be voted for at an election. (30) “Public office” means every federal, state, county, and municipal office to which persons can be elected by a vote of the electors under the laws of this state or the respective municipal charters, except that the term shall not include the office of soil and water conservation district supervisor. (31) “Question” means a brief statement of such constitutional amendment, charter amendment, or other proposition as shall be submitted to a popular vote at any election. (32) “Residence” means domicile. (32.1) “Scanning ballot” means a printed paper ballot designed to be marked by an elector with a ballot marking device or electronic ballot marker or a blank sheet of paper designed to be used in a ballot marking device or electronic ballot marker, which is then inserted for casting into a ballot scanner. (33) “Special election” means an election that arises from some exigency or special need outside the usual routine. (34) “Special primary” means a primary that arises from some exigency or special need outside the usual routine. (35) “Superintendent” means:
(A) Either the judge of the probate court of a county or the county board of elections, the county board of elections and registration, the joint city-county board of elections, or the joint city-county board of elections and registration, if a county has such; (B) In the case of a municipal primary, the municipal executive committee of the political party holding the primary within a municipality or its agent or, if none, the county executive committee of the political party or its agent; (C) In the case of a nonpartisan municipal primary, the person appointed by the proper municipal executive committee; (D) In the case of a municipal election, the person appointed by the governing authority pursuant to the authority granted in Code Section 21-2-70; and (E) In the case of the State Election Board exercising its powers under subsection (f) of Code Section 21-2-33.1, the individual appointed by the State Election Board to exercise the power of election superintendent. (36) “Swear” shall include affirm. (37) “Violator” means any individual, partnership, committee, association, corporation, limited liability company, limited liability partnership, professional corporation, trust, enterprise, franchise, joint venture, political party, political body, candidate, campaign committee, political action committee or any other political committee or business entity, or any governing authority that violates any provision of this chapter. (38) Reserved. (39) “Voter” is synonymous with the term “elector.” (40) “Voting machine” is a mechanical device on which an elector may cast a vote and which tabulates those votes by its own devices and is also known as a “lever machine.” (41) “Write-in ballot” means the paper or other material on which a vote is cast for persons whose names do not appear on the official ballot or ballot labels.
History
Code 1933, § 34-103, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 1; Ga. L. 1978, p. 1004, §§ 1, 2; Ga. L. 1979, p. 964, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1984, p. 696, § 1;
Ga. L. 1988, p. 964, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1994, p. 279, § 1; Ga. L. 1997, p. 590, § 1; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 1, 2, 25, 26; Ga. L. 2001, Ex. Sess., p. 325, § 1; Ga. L. 2002, p. 598, §§ 1-1, 2-1; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p.
ELECTIONS & PRIMARIES
517, § 1; Ga. L. 2005, p. 253, § 1/HB 244; Ga. L. 2006, p. 888, § 1/HB 1435; Ga. L. 2010, p. 914, § 1/HB 540; Ga. L. 2016, p. 173, § 1/SB 199; Ga. L. 2019, p. 7, § 1/HB 316; Ga. L. 2021, p. 14, § 3/SB 202; Ga. L. 2022, p. 352, § 21/HB 1428. The 2021 amendment, effective March 25, 2021, deleted “and” at the end of subparagraph (35)(C), substituted “; and” for a period at the end of subparagraph (35)(D), and added subparagraph (35)(E). The 2022 amendment, effective May 2, 2022, part of an Act to revise, modernize, and correct the Code, substituted “devices,” for “devices;” in paragraph (2.1); and substituted “and navigational” for “and a navigational” in paragraph (7.1).
