CopyCited 34 times | Published | Supreme Court of Georgia | Oct 30, 2008 | 284 Ga. 550, 2008 Fulton County D. Rep. 3441
...Appellant Karen Handel is the Secretary of State of Georgia. On June 9, 2008, the Secretary filed a challenge to the qualifications of James R. Powell, who had filed a declaration of candidacy and affidavit to be a candidate for Georgia Public Service Commission, District 4. OCGA §
21-2-5....
...ead for all purposes. OCGA §
48-5-40(3)(K). The candidate's appeal of the Secretary's decision to superior court was confined to the record of the proceedings before the ALJ and the Secretary, and was decided by the trial court without a jury. OCGA §
21-2-5(e)....
...In this Court, the Secretary maintains the trial court erred when it failed to defer to the Secretary's decision because there is evidence in the record supporting the Secretary's decision that the candidate was not a legal resident of Public Service Commission District 4. OCGA §
21-2-5(e) provides the standard of review a superior court is to employ when reviewing a decision by the Secretary of *65 State on a challenge to a candidate's qualifications. It is virtually identical to the standard of review provided in the Administrative Procedure Act, OCGA §
50-13-19(h), in that OCGA §
21-2-5(e) directs the superior court to not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact....
...flects the plain language of the statute and comports with the legislative intent." Id. See also Plymel v. Teachers Retirement System,
281 Ga. 409(4)(c),
637 S.E.2d 379 (2006); McKee v. City of Geneva, supra,
280 Ga. at 413-414,
627 S.E.2d 555. OCGA §
21-2-5(e)(1) and (4) make it clear that the superior court may modify or reverse the Secretary's decision on a candidate's qualifications if the court determines that substantial rights of the candidate have been prejudiced because the findings, i...
CopyCited 18 times | Published | Supreme Court of Georgia | May 7, 2012 | 291 Ga. 67, 2012 Fulton County D. Rep. 1578
...mitted to electors at an election." Id. This provision is essentially maintained in the current code, with the extension to cover candidates for municipal office and the authorization of contests by a single eligible voter rather than five. See OCGA §
21-2-521....
...sult; (5) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election. The grounds for contesting the result of a primary or election remain the same today. See OCGA §
21-2-522(1)-(5)....
...the candidates for and results of elections long recognized by statute, and this Court accordingly has decided many such cases. See, e.g., Scoggins v. Collins,
288 Ga. 26,
701 S.E.2d 134 (2010) (post-election challenge to election result under OCGA §
21-2-522 based on a candidate's alleged ineligibility to hold office and alleged misconduct of election officials and miscounting of votes); Lewis v. O'Day,
284 Ga. 423,
667 S.E.2d 594 (2008) (post-election challenge to election result based on alleged misconduct of election officials, see OCGA §
21-2-522(1)); McIntosh County Bd. of Elections v. Deverger,
282 Ga. 566,
651 S.E.2d 671 (2007) (post-election challenge to election result based on alleged casting of illegal votes and wrongful rejection of legal votes, see OCGA §
21-2-522(3)); Allen v. Yost,
281 Ga. 102,
636 S.E.2d 517 (2006) (post-election challenge to election result based on alleged misconduct of election officials and casting of illegal votes, see OCGA §§
21-2-522(1) and (3))....
...relief from being filed prior to the primary or election, where the ground for contest is that the nominee is ineligible for nomination or office under Code Ann. § 34-1703[(2)]"). In 1980, the General Assembly enacted Code Ann. § 34-304, now OCGA §
21-2-5, and Code Ann. § 34-406, now OCGA §
21-2-6, expressly authorizing such pre-election challenges. See Ga. L. 1980, pp. 312, 312-314. OCGA §
21-2-5 permits the Secretary of State or an eligible voter to file a pre-election challenge to the qualifications of a candidate who has filed to run in an upcoming election for a state or federal office....
...1443, § 3, grants an elector, but not a board of registrars, the authority to challenge another elector's right to vote in a particular election. A challenge brought under OCGA §
21-2-230 involves a pre-election contest regarding a particular election whether a voter is qualified to vote in it much as OCGA §
21-2-522(3) authorizes certain post-election contests based on "illegal votes ......
