TITLE 21 ELECTIONS

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

ARTICLE 14 SPECIAL ELECTIONS AND PRIMARIES GENERALLY; MUNICIPAL TERMS OF OFFICE

21-2-540. Conduct of special elections generally.

Every special election shall be held and conducted in all respects in accordance with the provisions of this chapter relating to general elections; and the provisions of this chapter relating to general elections shall apply thereto insofar as practicable and as not inconsistent with any other provisions of this chapter. All special elections held at the time of a general election, as provided by Code Section 21-2-541, shall be conducted by the poll officers by the use of the same equipment and facilities, so far as practicable, as are used for such general election.
At least 29 days shall intervene between the call of a special primary and the holding of same, and at least 29 days shall intervene between the call of a special election and the holding of same. The period during which candidates may qualify to run in a special primary or a special election shall remain open for a minimum of two and one-half days. Special elections which are to be held in conjunction with the presidential preference primary, a state-wide general primary, or state-wide general election shall be called at least 90 days prior to the date of such presidential preference primary, state-wide general primary, or state-wide general election; provided, however, that this requirement shall not apply to special elections held on the same date as such presidential preference primary, state-wide general primary, or state-wide general election but conducted completely separate and apart from such state-wide general primary or state-wide general election using different ballots or voting equipment, facilities, poll workers, and paperwork. Notwithstanding any provision of this subsection to the contrary, special elections which are to be held in conjunction with the state-wide general primary or state-wide general election in 2014 shall be called at least 60 days prior to the date of such state-wide general primary or state-wide general election.
1. Notwithstanding any other provision of law to the contrary, a special primary or special election to fill a vacancy in a county or municipal office shall be held only on one of the following dates which is at least 29 days after the date of the call for the special election:
  1. In odd-numbered years, any such special election shall only be held on:
    1. The third Tuesday in March;
    2. The third Tuesday in June;
    3. The third Tuesday in September; or
    4. The Tuesday after the first Monday in November; and
  2. In even-numbered years, any such special election shall only be held on:
    1. The third Tuesday in March; provided, however, that in the event that a special election is to be held under this provision in a year in which a presidential preference primary is to be held, then any such special election shall be held on the date of and in conjunction with the presidential preference primary;
    2. The date of the general primary; or
    3. The Tuesday after the first Monday in November;
    provided, however, that, in the event that a special election to fill a federal or state office on a date other than the dates provided in this paragraph has been scheduled and it is possible to hold a special election to fill a vacancy in a county, municipal, or school board office in conjunction with such special election to fill a federal or state office, the special election to fill such county, municipal, or school board office may be held on the date of and in conjunction with such special election to fill such federal or state office provided all other provisions of law regarding such elections are met.
2. Notwithstanding any other provision of law to the contrary, a special election to present a question to the voters shall be held only on one of the following dates which is at least 29 days after the date of the call for the special election:
  1. In odd-numbered years, any such special election shall only be held on the third Tuesday in March or on the Tuesday after the first Monday in November; and
  2. In even-numbered years, any such special election shall only be held on:
    1. The date of and in conjunction with the presidential preference primary if one is held that year;
    2. The date of the general primary; or
    3. The Tuesday after the first Monday in November.
3. The provisions of this subsection shall not apply to:
  1. Special elections held pursuant to Chapter 4 of this title, the "Recall Act of 1989," to recall a public officer or to fill a vacancy in a public office caused by a recall election; and
  2. Special primaries or special elections to fill vacancies in federal or state public offices.
Except as otherwise provided by this chapter, the superintendent of each county or municipality shall publish the call of the special election.
Candidates in special elections for partisan offices shall be listed alphabetically on the ballot and may choose to designate on the ballot their party affiliation. The party affiliation selected by a candidate shall not be changed following the close of qualifying.

(Code 1933, §§ 34-806, 34-1314, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 308, § 35; Ga. L. 1969, p. 329, § 8A; Ga. L. 1984, p. 1, § 14; Ga. L. 1984, p. 638, § 3; Ga. L. 1986, p. 382, § 6; Ga. L. 1986, p. 1538, § 3; Ga. L. 1991, p. 316, § 1; Ga. L. 1994, p. 1406, § 27; Ga. L. 1996, p. 145, § 21; Ga. L. 1997, p. 590, § 42; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, §§ 43, 44; Ga. L. 2005, p. 253, § 64/HB 244; Ga. L. 2008, p. 131, § 1/HB 296; Ga. L. 2010, p. 914, § 25/HB 540; Ga. L. 2012, p. 995, §§ 41, 42/SB 92; Ga. L. 2014, p. 1, § 8/HB 310; Ga. L. 2017, p. 2, § 3/HB 42.)

The 2008 amendment, effective January 1, 2010, in paragraph (c)(1), deleted "a special election to present a question to the voters or" preceding "a special primary" near the beginning; added paragraph (c)(2); redesignated former paragraph (c)(2) as present paragraph (c)(3); added "and" at the end of subparagraph (c)(3)(A); and made minor punctuation changes.

The 2010 amendment, effective July 1, 2010, substituted "90 days" for "60 days" in the last sentence of subsection (b).

The 2012 amendment, effective July 1, 2012, in the second sentence of subsection (b), inserted "the presidential preference primary,", twice inserted "presidential preference primary," and inserted commas; in subparagraph (c)(1)(B), added "or" to the end of division (c)(1)(B)(ii), deleted former division (c)(1)(B)(iii), which read: "The third Tuesday in September; or", and redesignated former division (c)(1)(B)(iv) as present division (c)(1)(B)(iii); and substituted the present provisions of subsection (e) for the former provisions, which read: "Candidates in special elections for partisan offices shall be listed on the ballot according to party affiliation."

