Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.
ARTICLE 6
REGISTRATION OF VOTERS
21-2-230. Challenge of persons on list of electors by other electors; procedure; hearing; right of appeal.
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Any elector of the county or municipality may challenge the right of any other elector of the county or municipality, whose name appears on the list of electors, to vote in an election. Such challenge shall be in writing and specify distinctly the grounds of such challenge. Such challenge may be made at any time prior to the elector whose right to vote is being challenged voting at the elector's polling place or, if such elector cast an absentee ballot, prior to 5:00 P.M. on the day before the election; provided, however, that challenges to persons voting by absentee ballot in person at the office of the registrars or the absentee ballot clerk whose vote is cast on a DRE unit must be made prior to such person's voting.
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Upon the filing of such challenge, the board of registrars shall immediately consider such challenge and determine whether probable cause exists to sustain such challenge. If the registrars do not find probable cause, the challenge shall be denied. If the registrars find probable cause, the registrars shall notify the poll officers of the challenged elector's precinct or, if the challenged elector voted by absentee ballot, notify the poll officers at the absentee ballot precinct and, if practical, notify the challenged elector and afford such elector an opportunity to answer.
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If the challenged elector appears at the polling place to vote, such elector shall be given the opportunity to appear before the registrars and answer the grounds of the challenge.
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If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and if the challenge is based on grounds other than the qualifications of the elector to remain on the list of electors, no further action by the registrars shall be required.
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If the challenged elector cast an absentee ballot and it is not practical to conduct a hearing prior to the close of the polls and the challenge is based upon grounds other than the qualifications of the elector to remain on the list of electors, the absentee ballot shall be treated as a challenged ballot pursuant to subsection (e) of Code Section 21-2-386. No further action by the registrars shall be required.
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If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and the challenge is based on the grounds that the elector is not qualified to remain on the list of electors, the board of registrars shall proceed to hear the challenge pursuant to Code Section 21-2-229.
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If the challenged elector cast an absentee ballot and the challenge is based upon grounds that the challenged elector is not qualified to remain on the list of electors, the board of registrars shall proceed to conduct a hearing on the challenge on an expedited basis prior to the certification of the consolidated returns of the election by the election superintendent. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.
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If the challenged elector appears at the polls to vote and it is practical to conduct a hearing on the challenge prior to the close of the polls, the registrars shall conduct such hearing and determine the merits of the challenge. If the registrars deny the challenge, the elector shall be permitted to vote in the election notwithstanding the fact that the polls may have closed prior to the time the registrars render their decision and the elector can actually vote, provided that the elector proceeds to vote immediately after the decision of the registrars. If the registrars uphold the challenge, the challenged elector shall not be permitted to vote and, if the challenge is based upon the grounds that the elector is not qualified to remain on the list of electors, the challenged elector's name shall be removed from the list of electors.
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If the challenged elector appears at the polls to vote and it is not practical to conduct a hearing prior to the close of the polls or if the registrars begin a hearing and subsequently find that a decision on the challenge cannot be rendered within a reasonable time, the challenged elector shall be permitted to vote by casting a challenged ballot on the same type of ballot that is used by the county or municipality for provisional ballots. Such challenged ballot shall be sealed in double envelopes as provided in subsection (a) of Code Section 21-2-419 and, after having the word "Challenged," the elector's name, and the alleged cause of the challenge written across the back of the outer envelope, the ballot shall be deposited by the person casting such ballot in a secure, sealed ballot box notwithstanding the fact that the polls may have closed prior to the time the registrars make such a determination, provided that the elector proceeds to vote immediately after such determination of the registrars. In such cases, if the challenge is based upon the grounds that the challenged elector is not qualified to remain on the list of electors, the registrars shall proceed to finish the hearing prior to the certification of the consolidated returns of the election by the election superintendent. If the challenge is based on other grounds, no further action shall be required by the registrars. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.
(Code 1981, §21-2-230, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 6, 30; Ga. L. 2000, p. 135, § 1; Ga. L. 2003, p. 517, § 22; Ga. L. 2005, p. 253, § 27/HB 244; Ga. L. 2010, p. 914, § 12/HB 540; Ga. L. 2012, p. 995, § 18/SB 92.)
The 2010 amendment,
effective July 1, 2010, in subsection (i), added "casting a challenged ballot on the same type of ballot that is used by the county or municipality for mail-in absentee ballots." at the end of the first sentence, and, in the second sentence, added "Such challenged ballot shall be sealed in double envelopes as provided in Code Section 21-2-384 and, after" at the beginning, and substituted "outer envelope, the ballot shall be deposited by the person casting such ballot in a secure, sealed ballot box" for "elector's ballot" in the middle.
The 2012 amendment,
effective July 1, 2012, in subsection (i), substituted "provisional ballots" for "mail-in absentee ballots" in the first sentence and, in the second sentence, substituted "subsection (a) of Code Section 21-2-419" for "Code Section 21-2-384" and substituted "'Challenged,' the elector's name, and the alleged cause of the challenge" for "'Challenged' and the elector's name".
Law reviews.
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For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the provisions, opinions decided under former Code 1933,
§
34-605, are included in the annotations for this Code section.
One who moves away from a county forfeits the right to vote in that county.
1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933,
§
34-605).
Notice of challenge.
- The registrars are required by law to give notice to the person whose right to appear on the voters list is questioned either by the registrars or by any citizen. The notice is to be in writing and served upon the person either personally or by leaving the same at the person's most notorious place of abode. 1945-47 Op. Att'y Gen. p. 242 (decided under former Code 1933,
§
34-605).
Service of challenge.
- A notice of challenge of a registered voter is served by the sheriff, the deputy, or a lawful constable. The costs of service are paid from the county treasury. 1945-47 Op. Att'y Gen. p. 242 (decided under former Code 1933,
§
34-605).
Proof of disqualification required for removal from voters list.
- The registrars may not remove the name of a challenged voter from the voters list except upon legal proof of disqualification. 1945-47 Op. Att'y Gen. p. 244 (decided under former Code 1933,
§
34-605).
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d, Elections,
§
183.
C.J.S.
- 29 C.J.S., Elections,
§
67 et seq.
JUDICIAL DECISIONS
Election challenger's timely filed election contest, filed after the election, was erroneously dismissed,
as such was not moot merely because the challenger failed to file the contest prior to the election, given that no statutory provision or case law supported this proposition, and the petition sufficiently stated a claim upon which relief could be granted. Allen v. Yost, 281 Ga. 102, 636 S.E.2d 517 (2006), appeal dismissed, 282 Ga. 865, 655 S.E.2d 580 (2008).
