O.C.G.A. § 21-2-522 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-3101 and former Code Section 21-3-422 are included in the annotations for this Code section. Construction. - The Georgia Election Code provides liberal rules for the contesting of elections and strict penalties for violations. Laite v. Stewart, 112 Ga. App. 853, 146 S.E.2d 553, 1965 Ga. App. LEXIS 852 (1965). Former Code 1933, § 34-1703 (see now O.C.G.A. § 21-2-522) only provides a means for contesting the result of a completed election. Commit-

tee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534, 1971 Ga. LEXIS 567 (1971). Failure to place a candidate’s nickname on the ballot could not be considered an act of misconduct within the meaning of O.C.G.A. § 21-2-522(1). Maye v. Pundt, 267 Ga. 243, 477 S.E.2d 119. Even assuming that a candidate had a right to have a nickname placed on the ballot and that failure to do so constituted an act of misconduct, the candidate failed to carry the candidate’s burden to show that failure to do so changed or placed in doubt the result of the election. Maye v. Pundt, 267 Ga. 243, 477 S.E.2d 119.

Required showing. - A party seeking to contest an election on the grounds that legal voters were improperly turned away at the polls need not establish how rejected voters would have voted; the party need only establish that sufficient legal votes were rejected to change or place in doubt the result. Whittington v. Mathis, 253 Ga. 653, 324 S.E.2d 727, 1985 Ga. LEXIS 511 (1985). An unsuccessful candidate for city council, who contested the election under former § 21-2-422(1), failed to show that the alleged misconduct impacted on the number of voters necessary for the candidate to carry the candidate’s burden of showing that the alleged misconduct was sufficient to change or place in doubt the result of the election. Johnson v. Collins, 260 Ga. 152, 260 Ga. 159, 391 S.E.2d 113, 1990 Ga. LEXIS 175 (1990) (decided under former § 21-3-422). Election challenger’s timely filed election contest, filed after the election, was erroneously dismissed, as such was not moot merely because the challenger failed to file the contest prior to the election, given that no statutory provision or case law supported this proposition, and the petition sufficiently stated a claim upon which relief could be granted. Allen v. Yost, 281 Ga. 102, 636 S.E.2d 517, 2006 Ga. LEXIS 836 (2006). Evidence sufficient to show doubt as to validity of election results. - See Stuckey v. Storms, 265 Ga. 491, 458 S.E.2d 344, 1995 Ga. LEXIS 516 (1995). Because the trial court’s finding that four voters in a local election were improperly disenfranchised was not clearly erroneous, and the wrongful rejection of those votes was sufficient to place the results of the election in doubt pursuant to O.C.G.A. § 21-2-522(3), the trial court’s act of ordering a new election was upheld on appeal. McIntosh County Bd. of Elections v. Deverger, 282 Ga. 566, 651 S.E.2d 671, 2007 Ga. LEXIS 605 (2007). Election returns carry a presumption of validity. Johnson v. Rheney, 245 Ga. 316, 264 S.E.2d 872, 1980 Ga. LEXIS 779 (1980); Walls v. Garrett, 247 Ga. 640, 277 S.E.2d 903, 1981 Ga. LEXIS 783 (1981). In the absence of proof to the contrary, elections held under legally constituted

