O.C.G.A. § 21-2-285 (2019)

Annotations

Editor’s notes. 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-bymail 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 unifor-

mity 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, do-

nors, 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 As-

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sembly’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. Appearance of candidate’s name on ballot, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.02. Spoiled absentee ballots, Official Compilation of the Rules and Regulations of

the State of Georgia, Georgia Election Code, Absentee Voting, § 183-1-14-.06. Spoiled ballot definition, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Absentee Voting, § 183-1-14-.07. Law reviews. For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001). For article, “SB 202: Revisions to Georgia’s Election and Voting Procedures,” see 38 Ga. St. U.L. Rev. 105 (2021).

JUDICIAL DECISIONS Authority of states to regulate elections. - States have broad authority, absent valid congressional legislation, to establish rules regulating the manner of conducting both primary and final elections. Williamson v. Fortson, 376 F. Supp. 1300, 1974 U.S. Dist. LEXIS 8007 (N.D. Ga. 1974). There are many types of information which could serve to reduce voter confusion if they were included in the ballot. The determination of what should be included is a state function. Williamson v. Fortson, 376 F. Supp. 1300, 1974 U.S. Dist. LEXIS 8007 (N.D. Ga. 1974). Prohibition of use of stamps or stickers not unconstitutional. - The prohibition of the use of stamps or stickers is not unconstitutional on its face. Morris v. Fortson, 261 F. Supp. 538, 1966 U.S. Dist. LEXIS 7571 (N.D. Ga. 1966). Use of incorrect terminology held mere irregularity. - See Buttrill v. Thomas, 126 Ga. App. 498, 191 S.E.2d 119, 1972 Ga. App. LEXIS 1194 (1972). Omission of directions on ballots. - A trial court properly denied a losing candidate’s petition to contest the election results of a mayoral election held in a town as the losing candidate failed to meet the burden of establishing that any misconduct, fraud, or irregularity occurred that placed the result of the elec-

tion in doubt based on the county clerk signing the document reflecting the election results, instead of the election superintendent, and the clerk’s failure to purge the voters list, which was not an obligation of the election supervisor anyway. The omission of the statutory language providing directions on how to cast a vote likewise did not necessitate a new election since the poll manager testified that the poll manager and other poll workers instructed each voter how to fill out the ballot and established that there was no concern or confusion by the voters regarding the ballot. Lewis v. O’Day, 284 Ga. 423, 667 S.E.2d 594, 2008 Ga. LEXIS 820 (2008). 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).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34A-1004

and 34-1323 are included in the annotations for this Code section. Effect where election otherwise re-

quired by law. - A special municipal election, otherwise required by law, must be conducted notwithstanding the existence of the conditions set forth in this section. 1980 Op. Att’y Gen. No. U80-15 (decided under former Code 1933, § 34A1004). When no name for a particular race shall appear on ballot. - Where neither a party nominee nor a write-in candidate files notice of intention of candidacy in opposition to an already qualified candidate in a municipal general or special election, then no name for that race shall appear on the ballot. 1982 Op. Att’y Gen. No. U82-10 (decided under former Code 1933, § 34A-1004). Controlling sections or questions of form of ballot cards. - It was reasonable that former Code 1933, §§ 34-1102 and 34-1103 (see now O.C.G.A. §§ 21-2284 and 21-2-285) prescribing form for paper ballots, control questions of form of ballot cards when former Code 1933, § 341223 (formerly § 21-2-357), governing ballot cards, did not expressly provide an answer to the question raised. 1981 Op. Att’y Gen. No. 81-68. No candidate for office at general election. - When no candidate of either party nor an independent qualifies for an office to be filled at a general election, the title to the office should be printed on the ballot and then a note should be written under the title in each party’s column that there is no candidate for that office. 1968 Op. Att’y Gen. No. 68-411. Restrictions on use of stickers, pasters, and stamps. - Ga. L. 1933, § 341323 (see now O.C.G.A. § 21-2-438) does not remove the restrictions on the use of stickers, pasters, stamps, etc., as contained in former Code 1933, § 34-1103 (see now O.C.G.A. § 21-2-285). 1976 Op. Att’y Gen. No. U76-45 (decided under former Code 1933, § 34-1323). Prepunching, in addition to printing, of ballot cards used in conjunction with vote recorders. - Ballot cards used in conjunction with vote recorders may not be prepunched to designate election districts (now precincts) or political parties in lieu of printing such information on cards, but may be so prepunched in addition to printing such in-

formation on cards. 1981 Op. Att’y Gen. No. 81-68. When precinct and political party are designated by printing, such designations may be prepunched to obviate confusion and concern among voters; however, it would be wise to also include explanatory language to the effect that the “ballot has been prepunched only so as to indicate information printed immediately above.” 1981 Op. Att’y Gen. No. 81-68. Abbreviations in write-in votes. - An elector, when casting a write-in vote, may use abbreviations in the title of the office if the write-in office has been abbreviated in such a way that the elector has indicated clearly and without question the office for which the elector voted. 1968 Op. Att’y Gen. No. 68-434. Poll officers are required to count as valid any ballot on which an elector has indicated clearly and without question the candidate for whom the elector desires to cast a vote, notwithstanding the fact the elector has not marked the elector’s ballot in accordance with the Election Code. 1976 Op. Att’y Gen. No. U76-45. Misspelling of candidate’s name. - In those instances where the elector’s intent can clearly and unquestionably be ascertained, the elector’s vote should be counted even where the elector has not spelled the candidate’s name exactly as recorded by the candidate. 1968 Op. Att’y Gen. No. 68-411. Name of candidate. - Titles such as “Dr.”, “Rev.”, “Judge”, “Mr.”, “Ms.”, “Mrs.”, or “Miss” are not a part of a person’s name and should not be placed on the ballot as a part of the candidate’s name. 1984 Op. Att’y Gen. No. 84-51. When elected commissioner of labor withdrew prior to taking oath of office and another person was appointed to serve until the next general election in 1992, the proper ballot caption for the office for the 1992 primary and general elections was: “For Commissioner of Labor (To Succeed Al Scott for the Unexpired Term of Joe Tanner, withdrawn)”. 1991 Op. Att’y Gen. No. 91-16. Candidates for both special election and general election may be listed on same ballot. - Former Code

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1933, §§ 34-1102 and 34-1103 (see now O.C.G.A. §§ 21-2-284 and 21-2-285) allow both special election candidates and general election candidates to be listed on the same ballot so long as the candidates have qualified in accordance with the requirements of the Election Code and the elections are held on the same day; provided, however, that all persons in that election

district (now precinct) who will receive the ballot are eligible to vote in both the general and the special election. 1970 Op. Att’y Gen. No. 70-115. Straw polls. - Public funds may not be expended for the purpose of conducting a straw poll or public opinion referendum absent statutory authority. 1990 Ga. Op. Att’y Gen. U90.

RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, § 285 et seq.

C.J.S. 29 C.J.S., Elections, §§ 264, 267, 271, 272, 273.