...209, 210,
282 S.E.2d 84 (1981) (pre-election challenge brought before the enactment of OCGA §
21-2-230 by an elector to the right of certain voters to vote in a specific election); Deverger,
282 Ga. at 568,
651 S.E.2d at 673-674 (post-election contest under OCGA §
21-2-522(3) contending that some voters who were not qualified to vote were permitted to cast ballots while other voters who were qualified had their ballots rejected); Whittington v....
...ead, the challenge to Cook's right to remain on the list of electors was made by the Board of Registrars under OCGA §
21-2-228, and Cook, in fact, voted in the 2010 election. Likewise, no challenge to the result of that election was made under OCGA §
21-2-522(3) on the ground that Cook was not qualified to vote....
CopyCited 5 times | Published | Supreme Court of Georgia | Sep 17, 2024 | 319 Ga. 794
...after the trial court on March 8 ordered that the Candidates be
permitted to qualify, the CCRP Defendants’ requested relief would
appear to require upending the results of a completed primary
election as to one or more commission seats. See OCGA §
21-2-150;
OCGA §
21-2-501 (a) (1) (setting primary runoff for June 18, 2024,
the twenty-eighth day after the holding of the preceding primary).3
Given the CCRP Defendants’ failure to litigate this appeal with
2 As set forth in the March 7 and March 8 o...
...noted that the General
Assembly ‘has demonstrated that election contests are to be heard
with the greatest of expedition.’” Id. at 546 (1) (quoting Swain v.
Thompson,
281 Ga. 30, 31 (2) (635 SE2d 779) (2006), which noted,
for example, OCGA §
21-2-524 (a)’s requirement that a petition
contesting the results of a primary or election must be filed within
five days of the consolidation of election returns).
Particularly relevant here, the statutory provisions
autho...
...qualifying for filing a complaint with the superintendent and a ten-
9
day deadline for appealing to a superior court a superintendent’s
decision on such a challenge. See OCGA §
21-2-6 (b), (e). This action
is not an election contest under OCGA §
21-2-520 et seq. or a
challenge to candidate qualifications brought under OCGA §
21-2-5
or OCGA §
21-2-6....
CopyCited 1 times | Published | Supreme Court of Georgia | Dec 10, 2024 | 320 Ga. 532
...f).”
Catoosa County Republican Party v. Henry,
319 Ga. 794, 794-95 (906
SE2d 750) (2024).
Prior to the election which took place on May 21, 2024, Frails
alone filed a challenge to Davis’s qualifications to run as a candidate
under OCGA §
21-2-5, alleging that Davis was not a resident of
Georgia....
...t at the
time of qualifying based on facts such as his voter’s registration,
voting history, and driver’s license. The next day, Frails filed in the
superior court a petition for judicial review of the Secretary’s final
decision under OCGA §
21-2-5 (e); Frails also moved for an
emergency hearing on his petition and moved to stay the
2
certification of the election results until his challenge was decided.
It does not appear, however, that Frails mo...
...moot because the election had
already occurred and the results were certified by the Secretary of
State. Frails did not appeal that order.
Rather, on June 11, Ponder and Frails filed this separate post-
election contest petition under OCGA §
21-2-524 against Davis, the
Fulton County Board of Registration and Elections, the Fulton
County Department of Registration and Elections, and John or Jane
3
Doe as a Public Officer of the State of Georgia,...
...Motions to dismiss on
various grounds were filed, including that the petitioners’
verifications failed to assert “that according to the best of his or her
knowledge and belief the contested result of the primary or election
[was] illegal and the return thereof incorrect,” as required by OCGA
§
21-2-524 (d)....
...On August 5, the
superior court held a hearing on the parties’ motions, and on August
7, it entered an order dismissing Ponder and Frails’ petition against
all parties.
In the order, the superior court ruled that the verifications filed
with the original petitions failed to meet the requirements of OCGA
§
21-2-524 (d)....