Annotations
Cross references. District supervisors; election procedure for elected supervisors, § 2-6-30. Probate court’s authority to perform duties relating to elections, § 15-9-30. Editor’s notes. For application of this statute in 2020 and 2021, see Executive Orders 08.15.20.01, 08.31.20.02, 09.15.20.01, 09.30.20.02, 10.15.20.01, 10.30.20.02, 11.13.20.01, 11.30.20.02, 12.08.20.01, 12.30.20.02, 01.15.21.01, 01.29.21.02, 02.15.21.01, 02.26.21.02, 03.12.21.01, 03.31.21.03, 04.30.21.01, and 05.28.21.02. Ga. L. 2021, p. 14, § 1/SB 202, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Election Integrity Act of 2021.”’ Ga. L. 2021, p. 14, § 2/SB 202, not codified by the General Assembly, provides: “The General Assembly finds and declares that: “(1) Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter suppression and many electors concerned about allegations of rampant voter fraud; “(2) Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election; “(3) The stress of the 2020 elections, with a dramatic increase in absentee-by-
mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence; “(4) The changes made in this legislation in 2021 are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in Georgia by promoting uniformity in voting. Several examples will help explain how these goals are achieved; “(5) The broad discretion allowed to local officials for advance voting dates and hours led to significant variations across the state in total number of hours of advance voting, depending on the county. More than 100 counties have never offered voting on Sunday and many counties offered only a single day of weekend voting. Requiring two Saturday voting days and two optional Sunday voting days will dramatically increase the total voting hours for voters across the State of Georgia, and all electors in Georgia will have access to multiple opportunities to vote in person on the weekend for the first time; “(6) Some counties in 2020 received significant infusions of grant funding for election operations, while other counties received no such funds. Promoting uniformity in the distribution of funds to election operations will boost voter confidence and ensure that there is no political advantage conferred by preferring certain counties over others in the distribution of funds; “(7) Elections in Georgia are administered by counties, but that can lead to problems for voters in counties with dysfunctional election systems. Counties with long-term problems of lines, problems with processing of absentee ballots, and other challenges in administration need accountability, but state officials are limited in what they are able to do to address those problems. Ensuring there is a mechanism to address local election problems will promote voter confidence and meet the goal of uniformity; “(8) Elections are a public process and public participation is encouraged by all
involved, but the enthusiasm of some outside groups in sending multiple absentee ballot applications in 2020, often with incorrectly filled-in voter information, led to significant confusion by electors. Clarifying the rules regarding absentee ballot applications will build elector confidence while not sacrificing the opportunities for electors to participate in the process; “(9) The lengthy absentee ballot process also led to elector confusion, including electors who were told they had already voted when they arrived to vote in person. Creating a definite period of absentee voting will assist electors in understanding the election process while also ensuring that opportunities to vote are not diminished, especially when many absentee ballots issued in the last few days before the election were not successfully voted or were returned late; “(10) Opportunities for delivering absentee ballots to a drop box were first created by the State Election Board as a pandemic response. The drop boxes created by rule no longer existed in Georgia law when the emergency rules that created them expired. The General Assembly considered a variety of options and constructed a system that allows the use of drop boxes, while also ensuring the security of the system and providing options in emergency situations; “(11) The lengthy nine-week runoffs in 2020 were exhausting for candidates, donors, and electors. By adding ranked choice voting for military and overseas voters, the run-off period can be shortened to a more manageable period for all involved, easing the burden on election officials and on electors; “(12) Counting absentee ballots in 2020 took an incredibly long time in some counties. Creating processes for early processing and scanning of absentee ballots will promote elector confidence by ensuring that results are reported quickly; “(13) The sanctity of the precinct was also brought into sharp focus in 2020, with many groups approaching electors while they waited in line. Protecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence;
“(14) Ballot duplication for provisional ballots and other purposes places a heavy burden on election officials. The number of duplicated ballots has continued to rise dramatically from 2016 through 2020. Reducing the number of duplicated ballots will significantly reduce the burden on election officials and creating bipartisan panels to conduct duplication will promote elector confidence; “(15) Electors voting out of precinct add to the burden on election officials and lines for other electors because of the length of time it takes to process a provisional ballot in a precinct. Electors should be directed to the correct precinct on election day to ensure that they are able to vote in all elections for which they are eligible; “(16) In considering the changes in 2021, the General Assembly heard hours of testimony from electors, election officials, and attorneys involved in voting. The General Assembly made significant modifications through the legislative process as it weighed the various interests involved, including adding further weekend voting, changing parameters for outof-precinct voting, and adding transparency for ballot images; and “(17) While each of the changes in this legislation in 2021 stands alone and is severable under Code Section 1-1-3, the changes in total reflect the General Assembly’s considered judgment on the changes required to Georgia’s election system to make it ‘easy to vote and hard to cheat,’ applying the lessons learned from conducting an election in the 2020 pandemic.” Administrative rules and regulations. Calls for primaries and elections, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Dates of Primaries and Elections, § 183-1-8-.01. Definition of vote, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Returns of Primaries and Elections, § 1831-15-.02. Law reviews. For article, “The Chevron Two-Step in Georgia’s Administrative Law,” see 46 Ga. L. Rev. 871 (2012).
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For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).
For article, “SB 202: Revisions to Georgia’s Election and Voting Procedures,” see 38 Ga. St. U.L. Rev. 105 (2021).
JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION COUNTY REGISTRAR ELECTOR POLITICAL BODY RESIDENCE SPECIAL ELECTION General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, § 36, former Code 1933, §§ 34-101 et seq., and 34A-101, and former Code Section 21-3-2 are included in the annotations for this Code section. County Registrar County registrar is not prohibited from entering a municipal election because the restriction on municipal registrars under former Code 1933, § 34A103 does not govern county registrars. Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108, 1976 Ga. App. LEXIS 2145 (1976) (decided under former Code 1933, § 34-101 et seq.). Elector An elector must be a living person. Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905, 1968 Ga. App. LEXIS 1361 (1968). Political Body Citizens Party is a “political body” under O.C.G.A. § 21-2-2(19) (see now O.C.G.A. § 21-2-2(23)). Libertarian Party of Georgia v. Harris, 644 F. Supp. 602, 1986 U.S. Dist. LEXIS 21463 (N.D. Ga. 1986). Residence Question of domicile is for jury. - The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined
by the court except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92, 1977 Ga. App. LEXIS 1674 (1977). Change of domicile necessary for change of residence. - There must be either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92, 1977 Ga. App. LEXIS 1674 (1977). If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, the person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92, 1977 Ga. App. LEXIS 1674 (1977). Maintenance of alternate abode not necessarily change in domicile. - One may, for purposes of convenience, maintain a residence at a place not intended as a permanent abode without affecting any change in legal domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92, 1977 Ga. App. LEXIS 1674 (1977). Requirements as to domicile. - See Avery v. Bower, 170 Ga. 202, 152 S.E. 239, 1930 Ga. LEXIS 420 (1930) (decided under former Code 1910, § 36). Candidate improperly deemed ineligible based on residency. - In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of
Residence (Cont’d)
Special Election
O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate’s residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62, 2008 Ga. LEXIS 854 (2008).