authority are presumed to be regular and valid. Lowe v. Weltner, 118 Ga. App. 635, 164 S.E.2d 919, 1968 Ga. App. LEXIS 1483 (1968), cert. denied, 396 U.S. 820, 90 S. Ct. 58, 24 L. Ed. 2d 70, 1969 U.S. LEXIS 861 (1969). Burden of establishing irregularity or illegality sufficient to change or place in doubt the election result is on the party contesting the election. Walls v. Garrett, 247 Ga. 640, 277 S.E.2d 903, 1981 Ga. LEXIS 783 (1981). Trial court properly invalidated the primary election and ordered that a new election be held since plaintiff candidate satisfied the burden under O.C.G.A. § 212-522(1) by affirmatively showing that a sufficient number of votes were irregularly recorded to make a difference or cast doubt on the outcome. Howell v. Fears, 275 Ga. 627, 571 S.E.2d 392, 2002 Ga. LEXIS 929 (2002). In an election contest under O.C.G.A. § 21-2-522 regarding a race for lieutenant governor, the small number of irregularities involved with the direct-recording electronic (DRE) voting system and the lack of evidence of misconduct by any election official was insufficient to overcome the winner’s margin of victory of 123,172 votes. Further, the trial court did not err in limiting discovery of the DRE machines or in denying the challengers’ motion for a continuance and jury trial demand. Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245, 2019 Ga. LEXIS 724 (2019). Required showing. - Under former Code 1933, § 34-1703 (see now O.C.G.A. § 21-2-522), the contestant must show that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt on the election. Walls v. Garrett, 247 Ga. 640, 277 S.E.2d 903, 1981 Ga. LEXIS 783 (1981). Failure to give required oaths to voters receiving assistance along with other irregularities were sufficient to cast doubt on the results of an election. McCranie v. Mullis, 267 Ga. 416, 478 S.E.2d 377. Three votes sufficient to cast doubt on election result. - A difference of three votes is enough to cast the results of

ELECTIONS & PRIMARIES

an election in doubt and is a sufficient ground to contest the election. Bell v. Cronic, 248 Ga. 457, 283 S.E.2d 476, 1981 Ga. LEXIS 1026 (1981). Consideration of consequences of misconduct. - The authority of courts to declare an election void regardless of the consequences of the misconduct or irregularities claimed no longer exists. Laite v. Stewart, 112 Ga. App. 853, 146 S.E.2d 553, 1965 Ga. App. LEXIS 852 (1965). Effect of harmless irregularities. - Where election is fairly and honestly conducted, it will not be invalidated by mere irregularities which are not shown to have affected the result. Miles v. State, 96 Ga. App. 610, 101 S.E.2d 173, 1957 Ga. App. LEXIS 647 (1957). Not necessary to determine vote denial allegation where different result not contended. - Where it was not contended that the result of the election would have been different, it was unnecessary to determine whether an unspecified number of persons, whose names did not appear on the voter’s list for the last general election, were properly or improperly denied the right to vote in an election held for the purpose of authorizing a bond issue within a county school district. Pinion v. Walker County Sch. Dist., 203 Ga. 99, 45 S.E.2d 405, 1947 Ga. LEXIS 562 (1947). Equitable remedy could not be greater than if rights not violated by referendum vote. - Equitable relief sought by the petitioners was denied because if the trial court had not erred, the referendum still would have passed and the petitioners would be part of the city; thus, the petitioners were asking the court to put them in a better position than they would be in if their rights had not been violated. Harris v. City of S. Fulton, 358 Ga. App. 788, 856 S.E.2d 361, 2021 Ga. App. LEXIS 132 (2021). Exclusion of an ineligible nominee will not change the result of an election or cast doubt upon its outcome so that an election contest predicated on such exclusion can be maintained. Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189, 1969 Ga. App. LEXIS 1184 (1969). Objections to irregularities in the nomination of a candidate should be

