O.C.G.A. § 21-2-525 (2019)
Hearing; powers of court generally
(a) Within 20 days after the return day fixed in the notice as provided in subsection (a) of Code Section 21-2-524 to the defendant, the presiding judge shall fix a place and time for the hearing of the contest proceeding. Such judge may fix additional hearings at such other times and places as are necessary to decide the contest promptly. (b) The court having jurisdiction of the action shall have plenary power, throughout the area in which the contested primary or election was conducted, to make, issue, and enforce all necessary orders, rules, processes, and decrees for a full and proper understanding and final determination and enforcement of the decision of every such case, according to the course of practice in other civil cases under the laws of this state, or which may be necessary and proper to carry out this chapter. The court shall have authority to subpoena and to compel the attendance of any officer of the primary or election complained of and of any person capable of testifying concerning the same; to compel the production of evidence which may be required at such hearing, in like manner and to the same extent as in other civil cases litigated before such court; to take testimony; and to proceed without delay to the hearing and determination of such contest, postponing for the purpose, if necessary, all other business.
ELECTIONS & PRIMARIES
(c) The court may, in its discretion, limit the time to be consumed in taking testimony, dividing such time equitably among all litigants concerned, with a view therein to the circumstances of the matter and to the proximity of the next succeeding primary or election.
History
Ga. L. 1893, p. 124, § 1; Civil Code 1895, § 107; Civil Code 1910, § 121; Code
1933, § 34-2801; Code 1933, § 34-1706, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.
Annotations
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former § 21-3-425 are included in the annotations for this Code section. Time for hearing. - The requirement that the judge must set a hearing date “within 20 days after the return day” provides a deadline by which a date must be set. Head v. Williams, 269 Ga. 894, 506 S.E.2d 863 (decided under former § 21-3425). The trial court did not violate the statute by setting a hearing date on the same day as the return day fixed in the notice to the defendants where from the time the petitioner filed the petitioner’s petition, the petitioner knew that the petitioner had the burden of presenting evidence to support the petitioner’s allegations of illegal voting and tampering with absentee ballots and where the petitioner had six days’ notice that a hearing date was being set and three days’ notice of the actual date of the hearing. Head v. Williams, 269 Ga. 894, 506 S.E.2d 863 (decided under former § 21-3-425). When court required to inspect vote recorder ballots. - In the absence of any statutory authority authorizing a hand count and determination by election officials of voter intent with regard to nondefective ballots voted by means of vote recorders, and in the absence of allegations or proof of fraud, misconduct by election officials, improper functioning of vote recorders or tabulating machines, a court, in an election contest, is not bound under this section to require the inspection or hand count of nondefective ballots voted by means of vote recorders. Rary v.
Guess, 129 Ga. App. 102, 198 S.E.2d 879, 1973 Ga. App. LEXIS 898 (1973). No error in limiting discovery and denying continuance regarding direct-recording electronic voting system. - 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). Judge’s function under this section is not judicial. Carter v. James, 96 Ga. 280, 23 S.E. 201, 1895 Ga. LEXIS 57 (1895). When evidence of defendant’s liability is conflicting, court may hold hearing on costs. - When the presiding judicial officer hearing a contested election case issued a fi. fa. for costs and the evidence of the defendant’s liability was conflicting, the judge of the superior court did not abuse judicial discretion in issuing, upon petition, a restraining order against execution of the fi. fa. until a hearing could be held on the issues raised by the pleadings. McLeod v. Reid, 120 Ga. 785, 48 S.E. 315, 1904 Ga. LEXIS 707 (1904). Decision of the ordinary (now probate judge) in a contested “fence or no fence” election is final. Skrine v.
Jackson, 73 Ga. 377, 1884 Ga. LEXIS 132 (1884), overruled, Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536, 1949 Ga. LEXIS 607 (1949). Burden of showing election returns inaccurate is upon the intervenor. Brown v. City of Atlanta, 152 Ga. 283, 109 S.E. 666, 1921 Ga. LEXIS 78 (1921). Decision of superior court judge final. - Where the election of a county officer was contested, and the evidence which was taken before a justice of the peace of the county, together with all the papers filed in the contest, was duly transmitted to the judge of the superior court of
the circuit in which the contest arose, the decision by the latter therein is final, and the writ of certiorari will not lie to review the contest. Robertson v. Easley, 20 Ga. App. 258, 92 S.E. 1027, 1917 Ga. App. LEXIS 853 (1917). Ordinary’s decision in municipal election contest is final. - Where an ordinary renders a decision in a contest over a municipal election, the ordinary does not act in a judicial capacity, thus a writ of certiorari to the superior court to review the contest does not lie. Harris v. Glenn, 141 Ga. 687, 81 S.E. 1103, 1914 Ga. LEXIS 118 (1914).
RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, §§ 413 et seq., 424 et seq.
C.J.S. 29 C.J.S., Elections, § 534 et seq.