CopyPublished | Supreme Court of Georgia | May 28, 2025
... Dean sought to be declared the sole qualified candidate for Labor
Commissioner.2
Before filing his petition, Dean did not challenge the
qualifications of the other candidates through the pre-election
administrative process provided in OCGA §
21-2-5 (b).3 And at the
time of filing his petition, Dean did not file an affidavit verifying the
petition pursuant to the requirement of OCGA §
21-2-524 (d) for
post-election contests....
...Party filed an answer and motion to dismiss on August 12, 2022, and
the State of Georgia and the Secretary of State (“the State
defendants”) filed an answer and motion to dismiss on August 15,
2022. Dean filed a motion to file the affidavit required by OCGA §
21-2-524 (d) on September 5, 2022....
...re
“conspiratorially with” the original and additional defendants and that the
Secretary of State “was negligent in not properly screening applicants for
candidacy for [Georgia] Labor Commissioner, and did not file a challenge under
[OCGA §]
21-2-5 (b).” The amended petition also requested that all of the
defendants be compelled to comply with OCGA §§
45-2-4,
45-10-3, and 45-10-
22.
3
of the qualifying deadline as required by OCGA §
21-2-5 (b); and
Dean’s failure to verify his petition by affidavit within five days of
certification of the primary election results as required by OCGA §
21-2-524 (a), (d)....
...in the context of an impending primary election.” Peterson,
320 Ga.
at 504 (citation and punctuation omitted).
Dean also makes two other arguments about the trial court’s
specific rulings that are relevant to his failure to act with dispatch.
First, he argues that OCGA §
21-2-5 (b) does not require a challenger
to follow its procedure for filing a complaint before challenging the
qualifications of prospective candidates for public offices....
...the primary election, he still failed to utilize every available means to resolve
those challenges after the primary election and before the general election. See
Peterson,
320 Ga. at 505 n.4. Instead of promptly filing the affidavit required
by OCGA §
21-2-524 (d) to verify his post-primary petition, Dean delayed
resolution of his claims by waiting nearly three months before attempting to
file the affidavit....
....
Defendants assert their challenge to the Candidates’ qualifications
in a defensive posture” in a petition for a temporary restraining
order and injunctive relief.). See also Griggers v. Moye,
246 Ga. 578,
579 (1) (272 SE2d 262) (1980) (Prior to the enactment of OCGA §§
21-2-5 and
21-2-6, a complaint for declaratory judgment and
injunctive relief based on the alleged ineligibility of a candidate was
“not immune to the requirements of” the Election Code.)....
...Dean challenges the qualifications of candidates for a primary
election that determined the candidates for a general election, but
both of those elections were carried out and certified years ago, in
2022. And Dean does not even ask to overturn those elections or call
for new ones, see OCGA §
21-2-527, but merely for a judicial
declaration about who was qualified to run in the primary....
...And effective relief
13
was still available to a successful challenger in Caplan: after all, the
Election Code expressly allows election contests to be brought after
a general election and expressly contemplates courts declaring such
an election invalid and calling for a new one. OCGA §
21-2-527 (d).
So the appeal in Caplan simply was not moot.
In Caplan and decisions that followed it, this unsupported
expansion of the mootness doctrine in election contests also started
to morph into our current “prudential” dispatch doctrine....
...What’s more, we have justified this duty in part
by pointing to our Election Code’s strict deadlines meant to expedite
election contests, even though we have dismissed challenges under
this doctrine when none of those statutory deadlines have been
missed. See, e.g., OCGA §
21-2-524 (a) (providing that an election
17
challenge must be brought “within five days after the official
consolidation of the [election] returns”)....
...e should not expand
it as the majority does here. Our past decisions have all applied the
dispatch doctrine in cases brought under our Elections Code, and we
have expressly said that the doctrine is “grounded in the statutory
framework of OCGA §
21-2-520 et seq.,” which provides that strict
set of expedited deadlines and requirements for election contests.
Miller, 319 Ga....
