TITLE 21 ELECTIONS

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

ARTICLE 6 REGISTRATION OF VOTERS

21-2-228. Examination of electors' qualifications; subpoenas; notice and hearing; right of appeal.

The board of registrars of each county or municipality shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector of the county or municipality whose name is entered upon the list of electors and shall not be limited or estopped by any action previously taken.
For the purpose of determining the qualification or disqualification of applicants and electors, the board of registrars may, upon at least three days' notice, require the production of books, papers, and other material and, upon like notice, may subpoena witnesses. The board may swear any witness appearing before it. If the registrars shall differ among themselves upon any question coming before them, the concurrent votes of a majority of the registrars shall control.
The sheriff, any deputy sheriff, or any lawful constable of such county or peace officer of such municipality shall serve all summonses, notices, and subpoenas issued by such registrars and placed in the hands of any such official. Such official shall receive such compensation as is provided for like services in the superior court. In case of the refusal of any person subpoenaed to attend or testify, such fact shall be reported immediately by the registrars to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify; and, on failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as allowed and paid witnesses in civil actions in the superior court.
If the right of any person to remain on the list of electors is questioned by the registrars, they shall give such person at least three days' written notice of the date, time, and place of a hearing to determine such right which shall be served upon such person either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of this Code section for other notices.
If, after conducting a hearing, the registrars find that the elector is not qualified to remain on the list of electors, the registrars shall remove the name of such elector from the list of electors. The elector shall be notified of such decision in writing either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of this Code section for other notices.
An elector whose name is removed from the list of electors in accordance with this Code section shall have a right of appeal of such decision to the superior court of the county by filing a petition with the clerk of the superior court within ten days after the date of the decision of the registrars. A copy of such petition shall be served upon the registrars. Unless and until the decision of the registrars is reversed by the court, the decision of the registrars shall stand.

(Code 1981, §21-2-228, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 24; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Method of appeal from registration decisions, Ga. Const. 1983, Art. II, Sec. II, Para. I.

JUDICIAL DECISIONS

Appellate jurisdiction.

- Without a clear connection to a specific election, a challenge to a voter's qualifications brought under O.C.G.A. § 21-2-228 or O.C.G.A. § 21-2-229 does not come within the jurisdiction of the Supreme Court of Georgia over "cases of election contest," Ga. Const. 1983, Art. VI, Sec. VI, Para. II (2). To the extent that Jarrard v. Clayton County Bd. of Registrars, 425 S.E.2d 874 (1992), was decided as an election contest, it was overruled. Cook v. Board of Registrars, 291 Ga. 67, 727 S.E.2d 478 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions under former Code 1933, § 34-617 and former Code Sections 21-2-225 and 21-2-236 are included in the annotations for this Code section.

Removal of name based on receipt of returned notice.

- A registrar is not authorized to remove a person's name from the list of electors based on the registrar's receipt of a returned letter notifying such person of a hearing under former § 21-2-225. 1982 Op. Att'y Gen. No. 82-23 (decided under former Code Section21-2-225 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Although a registrar may well question voter eligibility based solely on returned mail from the voter's address of record, it is imperative that all reasonable measures be taken to maximize the possibility of receipt by the elector of the notice of hearing, e.g., mail forwarding. 1982 Op. Att'y Gen. No. 82-23 (decided under former Code Section 21-2-225 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Procedure for disqualification of convicted voter.

- As the Election Code does not establish a procedure for automatic disqualification of voters convicted of a crime involving moral turpitude, it is suggested that written notice be given to the elector as required by former Code 1933, § 34-617, or, if the list has already been prepared, the voter should be called upon to show cause why the voter's name should not be removed from the voters list. 1974 Op. Att'y Gen. No. 74-128 (decided prior to 1983 amendment of § 21-2-219; decided under former Code 1933, § 34-617 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Questioning of residence of elector proper.

- Inasmuch as the law clearly states that an elector be registered in the election district in which the elector resides, it would be proper for the board of registrars to question the qualifications of any elector whom the board believes to be residing outside the district in which such person is registered. 1968 Op. Att'y Gen. No. 68-220 (decided under former Code 1933, §§ 34-408, 34-603, 34-604 and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Person who moves away from a county and makes a home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Board of registrars has the right and duty to make changes in its records if it learns from voters' certificates of changes of names or addresses of voters. 1970 Op. Att'y Gen. No. U70-12 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Delivery of absentee ballot awaiting completion of proceedings.

