CopyCited 9 times | Published | Supreme Court of Georgia | Oct 4, 2010 | 287 Ga. 835, 2010 Fulton County D. Rep. 3177
...McCord filed a timely election contest in the Superior Court of Spalding County, alleging that a number of electors greater than the margin of victory in the runoff had illegally cast absentee ballots because they did not have one of the six reasons for voting by absentee ballot specified in OCGA §
21-2-380(a). As OCGA §
21-2-380 existed on December 1, 2009, subsection (a) defined an "absentee elector" as an elector who had one of six reasons to vote by absentee ballot (e.g., being older than age 75), while subsection (b) provided that an elector who wanted to cast an absentee ballot "shall not be required to provide a reason" for doing so....
...specified by subsection (a), but that the electors, in fact, had to have one of those reasons to be eligible to cast an absentee ballot. The court also found that at least 25 voters who voted by absentee ballot were not qualified to do so under OCGA §
21-2-380(a), casting the result of the election into doubt....
...Understanding the meaning of the statutory provisions applicable to absentee voting in 2009 requires an understanding of the history of the relevant legislative enactments before and after that time. A. Pre-2003: For many years, Georgia allowed absentee voting in only limited circumstances. In 1964, the predecessor to OCGA §
21-2-380 was enacted and permitted electors to vote by absentee ballot for only two reasons. See then Code Ann. § 34-1401 (Ga.L.1964, Ex.Sess., p. 26, § 1). Over the next four decades, OCGA §
21-2-380 was amended to ultimately include six reasons for casting an absentee ballot. See, e.g., Ga. L.1989, p. 1084, § 1; Ga. L.1998, pp. 295, 425. Thus, before its 2003 amendments, OCGA §
21-2-380, which did not have a subsection (b), provided as follows: As used in this article, the term "absentee elector" means an elector of this state or a municipality thereof who: (1) Is required to be absent from his or her precinct during the...
...In addition, OCGA §
21-2-381(a)(1) provided that an application for an absentee ballot had to state "the reason for requesting the absentee ballot." Ga. L.1998, p. 426. Accordingly, to vote by absentee ballot before the 2003 amendments, electors had to have one of the six fairly uncommon reasons listed in OCGA §
21-2-380 and had to state on their applications their specific reason for casting an absentee ballot. B. 2003 Amendments: The law of absentee voting began to change in 2003. OCGA §
21-2-380 was amended by placing the existing provisions into a subsection (a) and adding a new subsection (b), which provided for "early voting" as follows: An elector who casts an absentee ballot in person at the registrar's office or absentee ba...
...Earp,
261 Ga. 522, 523-524,
407 S.E.2d 737 (1991); State Bd. of Ed. v. County Bd. of Ed.,
190 Ga. 588, 596,
10 S.E.2d 369 (1940). The only 2003 amendment that related to a " qualification to vote by absentee ballot" was the addition of subsection (b) to OCGA §
21-2-380; the other changes clearly related to election procedures....
...as only the procedure for casting an absentee ballot would have changed (that is, an elector previously qualified by one of the six reasons could now cast the ballot at the registrar's office the week before the election). By contrast, reading OCGA §
21-2-380(b)'s language as eliminating the requirement that an in-person absentee elector have one of the six reasons listed in OCGA §
21-2-380(a) reflects a significant change in the qualifications of those voters....
...t by filing a lawsuit and eliciting the reasons at an evidentiary hearing would undermine the regularity and finality of elections with no apparent rationale. Thus, after the 2003 amendments, with respect to early in-person voting, subsection (b) of §
21-2-380 was in apparent conflict with subsection (a), as well as with OCGA §
21-2-381(a)(1), which required electors to state a reason for requesting an absentee ballot, and that conflict could not be resolved using the trial court's reasoning....
...However, electors other than those who cast absentee ballots in person before election day continued to have to provide one of the six reasons for casting an absentee ballot. C. 2005 Amendments: The 2005 amendments further expanded the ability of electors to vote by absentee ballot without a specific reason. OCGA §
21-2-380(a) retained the six specific reasons for absentee voting, but subsection (b) was amended to add a second and much larger category those "who request[ ] an absentee ballot by mail"to the electors who "shall not be required to provide a...
...week before election day, electors requesting to vote by absentee ballot by mail could no longer "be required" by election officials to provide a reason for doing so. Moreover, the amendments made OCGA §
21-2-381(a)(1)(C) more consistent with OCGA §
21-2-380(b) by adding the words "if applicable" to the requirement that an elector state a reason for voting by absentee ballot on the application....