County school board referendum. - “Special election” encompasses a county school board referendum. Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337, 1984 Ga. LEXIS 661 (1984).
OPINIONS OF THE ATTORNEY GENERAL ANALYSIS GENERAL CONSIDERATIONS ELECTION DISTRICT GENERAL ELECTION NUMBERED LIST OF VOTERS POLLING PLACE POLL OFFICERS RESIDENCE SEPARATE PRECINCTS SPECIAL ELECTION General Considerations
Polling Place
Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-101 et seq., and former Code Section 21-3-2 are included in the annotations for this Code section.
Voting from automobile not permitted. - The Election Code does not contemplate voting from automobiles. An elector who is unable to go to the polls should vote by absentee ballot. 1965-66 Op. Att’y Gen. 66-182. Establishment of polling places. - The governing authority of a municipality is not required to establish a polling place in each district from which a candidate is elected to office, but must establish a polling place in each precinct in the municipality. 1985 Op. Att’y Gen. No. U85-14.
Election District Having two or more polling places within one election district (now precinct) is not authorized by the Georgia Election Code. 1968 Op. Att’y Gen. No. 68-63 (decided under former Code 1933, § 34-101 et seq.). General Election Office created too late for general election. - Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att’y Gen. No. U70-120. Numbered List of Voters Persons who vote by absentee ballot must be included on a “numbered list of voters”. 1971 Op. Att’y Gen. No. U71-127.
Poll Officers Municipal official may be poll officer. - No provision of the Georgia Election Code prohibits an elected official of a municipality from serving as a poll officer in a state or national election. 1976 Op. Att’y Gen. No. U76-13. Residence Business address does not fulfill residency requirement. - A business address, in and of itself, does not fulfill residency requirements, and an otherwise qualified elector may vote in the election
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district containing the business address only when such district also contains the residence as defined by the Election Code. 1968 Op. Att’y Gen. No. 68-293. Where a person running for office is required to be a resident of the district from which that person is running, the person’s business address, in and of itself, would not be sufficient to fulfill the residency requirement. 1968 Op. Att’y Gen. No. 68-293. Person who moves away from a county and makes that person’s home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att’y Gen. No. 65-56. Wife may register even though not domiciled within state. - A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. 1975 Op. Att’y Gen. No. 75-77. Separate Precincts Each ward should be separate election precinct where councilmen elected by ward. - If a municipality requires that each of its councilmen be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district (now precinct). 1969 Op. Att’y Gen. No. 69-399. Special Election An election to fill the unexpired
term of an office appears to be a “special election” under O.C.G.A. § 21-2-2(28) (see paragraph (33)) in that it arises outside the usual routine. 1986 Op. Att’y Gen. No. 86-26. Special election for new elective office. - Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att’y Gen. No. U70-120. Special election occurs when a superior court judge has died, and a successor is to be selected. 1970 Op. Att’y Gen. No. U70-144. Date of the call of a special election is the date of its first publication in a newspaper of appropriate circulation. 1980 Op. Att’y Gen. No. 80-27. County school board is empowered to authorize calling of a school bond referendum which the county election superintendent shall then call by publishing the appropriate notice. 1985 Op. Att’y Gen. No. 85-18. Registration for special election. - The Election Code does not provide for special registration, but rather for general registration from which a list is compiled to vote in special elections. Therefore, any person who has registered to vote by the close of the fifth day (excluding Sundays or holidays) after the call of a bond election is entitled to vote in that election. 1965-66 Op. Att’y Gen. No. 66-73.
RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Elections, §§ 1, 8, 22, 25, 27, 97, 98, 191 et seq. 26 Am. Jur. 2d, Elections, §§ 218 et seq., 270, 283 et seq., 305, 329, 330, 331. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 1 et seq.. Am. Jur. Pleading and Practice Forms. 9 Am. Jur. Pleading and Practice Forms, Elections, § 1. C.J.S. 29 C.J.S., Elections, §§ 36, 38, 39, 136 et seq., 144, 149 et seq., 177, 193, 258, 260,
305 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq., 258, 390 et seq. ALR. Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162. Validity of write-in vote where candidate’s surname only is written in on ballot, 86 A.L.R.2d 1025. Residence or domicil of student or teacher for purpose of voting, 98 A.L.R.2d 488; 44 A.L.R.3d 797.