- Where the registration card corresponding to an otherwise proper application for an absentee ballot is signed but is otherwise incomplete in some respect, until the completion of proceedings in accordance with former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627, the registrar may not refuse to deliver the absentee ballot unless the absence of information sought by the registration card on file gives rise to a question as to the applicant's identity. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Review of decision to remove name of elector from list.

- An elector whose name has been removed from the list of electors upon a challenge by a board of registrars after an administrative hearing is entitled to have that decision reviewed by a superior court. 1992 Op. Att'y Gen. No. 92-16 (decided under former Code Section 21-2-236 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 179 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 62, 63 et seq.

ALR.

- Nonregistration as affecting legality of votes cast by persons otherwise qualified, 101 A.L.R. 657.

Constitutionality of voter participation provisions for primary elections, 120 A.L.R.5th 125.

Validity of statute requiring proof and disclosure of information as condition of registration to vote, 48 A.L.R.6th 181.

Cases Citing O.C.G.A. § 21-2-228

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Cook v. Bd. of Registrars of Randolph Cty., 727 S.E.2d 478 (Ga. 2012).

Cited 18 times | Published | Supreme Court of Georgia | May 7, 2012 | 291 Ga. 67, 2012 Fulton County D. Rep. 1578

...of 1983, Art. VI, Sec. VI, Par. II(2), and because no other basis for this Court's jurisdiction appears to exist, we transfer this case to the Court of Appeals and do not reach the merits. 1. On October 25, 2010, after a hearing held pursuant to OCGA § 21-2-228, the Appellee Board of Registrars of Randolph County ruled that Cook, who was then serving on the Randolph County Board of Education, was not a resident of Randolph County and therefore was not an elector qualified to vote in that county. See OCGA § 21-2-216(a)(4) (to vote in a primary or general election, a person must be a "resident of this state and of the county ... in which he or she seeks to vote"). Appellant appealed that ruling to the superior court, see OCGA § 21-2-228(f), and filed a motion for an emergency hearing and a motion for stay and/or supersedeas, basing the motions in part on the ground that he had qualified to be on the ballot as a candidate for the School Board at the November 2, 2010, general election....

...regarding the registration of voters, see former Code Ann. §§ 34-601 to 34-636, including provisions for challenging the qualifications of voters, see former Code Ann. §§ 34-627 and 34-628. Today's election code contains similar provisions. OCGA § 21-2-228 permits a county or municipal board of registrars to challenge a person's right to register to vote or to remain on the list of electors, and OCGA § 21-2-229 permits an elector to bring the same type of challenge....

...e qualified had their ballots rejected); Whittington v. Mathis, 253 Ga. 653, 654, 324 S.E.2d 727 (1985) (post-election challenge to rejection of legal votes at the polling place). However, a challenge to a voter's qualifications brought under OCGA §§ 21-2-228 or 21-2-229 does not come within our jurisdiction, at least without a clear connection to a specific election. Such a challenge need not be linked to any election, past or future; a voter might become qualified, or disqualified, before the next election occurs, and the board of registrars could change its decision. See OCGA § 21-2-228(a) (providing that the board of registrars "shall not be limited or estopped by any action previously taken"). Whatever "election contest" means, it must relate to a dispute regarding an "election." Thus, the parties have cited no case in which this Court has decided a challenge to a voter's qualifications brought under OCGA §§ 21-2-228 or 21-2-229, and we have found only one case in which this Court decided an *483 issue regarding an individual voter's eligibility to vote that was not, at least as discussed on the face of the opinion, tied to an election....

...within our jurisdiction. No challenge to Cook's right to vote in the November 2, 2010, election was made under OCGA § 21-2-230; instead, the challenge to Cook's right to remain on the list of electors was made by the Board of Registrars under OCGA § 21-2-228, and Cook, in fact, voted in the 2010 election....

...Moreover, any connection between the Board of Registrars' ruling and Cook's eligibility to vote in future elections is speculative. Cook might change his residence or other qualifications before the next election in which he wishes to vote, and the Board of Registrars may change its ruling for that or other reasons. See OCGA § 21-2-228(a)....