CopyPublished | Supreme Court of Georgia | Oct 19, 2020 | 310 Ga. 266
...ied before Election Day
are void, none of the votes cast for NeSmith had legal effect.
Accordingly, for reasons more fully explained below, we determine
that the Athens-Clarke County Board of Elections properly applied
OCGA §§
21-2-437 (d) and
21-2-438 (a) when it voided the votes cast
for NeSmith and declared Jesse Houle the commissioner-elect for
Athens-Clarke County Commission District 6....
...The election proceeded, and 3,271 ballots were
cast in the race for the District 6 seat. Of those ballots, 1,866 were
marked for NeSmith, and 1,405 were marked for Houle. The Athens-
Clarke County Board of Elections ruled that, pursuant to OCGA §§
21-2-437 (d) and
21-2-438 (a) and this Court’s decision in Jones v.
2
Norris, 262 Ga....
...optical scanning voting
system and electronic ballot marking devices, noting that these were
simply “alternate systems for marking or employing paper ballots.”
The superior court thus determined that, under Jones, OCGA §§ 21-
2-437 (d) and
21-2-438 (a) applied to this election and that the Board
was correct in its assessment that the votes cast for NeSmith were
void due to his death....
...ed a notice of appeal
directed to this Court. The parties submitted briefs on an expedited
basis, as ordered by this Court. We now consider, in turn, each of the
claims raised by the appellants.
2. Application of OCGA §§
21-2-437 (d) and
21-2-438 (a) to votes
cast for NeSmith.
Ordinarily, the candidate who receives the most votes in an
election wins or at least advances to a runoff against the person
receiving the second highest number of votes....
...In primaries, votes cast for
candidates who have died, withdrawn, or been disqualified shall
be void and shall not be counted. In elections, votes for candidates
who have died or been disqualified shall be void and shall not be
counted.
7
21-2-438 (a)3 provide that “[i]n elections, votes for candidates who
have died or been disqualified shall be void and shall not be
counted.” The Board of Elections applied this straightforward rule
in this case to void all of the ballots marked for NeSmith who, due
to his death, was no longer eligible to serve in the office for which
this election was held. Thus, even though more ballots were marked
for NeSmith than for Houle, all votes cast for NeSmith were void.
3 OCGA §
21-2-438 (a) provides:
Any ballot marked so as to identify the voter shall be void
and not counted, except a ballot cast by a challenged elector whose
name appears on the electors list; such challenged vote shall be
cou...
...8
Houle was then declared the winner of the election because all valid
votes cast in the District 6 election were cast for him.
The appellants argue that the rule embodied in OCGA §§ 21-2-
437 (d) and
21-2-438 (a) applies only in elections conducted with
paper ballots and that, because the Board utilized electronic ballot
markers and an optical scanning voting system to administer the
election for District 6, that election was not conducted with paper
ballots....
...o have been
conducted via paper ballots. See
262 Ga. at 468. In Jones, this Court
held that there was no distinction between a paper ballot marked by
a pencil and a cardboard ballot marked by a punch. See id. at 469.
We thus determined that OCGA §
21-2-438 (a), which we noted
“govern[s] the conduct of elections using paper ballots,” applied to
void ballots cast for a candidate who had withdrawn from the
election....
...These and
other statutory provisions governing the use of these technologies thus clearly
contemplate that an optical scanning voting system, including one that utilizes
electronic ballot markers, is used with paper ballots.
12
2-437 (d) and
21-2-438 (a), applied to this election....
...Under those
provisions, the Board of Elections discharged its statutory duty to
void all ballots cast for NeSmith, leaving Houle the winner.
3. Claims under the United States Constitution.
The appellants assert that the Board’s application of OCGA §§
21-2-437 (d) and
21-2-438 (a) to void the votes cast for NeSmith
violated a number of their rights under the United States
Constitution....
...and
Fourteenth Amendments, and their rights under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
We address each claim in turn.
(a) The appellants challenge the Board’s application of OCGA
§§
21-2-437 (d) and
21-2-438 (a) on the basis that an election rule
voiding ballots marked for a candidate who has died prior to the
election places a severe burden on the right to vote under the First
and Fourteenth Amendments....
...The more a challenged law burdens the right to vote, the
stricter the scrutiny to which reviewing courts subject that law. See
Stein v. Ala. Sec. of State, 774 F3d 689, 694 (IV) (11th Cir. 2014).
(i) Burden on right to vote.
The appellants argue that the Board’s application of OCGA §§
21-2-437 (d) and
21-2-438 (a) places a severe burden on their voting
rights and that the Board’s action was not narrowly drawn to
advance a state interest of compelling importance....