taken prior to election and it is too late to object after the nominee’s name has been placed on the ballot and the nominee has been elected to office. Tate v. Morley, 223 Ga. 36, 153 S.E.2d 437, 1967 Ga. LEXIS 404 (1967). Illegal votes ground for contesting municipal election. - Although the Georgia Election Code was not applicable by its terms to municipal elections under former Code 1933, § 34-102 (see now O.C.G.A. § 21-2-15), in the absence of any statutory grounds for contest in the former Municipal Code, the ground for contest in former Code 1933, § 34-102(c) (see now O.C.G.A. § 21-2-15) was a good ground of contest in a municipal election. Davidson v. Bryan, 242 Ga. 282, 248 S.E.2d 657, 1978 Ga. LEXIS 1171 (1978). Illegally issued absentee ballots need not be considered illegal votes as such because the ballot itself is still the expressed will of the elector. Johnson v. Rheney, 245 Ga. 316, 264 S.E.2d 872, 1980 Ga. LEXIS 779 (1980). Elector moving to new district within county. - An elector who moves residence to a new election district within the same county within 30 days prior to a primary or election may not vote in the election district in which the elector was formerly registered to vote, but should notify the board of registrars, so as to have the elector’s name appear on the proper list of electors. Taggart v. Phillips, 242 Ga. 484, 249 S.E.2d 268, 1978 Ga. LEXIS 1261 (1978). Showing that illegal votes affected outcome required. - To change or place in doubt the result of an election, it must be affirmatively shown that enough illegal votes were cast for the candidates involved so as to make a difference in the outcome. Miller v. Kilpatrick, 140 Ga. App. 193, 230 S.E.2d 328, 1976 Ga. App. LEXIS 1400 (1976). It must be shown that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt on the election. Taggart v. Phillips, 242 Ga. 484, 249 S.E.2d 268, 1978 Ga. LEXIS 1261 (1978). No estoppel against contestant unless participant in illegality. - Generally, unless the person contesting an elec-

tion participated in the illegality alleged, the person is not estopped to prove the illegality. Davidson v. Bryan, 242 Ga. 282, 248 S.E.2d 657, 1978 Ga. LEXIS 1171 (1978). Pre-election challenge not required. - There is no statutory provision requiring a candidate to challenge illegal registrants before the election. Davidson v. Bryan, 242 Ga. 282, 248 S.E.2d 657, 1978 Ga. LEXIS 1171 (1978). Mandatory nature of election law when pre-election enforcement sought. - All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after the election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by statute that the particular act is essential to the validity of an election, or that its omission shall render it void. Miles v. State, 96 Ga. App. 610, 101 S.E.2d 173, 1957 Ga. App. LEXIS 647 (1957) (decided under former Code 1933, § 34-3101). Petition to contest properly denied. - 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 election 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). In an election contest because the contestor did not present any evidence showing a factual basis to establish fraud by casting doubt on the counting of a single vote, but instead presented web site information, which had nothing to do with any miscounting of votes or the mishandling of any absentee ballots, such evidence was insufficient to support an election contest. Davis v. Dunn, 286 Ga. 582, 690 S.E.2d 389, 2010 Ga. LEXIS 175 (2010).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-1501 and former Code Section 21-3-422 are included in the annotations for this Code section. Requirements for invalidating election. - The governing authority of a municipality may not declare an election void unless a proper petition contesting the election has been filed and a hearing has been conducted at which sufficient evidence to void the election has been produced. 1985 Op. Att’y Gen. No. 85-17 (decided under former § 21-3-422). Recognition of prior valid acts. - Municipality may treat election ordered

as result of failure of prior election as a continuation of that prior election, recognizing those acts validly conducted. 1976 Op. Att’y Gen. No. 76-23 (decided under former Code 1933, § 34A-1501). Determination of candidate’s qualifications. - It is not the responsibility of a judge of the probate court, or a county board of elections, to determine the qualifications of a candidate in a general or special election, nor does the Georgia Election Code grant authority to either a judge of the probate court or a county board of elections to make a factual determination as to the eligibility of a potential candidate. 1976 Op. Att’y Gen. No. 76-90.

ELECTIONS & PRIMARIES

RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, §§ 389, 390. C.J.S. 29 C.J.S., Elections, § 435 et seq. ALR. Treatment of excess or illegal ballots

when it is not known for which candidate or on which side of a proposition they were cast, 155 A.L.R. 677. Effect of irregularities or defects in primary petitions - State cases, 14 A.L.R.6th 543.