The 2014 amendment, effective January 21, 2014, added the last sentence to subsection (b).

The 2017 amendment, effective February 23, 2017, added the proviso at the end of paragraph (c)(1).

Cross references.

- Special elections in counties and municipalities pertaining to authorization of sale of distilled spirits by the drink, § 3-4-90 et seq.

Authorization of sale of distilled spirits by private clubs, § 3-7-40.

Administrative Rules and Regulations.

- Calls for primaries and elections, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Dates of Primaries and Elections, Sec. 183-1-8-.01.

Law reviews.

- For article on the 2014 amendment of this Code section, see 31 Ga. St. U.L. Rev. 93 (2014).

JUDICIAL DECISIONS

Cited in City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 765 S.E.2d 33 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions decided under former Code 1933, § 34-1904 are included in the annotations for this Code section.

Applicability to rerun of election.

- The provisions of O.C.G.A. § 21-2-540, concerning special elections, do not apply to the rerun of an election ordered by a superior court judge based upon the sustaining of an election contest. 1984 Op. Att'y Gen. No. U84-49.

Dates controlled by general legislation.

- O.C.G.A. § 21-2-540 establishes by general legislation the only appropriate dates upon which referendum elections may be held, and any contradictory local legislation passed during the same session of the General Assembly would not be operative as to the setting of such an election date. 1991 Op. Att'y Gen. U91-23.

Time period may not be varied by local Act.

- A provision of a local Act requiring that a special election be held before the expiration of 29 days between the call of the election and election itself is invalid. 1980 Op. Att'y Gen. No. 80-27.

Special election to fill a vacancy must be held within a reasonable time, in the absence of a specific time limit. 1969 Op. Att'y Gen. No. 69-514.

Vacancy in office existing for six years can be filled by special election.

- A vacancy in the office of justice of the peace (now magistrate), notwithstanding the fact that it has existed for some six years, can lawfully be filled by the call of a special election. 1967 Op. Att'y Gen. No. 67-435.

Probate judge calls special primary.

- While the Georgia Election Code does not specify the exact method of calling a special primary, the judge of the probate court is the officer generally having jurisdiction of primaries and the judge is the proper person to call a special primary. 1970 Op. Att'y Gen. No. U70-128.

It is possible to hold a special primary at the same time as the general primary. 1970 Op. Att'y Gen. No. U70-120.

School bond election called by county education board may be held concurrently with general election. 1965-66 Op. Att'y Gen. No. 65-9.

Former liquor referendum provision controls.

- In the event of a conflict between former Code 1933, §§ 58-1003, and 34-806 (see O.C.G.A. § 21-2-540), concerning the date for holding a liquor referendum, former Code 1933, § 58-1003 controlled. 1979 Op. Att'y Gen. No. 79-23.

Applicable time period.

- Thirty-days (now 29-days) provision of this section should be followed notwithstanding the shorter time periods prescribed by pre-1964 laws as to certain offices. 1968 Op. Att'y Gen. No. 68-426 (see O.C.G.A. § 21-2-540).

Listing of party affiliation on ballot.

- A candidate in an election may not list a party affiliation on the ballot unless the candidate has been nominated in a primary or unless the candidate falls within certain statutory exceptions to this rule. 1970 Op. Att'y Gen. No. U70-120.

Filling unexpired term of Commissioner of Labor.

- Since the Commissioner of Labor is routinely elected at the same time as the Governor and holds his or her office for the same term, an election which must be held to fill the balance of the unexpired term after the Commissioner withdraws is one "that arises from some exigency or special need outside the usual routine," which would be categorized as a "special election" under Georgia law. The Georgia Election Code certainly authorizes, but does not require, a special primary in this situation. 1992 Op. Att'y Gen. No. 92-11.

Houston County.

- Where the local law creating the board of commissioners for Houston County, as amended, provides that, with regard to vacancies occurring more than one year prior to the expiration of the term of office, the vacancy "shall be filled by a special election called by the election superintendent of Houston County in the same manner as in the case to fill vacancies in other county offices . . .," the general law relating to the filling of a vacancy on the county commission is not applicable, and the special election to fill the vacancy in the office of county commissioner should be conducted pursuant to the general special election provisions of the Georgia Election Code, O.C.G.A. §§ 21-2-540 and21-2-541, as is the case with vacancies in other county offices where there is no specific provision which applies. 1990 Op. Att'y Gen. No. U90-9.

Vacancies in offices of mayor and council members for City of Willacoochee.

- Vacancies in the offices of mayor and council members for the City of Willacoochee should be filled by special election held on a statutorily authorized date and not by appointment of the remaining members of the city council. 2008 Op. Att'y Gen. No. U2008-3.

Prospective resignation of member of Congress does not become effective until the date named therein and no writ of election to fill the vacancy may issue until that date. 1945-47 Op. Att'y Gen. p. 241 (decided under former Code 1933, § 34-1904).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 4; 26 Am. Jur. 2d, Elections, § 268 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 141 et seq., 214.

ALR.

- Validity of special election as affected by publication or dissemination of matter or information, extrinsic to the question as submitted, regarding nature or effect of the proposal, 122 A.L.R. 1142.

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