...The Georgia statutes before us have a similar
effect.
Just as write-in ballots were void under the Hawaii law at issue
in Burdick, any ballots marked in a Georgia election for a candidate
who has died are void under OCGA §§
21-2-437 (d) and
21-2-438 (a).
Such votes do not count, and our laws treat them as though they
18
were never cast at all....
...Moreover, each voter who voted for NeSmith had the opportunity to
vote for an eligible candidate — in this case, Houle. Thus, to the
extent there is a burden on the appellants’ right to vote occasioned
by the application of OCGA §§
21-2-437 (d) and
21-2-438 (a) to void
votes cast for a candidate who has died, any such burden is, at most
“a very limited one.” Burdick, 504 U....
...even though the burden on the right to vote occasioned by this rule
is slight. (Citation and punctuation omitted.) Crawford v. Marion
County Election Bd., 553 U. S. 181, 190 (128 SCt 1610, 170 LE2d
574) (2008).
Both Houle and the Board posit that OCGA §§
21-2-437 (d) and
21-2-438 (a) simply allow for the efficient selection of elected
representatives....
...Houle further asserts that Georgia has an interest
in seeing that an election produces a winner so that voters are
ensured that newly elected officials take office when their terms are
set to begin. We agree that these are important regulatory interests
and that the policy embodied by OCGA §§
21-2-437 (d) and
21-2-438
(a) is a reasonable and non-discriminatory exercise of the state’s
power to regulate elections in furtherance of these goals....
...But the General Assembly chose
instead to declare that any ballots marked for a candidate who has
died are void, just as ballots marked for a person who has been
disqualified from the ballot are void under the same statutes. See
OCGA §§
21-2-437 (d);
21-2-438 (a)....
...In light of the minimal burden this rule places on the
right to vote, the state’s interest in finality and in administering a
fair and efficient election justify this rule and the Board’s
application of it in this case. Thus, the Board’s application of OCGA
§§
21-2-437 (d) and
21-2-438 (a) did not violate the appellants’ rights
to vote under the First and Fourteenth Amendments.
23
(b) The appellants also argue that the Board’s decision to
invalidate votes cast for NeSmith val...
...re not specific
enough such that they could be implemented in order to make a
standards-based decision regarding the intent of the voter who had
cast each disputed ballot. See id. at 105-111 (II) (B).
In contrast, OCGA §§
21-2-437 (d) and
21-2-438 (a) provide for
a simple, objective judgment to be made by the Board: if a candidate
has died, any votes cast for him or her are void....
...795,
797 (1) (a) (684 SE2d 257) (2009).
Moreover, to the extent Bush took issue with the fact that the
recount procedures at issue had been developed only after the
election, see 531 U. S. at 104-105 (II) (B), that concern is not present
here. OCGA §§
21-2-437 (d) and
21-2-438 (a) were enacted well
before the June 9, 2020 election for District 6 county commissioner.
Upon learning of NeSmith’s death, the Board was not attempting to
fashion an ad hoc solution to a new problem not contemplated by
state law....
...Instead, the Board applied clear and longstanding
Georgia election statutes. Consequently, the appellants have no
claim that votes cast for NeSmith were void as the result of “later
arbitrary and disparate treatment,” as nothing about the
requirements of OCGA §§
21-2-437 (d) and
21-2-438 (a) has been
shown to lack “specific standards to ensure [their] equal
application.” (Emphasis supplied.) Bush, 531 U....
...1, 17 (II) (84 SCt 526, 11 LE2d 481)
(1964); Gray v. Sanders, 372 U. S. 368, 380 (III) (83 SCt 801, 9 LE2d
821) (1963); and United States v. Mosley, 238 U. S. 383, 386 (35 SCt
904, 59 LE 1355) (1915), the appellants argue that the Board’s
application of OCGA §§
21-2-437 (d) and
21-2-438 (a) in this case
violate what they characterize as their “fundamental right to have
their votes counted.” The appellants also argue that the Board’s
application of OCGA §§
21-2-437 (d) and
21-2-438 (a) denied them
an equal vote in the District 6 election and unfairly weighted the
votes of those who voted for Houle, again citing Gray and the United
States Supreme Court’s decisions in City of Phoenix v....
...equal protection clause of the Georgia Constitution.
5. Conclusion.
In sum, the superior court did not err by determining that the
appellants’ challenge to the action of the Board of Elections was
without merit. The Board properly applied OCGA §§
21-2-437 (d)
and
21-2-438 (a) to determine that all votes cast for NeSmith were
void....
