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Non-Professional Dissection of Georgia Statute Governing Ballot Challenges

Let me first get a caveat out of the way: I am not an attorney, and the views expressed by me on this my personal web site are mine. Any reliance upon such opinion of mine shall be construed as being at the observer’s own risk.

Since there’s been some initially positive movement on a Georgia ballot access case against Obama, I wanted to step through the actual process, per Georgia statute.

The following statute can be found by going to Lexis-Nexus, type in “challenge candidate” (sans quotes), click on the “natural language” radio button, then scroll down to section 21-2-5.

Copyright 2011 by The State of Georgia
All rights reserved.

*** Current Through the 2011 Extraordinary Session ***


O.C.G.A. § 21-2-5  (2011)

§ 21-2-5.  Qualifications of candidates for federal and state office; determination of qualifications

(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.

Judge Malihi has ruled that Barack Obama is, in fact, a candidate with respect to Georgia statute.

(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. 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 Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering.

The phrase, “any elector who is eligible to vote for a candidate” literally means a Georgian citizen who can prove that they are legally eligible to vote in the 2012 general election.

In general, the statute is effectively saying that either the GA SoS or the described elector can initiate a challenge. The opposite, of course, is also true: if there is no challenge initiated by either originating  party, then there is zero chance of legally making essentially any challenge. The only other restriction in this section to the challenging process is time frame; the SOS can challenge at any time prior to that candidate’s election (not sure if “election” in this section refers to the Super Tuesday March 6, 2012 primary election or the Tuesday November 6, 2012 general election). However, a citizen elector can only challenge a candidate no more than two weeks after said candidate has been submitted to the SoS’ office.

Notice that Obama’s attorney never challenged what is otherwise known as “standing” of the citizen challenger, because according to this section, such a citizen has standing to make a challenge. Further, it is critically important to note that, in 2008 — the year and campaign at the end of which eligibility challenges began to take full stride — it was well beyond the time that a Georgian citizen (in the case of the State of Georgia) could legally challenge Obama’s being included on the ballot. In the legal profession, my understanding is that this otherwise means that this time in 2012 is now “ripe” for such a challenge.

Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.

By law, and assuming that the challenger fulfills the obligations of the challenge per the description of the written complaint, the SoS must subsequently let the challenged candidate know about said challenge and then request an Administrative Hearings judge to take the case.

Notice that the law takes the politics out of the decision-making process. The SoS must make the judicial request because the law says so, not because they necessarily want to.

So, by definition of statute, going to Court over a challenge is not in question; it’s imperative, again assuming that the complaint is in proper form.

This is the point at which we find the present case. Therefore, per the ending of the above paragraph, the judge must subsequently report his findings back to the SoS; we know that this is slated to occur on January 26 at 9am.

(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering.

At this point, the SoS must essentially make a determination — based on the previously-reported findings of the administrative law judge — as to whether or not the candidate is qualified “to seek and hold” the specified public office.

If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate’s name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate’s name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.

The “if” at the beginning of this part of paragraph c is certainly a very big “if.” Quite candidly, I think it would be exceptionally premature to begin speculating what would actually happen if Barack Obama were to be found to be disqualified from the Georgia ballot.

Regardless, assuming that the SoS determines that Obama is not qualified, either side can appeal the decision, which leads us to paragraph e…

(d) In the event that a candidate pays his or her qualifying fee with a check that is subsequently returned for insufficient funds, the Secretary of State shall automatically find that such candidate has not met the qualifications for holding the office being sought, unless the bank, credit union, or other financial institution returning the check certifies in writing by an officer’s or director’s oath that the bank, credit union, or financial institution erred in returning the check.

(e) The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the Secretary of State by filing a petition in the Superior Court of Fulton County within ten days after the entry of the final decision by the Secretary of State.

As a matter of reference, Fulton County, Georgia, is at the heart of metropolitan Atlanta and is the county in which the city of Atlanta is located.

On an SoS decision, whichever way it goes, either the citizen elector or the candidate can appeal no later than 10 days after such decision.

The filing of the petition shall not itself stay the decision of the Secretary of State; however, the reviewing court may order a stay upon appropriate terms for good cause shown.

In the case of an appeal by either side, such an appeal will not “stay” (meaning, to stop from moving forward) the SoS’ decision, even though the appellate Court could issue such an order.

As soon as possible after service of the petition, the Secretary of State shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court.

Essentially, once either side has initiated an appeal, the SoS has to send the entire previously-adjudicated case to the appellate Court.

The review shall be conducted by the court without a jury and shall be confined to the record.

The appeal will be overseen by only the judge(s) assigned and, at least in theory, only what’s already been submitted to the then-lower Court as evidence for disqualifying consideration is what will be reviewed. In other words, nothing new can be added at this point.

The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact.

In reviewing the appeal, the appellate Court essentially cannot go beyond the scope in considering the seriousness of the evidence than what the SoS has already determined prior to the appeal.

The court may affirm the decision or remand the case for further proceedings.

The appellate Court can basically say, “The SoS is correct, so that’s it,” or they can “remand” (meaning to send back) the case back to the/an administrative law judge for further consideration.

The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are:

(1) In violation of the Constitution or laws of this state;

(2) In excess of the statutory authority of the Secretary of State;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

Essentially, the appellate Court can materially change the SoS’ decision if the above enumerated issue(s) have been found to basically violate the right(s) of the party appealing the SoS’ decision.

An aggrieved party may obtain a review of any final judgment of the superior court by the Court of Appeals or the Supreme Court, as provided by law.

Presumably (on my part), the party that believes they’re not being properly treated by the SoS’ decision can request a higher State Court to review their case. The assumption here is that such a review can be petitioned up to the State Supreme Court.

As you can see, we have quite a deliberate process laid out regarding ballot challenges here in Georgia. And, either way that an SoS decision is made, appealing that decision could go on for a while.

Hopefully this helps you to make sense of what the otherwise plainly-written State statutes likely say.



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