TITLE 21 ELECTIONS

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

ARTICLE 11 PREPARATION FOR AND CONDUCT OF PRIMARIES AND ELECTIONS

21-2-438. Ballots identifying voter, not marked, or improperly marked declared void.

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 counted as prima facie valid but may be voided in the event of an election contest. Any ballot marked by anything but pen or pencil shall be void and not counted. Any erasure, mutilation, or defect in the vote for any candidate shall render void the vote for such candidate but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked. If an elector shall mark his or her ballot for more persons for any nomination or office than there are candidates to be voted for such nomination or office, or if, for any reason, it may be impossible to determine his or her choice for any nomination or office, his or her ballot shall not be counted for such nomination or office; but the ballot shall be counted for all nominations or offices for which it is properly marked. Ballots not marked or improperly or defectively marked so that the whole ballot is void, shall be set aside and shall be preserved with the other ballots. In primaries, votes cast for candidates who have died, withdrawn, or been disqualified shall be void and shall not be counted.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.
At elections, any ballot marked by any other mark than a cross (X) or check ( √) mark in the spaces provided for that purpose shall be void and not counted; provided, however, that no vote recorded thereon shall be declared void because a cross (X) or check ( √) mark thereon is irregular in form. A cross (X) or check ( √) mark in the square opposite the names of the nominees of a political party or body for the offices of President and Vice President shall be counted as a vote for every candidate of that party or body for the offices of presidential electors. Any ballot indicating a write-in for any person whose name is not printed on the ballot and who properly gave notice of intent to run as a write-in candidate pursuant to Code Section 21-2-133 shall be counted as a vote for such person, if written in the proper space or spaces provided for that purpose, whether or not a cross (X) or check ( √) mark is placed before the name of such person.
Notwithstanding any other provisions of this chapter to the contrary and in accordance with the rules and regulations of the State Election Board promulgated pursuant to paragraph (7) of Code Section 21-2-31, if the elector has marked his or her ballot in such a manner that he or she has indicated clearly and without question the candidate for whom he or she desires to cast his or her vote, his or her ballot shall be counted and such candidate shall receive his or her vote, notwithstanding the fact that the elector in indicating his or her choice may have marked his or her ballot in a manner other than as prescribed by this chapter.

(Ga. L. 1952, p. 304, § 1; Code 1933, §§ 34-1322, 34-1322.1, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 871, §§ 9, 10; Code 1933, §§ 34-1323, 34-1324, as redesignated by Ga. L. 1969, p. 308, §§ 9, 24; Ga. L. 1987, p. 417, § 8; Ga. L. 1987, p. 1360, § 17; Ga. L. 1993, p. 118, § 1; Ga. L. 1994, p. 279, § 8; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 50.)

Administrative Rules and Regulations.

- Definition of vote and review of ballots, Ga. Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Returns of Primaries and Elections, Sec. 183-1-15-.02.

JUDICIAL DECISIONS

Legislative declaration of public policy.

- The directions as to how a voter should mark a ballot and as to what ballots shall or shall not be counted, though specifically referring to the paper ballot, are declarations of public policy by the legislature. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).

It is the duty of the voter to make the voter's intention clear and certain, upon pain of having the vote cast out if that does not appear. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).

Unless the ballot clearly demonstrates the voter's intention, those who are charged with the counting and tabulation of ballots should not be called upon to surmise as to what the intent may have been - for they may well come to the wrong conclusion. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).

"Over-vote" voids ballot as to specific office.

- An "over-vote" occurs when the voter appropriately marks the indicated space at the head of a party column on a ballot, indicating an intention to vote for all of that party's candidates, and also places marks opposite the names of an opposing candidate or candidates, indicating an intent to vote also for them, or when the voter marks a straight party ticket and additionally writes in the name of a candidate for one of the offices for which there is a candidate by that party. Where an over-vote has occurred, as to that office, or those offices, the ballot is invalid, but it is valid as to others. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).

Vote recorder ballots.

- Cardboard ballots "marked" by a punch are governed by the provisions of O.C.G.A. § 21-2-438 pertaining to paper ballots and, thus, votes cast on vote recorder ballots for candidates who had withdrawn from the election were void. Jones v. Norris, 262 Ga. 468, 421 S.E.2d 706 (1992).

Cited in Broome v. Martin, 111 Ga. App. 51, 140 S.E.2d 500 (1965); Henderson v. County Bd. of Registration & Elections, 126 Ga. App. 280, 190 S.E.2d 633 (1972); Rary v. Guess, 129 Ga. App. 102, 198 S.E.2d 879 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Ballot which shows clear indication of intent is valid.

- To give meaning to former Code 1933, §§ 34-1103, 34-1330, 34-1324 (see O.C.G.A. §§ 21-2-285,21-2-452 and21-2-438) those statutes should be construed as requiring poll officers to count as valid ballots 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 ballot in accordance with the Election Code, except write-in ballots containing the name of the candidate inserted by means of a sticker, paster, stamp, or other printed or written matter. 1976 Op. Att'y Gen. No. U76-45.

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.

Use of stickers, pasters, and stamps.

- Former Code 1933, § 34-1324 (see O.C.G.A. § 21-2-438) did not remove the restrictions on the use of stickers, pasters, and stamps, as contained in former Code 1933, §§ 34-1103 and 34-1330 (see O.C.G.A. §§ 21-2-285 and21-2-452). 1976 Op. Att'y Gen. No. U76-45.

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