CopyPublished | Supreme Court of Georgia | Sep 25, 2024
...remedies the
superior courts ordered are affirmed. We note that at oral argument,
counsel for the Secretary represented to this Court that if the
superior courts’ orders in these cases were to be affirmed, the
Secretary would comply with OCGA §
21-2-5 (c), which involves
“plac[ing] prominent notice[s]” at “each affected polling place
advising voters of the disqualification of the candidate[s] and all
votes cast for such candidate[s] shall be void and not counted,” and
1 We also affirm the superior court’s order in Wittenstein v....
...t electors did not qualify under
the Georgia Election Code. See Wittenstein v. West, No. 24CV011079, Order at
3 (Sept. 11, 2024). No such challenge was brought against candidate De la
Cruz.
5
pursuant to OCGA §
21-2-5 (b).3 On August 19 and August 22, 2024,
the Chief ALJ held separate hearings on the challenges against the
West electors (Al-Bari et al.) and the De la Cruz electors (Clapp et
al.), respectively....
...is
required to timely file ‘a nomination petition in the form prescribed
in Code Section
21-2-170.’” Because none of West’s electors and none
of De la Cruz’s electors had met this requirement, none were
“qualified as candidates for the office of presidential elector.”
3 OCGA §
21-2-5 (b) provides in relevant part:
Within two weeks after the deadline for qualifying, any elector who
is eligible to vote for a candidate may challenge the qualifications
of the candidate by filing a written complaint with the...
...idential candidate
on the ballot.
In considering what remedy to order in light of these legal
conclusions, the superior court in Pigg v. Raffensperger, No.
24CV011035 (Sept. 11, 2024) (the West elector challenge) expressly
found under OCGA §
21-2-5 (c) that there was “insufficient time to
strike” West’s name “or reprint the ballots.” See Order at 11 . Citing
OCGA §
21-2-5 (c), the court ordered the Secretary to “post notices .
....
...De la Cruz from the
9
ballot or strike Ms. De la Cruz’s name from the ballot if the ballots
have been printed.” See Order at 11. That superior court declined to
make an express finding about time under OCGA §
21-2-5 (c) but
ordered in the alternative that, if there was insufficient time to
strike De la Cruz’s name or reprint ballots, the Secretary “shall
ensure that a prominent notice is placed at each affected polling
place advising voters of the disqualification of Ms....
...See, e.g., Catoosa County Republican Party v. Henry,
319 Ga. 794, 800 (___
SE2d ___) (2024) (explaining that our precedent requires parties challenging a
11
II. Standard of Review
Qualification challenges under OCGA §
21-2-5 come to us on
appeal from a superior court’s appellate review of an agency
decision. See OCGA §
21-2-5 (e) (allowing a petition for review of the
Secretary of State’s decision to the Fulton County Superior Court
and appeal of that decision to this Court or the Court of Appeals, as
provided by law)....
...We ordered an
accelerated schedule and the parties briefed and argued the appeals within one
week of the first discretionary appeal being granted.
12
Powell,
284 Ga. 550, 552 (670 SE2d 62) (2008) (noting that OCGA §
21-2-5 (e) mirrors the Administrative Procedure Act with respect to
superior court review of agency decision and applying the same
standard of review)....
...West as an option before the election.” It thus concluded “that
there is insufficient time to strike the candidate’s name or reprint
the ballots.”
Whether there is “insufficient time to strike the candidate’s
name or reprint the ballots,” see OCGA §
21-2-5 (c), is a question of
fact, so the “any evidence” standard applies....
...Pigg), must be
dismissed because the Georgia Republican Party was not a party to
20 The Secretary’s contention, raised in its appeal regarding the De la
Cruz electors, that the relief the superior court ordered was too expansive also
fails. The superior court cited and followed OCGA §
21-2-5 (c)....
...obligations by reason of his claimed interest.
The De la Cruz electors do not cite OCGA §
9-11-19 (a). They
nevertheless contend that De la Cruz did not receive the required
notice from the Secretary of State that her candidacy was being
challenged, see OCGA §
21-2-5 (b), that she has an independent
interest in her candidacy, that she has a right to be made a party to
the proceedings, and that striking her name from the ballot without
making her a party violates her due process rights.
These claims fail....
