O.C.G.A. § 21-2-526 (2019)
Trial by jury
(a) All issues of a contest shall be fully tried and determined by the court without the aid and intervention of a jury, unless a litigant to the contest shall demand a trial by jury at any time prior to the call of the case; and the court shall determine that it is an issue which under other laws of this state the litigant is entitled to have tried by a jury. Upon such determination, a jury shall be impaneled and the cause shall proceed according to the practice and procedure of the court in jury cases. (b) In a case contesting the result of a primary or election held in two or more counties, each issue to be tried by a jury shall be tried by a jury impaneled in the county where such issue or a part thereof arose. Such jury shall be impaneled by the superior court of the county in which the jury trial is to be conducted; such trial shall be presided over by the judge as described in Code Section 21-2-523; and such trial shall proceed, insofar as practicable, as though it were being conducted in the county of the superior court having jurisdiction of the contest. (c) In a case contesting the result of a primary or election held within a single county, the court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In a case contesting the result of a primary or election held in two or more counties, the court shall require each jury impaneled to return only a special verdict in the form of a special written finding upon each issue of fact. In a case where a special verdict is to be rendered, the court shall submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several
ELECTIONS & PRIMARIES
special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If, in so doing, the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his or her right to a trial by jury of the issue so omitted unless before the jury retires he or she demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
History
Code 1933, § 34-1707, enacted by Ga. L.
1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.
Annotations
JUDICIAL DECISIONS Trial by jury in election contest not required. - Trial court properly denied two challengers’ petition contesting a city’s general election as the challengers failed to show fraud, misconduct, irregularity or illegality; a new election manager was not required for each election; a jury trial was not warranted in the matter; and there was no basis shown to set aside the results of the runoff election. Fuller v. Thomas, 284 Ga. 397, 667 S.E.2d 587, 2008 Ga. LEXIS 807 (2008). 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).
OPINIONS OF THE ATTORNEY GENERAL 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.
RESEARCH REFERENCES Am. Jur. 2d. 26 Am. Jur. 2d, Elections, § 427.
C.J.S. 29 C.J.S., Elections, § 534 et seq.