...And OCGA §
21-2-381(b)(1) directed election officials to determine if an elector was "eligible" to vote by absentee ballot in person solely by checking whether the person had proper identification. No group of electors could now be required to provide one of the six reasons for voting by absentee ballot listed in OCGA §
21-2-380(a), nor were election officials directed to examine in-person absentee voter eligibility by reference to those reasons. D. 2008 Amendments: OCGA §
21-2-380(a) remained on the books after the 2008 amendments, but subsection (b) was revised to provide as follows: An elector who requests an absentee ballot by mail or who casts an absentee ballot in person at the registrar's office or absentee b...
...ication is signed by the elector, compar[ing] the signature or mark of the elector on the application with the signature or mark of the elector on the elector's voter registration card." Ga. L.2008, p. 449, § 3. Accordingly, beginning in 2008, OCGA §
21-2-380(b) authorized in-person absentee voting even earlier than the week before election day, as well as absentee voting by mail, and precluded election officials from "requiring" electors to provide their reason for casting an absentee ballot....
...nto play. The trial court looked only to the presumption against treating any statutory language as surplusage. See Harris v. State,
286 Ga. 245, 251,
686 S.E.2d 777 (2009). The court attempted to give meaning to both subsections (a) and (b) of OCGA §
21-2-380 by construing the former to mean that an elector had to actually have one of the six reasons to vote by absentee ballot and the latter to mean that an elector did not have to provide that reason to election officials. As discussed above, this interpretation conflicts with the most natural meaning of OCGA §
21-2-380(b), as well as of OCGA §
21-2-381(a) and (b)(1)....
...864, 866-867,
524 S.E.2d 481 (1999) (explaining where statutes are in conflict and cannot be reconciled, the "later statutes prevail over earlier statutes"). Read in that full, natural, and historical context, applying all of those tools of statutory interpretation, we conclude that OCGA §
21-2-380(a) cannot be construed to require electors to have a specific reason to vote by absentee ballot. This is not a case where the statutory language at issue was enacted contemporaneously, which would have made the presumption against surplusage stronger. Rather, OCGA §
21-2-380(a) is an older provision whose import was eroded to nothingness over the course of several subsequent enactments. In particular, OCGA §
21-2-380(b) was first enacted in 2003 to "change the qualifications" for absentee voters by eliminating the requirement that certain electors "provide a reason" for voting absentee, and that provision was expanded to all absentee voters in 2005 and carried forward in 2008....
...In addition, as most recently amended in 2005 and 2008, the plain language of OCGA §
21-2-381(b) requires that election officials verify the eligibility of absentee voters by one and only one criterion their identification. [1] Because OCGA §§
21-2-381 and
21-2-380(b) are the later enacted statutes and reflect the General Assembly's repeated enactments over the past seven years to expand the scope and ease of absentee voting, the clear language of OCGA §§
21-2-380(b) and
21-2-381 must control. For these reasons, based on the legislative enactments as of December 2009, we interpret OCGA §
21-2-380(a) to have been rendered nugatory by the time of the run-off election at issue....
...bly that become effective after the controversy at issue if they relate to the same subject as the statute at issue). In 2010, recognizing the reality that had been created by the amendments in 2003, 2005, and 2008, the General Assembly amended OCGA §
21-2-380 to formally delete the six reasons for absentee voting....
...L.2010, p. 914, § 17. The 2010 law similarly amended OCGA §
21-2-381(a)(1)(C) by deleting the requirement that the elector state "the reason for requesting the absentee ballot, if applicable," see Ga. L.2010, § 18, while making no changes to OCGA §
21-2-380(b). We also note that, while deleting the six reasons for absentee voting listed in the prior versions of OCGA §
21-2-380(a), the Legislature retained the language from the previous versions of subsection (b) that an elector "shall not be required to provide a reason" to cast an absentee ballot....
...NOTES [1] The validity of the voter identification requirements has not been challenged in this case. Compare Democratic Party of Georgia v. Perdue, Case No. S10A1517. [2] McCord also contends that OCGA §
21-2-573 supports the trial court's interpretation of OCGA §
21-2-380(a)....
...ualifications to vote at all in the relevant election, see OCGA §
21-2-216 (setting forth qualifications of electors), apart from whether they meet whatever qualifications might have existed for voting by absentee ballot. The 2010 amendment to OCGA §
21-2-380 confirms this view....
