Cross references.

- Prohibition against campaign activities by officers and employees of state while traveling in vehicles for which state is paying transportation mileage, § 50-19-8.

Law reviews.

- For article, "An Analysis of the Georgia Election Code," see 1 Ga. St. B. J. 299 (1965). For article, "Reasonable Restrictions on the Franchise: Georgia's Voter Identification Act of 2006," see 63 Mercer L. Rev. 1129 (2012). For article, "Judging Congressional Elections," see 51 Ga. L. Rev. 359 (2017).

JUDICIAL DECISIONS

Constitutional guarantees and protections.

- Although the federal Constitution confers no right to vote as such, it does guarantee to every citizen the right to participate on a fair and equal basis with all other citizens in the electoral process, once a state has chosen to select its public officials by popular vote. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

The right to vote, which encompasses such distinct concerns as the citizen's opportunity to cast a vote, the community's chance to be represented within a larger polity in proportion to its population, the racial group's ability to prevent the purposeful dilution of its voting power, the candidate's capacity to ensure a place on the ballot, and the constituent's chance to contribute to a chosen candidate implicates fundamental U.S. Const., amend. 1 and due process interests and is therefore protected, at least in part, by the due process and equal protection guarantees of U.S. Const., amend. 14 against state encroachment. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

The interests encompassed by the right to vote are among the liberties protected against state infringement by the due process guarantee. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

The right to vote is clearly fundamental, and is protected by both the due process and equal protection guarantees of U.S. Const., amend. 14. In either case, any alleged infringement of the right to vote must be carefully and meticulously scrutinized, for a state has precious little leeway in making it difficult for citizens to vote. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Denial or abridgment of voting rights.

- If the right to vote is denied altogether or abridged in a manner which renders the electoral process fundamentally unfair, a violation of due process may be found. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Discrimination amongst members of electorate.

- If the state discriminates in favor of some members of the electorate and against others, the equal protection guarantee may have been violated. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Conduct favoring "ins" against "outs".

- When so fundamental a right as voting is concerned, the courts have not hesitated to conclude that any conduct which favors the "ins" against the "outs" is impermissible. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

State may regulate exercise of suffrage.

- A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. This right is not absolute, for the states have the power to determine the conditions under which the right of suffrage may be exercised, absent the discrimination which the Constitution condemns. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Election laws to be strictly construed.

- The election law is in derogation of the common law and must be strictly construed. Schloth v. Smith, 134 Ga. App. 529, 215 S.E.2d 292 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Segregation of ballots by race not authorized.

- The Election Code clearly and most definitely does not authorize the practice of segregating the ballots used by Negroes and white persons. 1965-66 Op. Att'y Gen. No. 66-182.

Mental retardation not ground for removal of elector from electors list.

- There is no statutory or constitutional provisions which would permit removal of an elector from the electors list on the ground that the elector is mentally retarded; in fact, under O.C.G.A. § 37-4-104, the contrary is true with respect to those mentally retarded electors receiving treatment. 1981 Op. Att'y Gen. No. 81-11.

RESEARCH REFERENCES

ALR.

- Treating of voters by candidate for office as violation of corrupt practices or similar act, 2 A.L.R. 402.

Constitutionality and construction of statutes providing for proportional representation, or other system of preferential voting, in public elections, 110 A.L.R. 1521, 123 A.L.R. 252.

"At-Large" elections as violation of § 2 of Voting Rights Act of 1965 (42 USC § 1973), 92 A.L.R. Fed. 824.

CHAPTER 1 CONGRESSIONAL DISTRICTS

Law reviews.

- For article, "The History of Redistricting in Georgia," see 52 Ga. L. Rev. 1060 (2018).

21-1-1. Definitions and descriptions for use in designating congressional districts.

Reserved. Repealed by Ga. L. 2011, Ex. Sess., p. 208, § 3/HB 20EX, effective September 6, 2011.

Editor's notes.

- This Code section was based on Code 1933, § 34-1801, enacted by Ga. L. 1971, Ex. Sess., p. 89, § 1; Code 1933, § 34-1802, enacted by Ga. L. 1981, Ex. Sess., p. 131, § 1; Code 1981, § 21-2-3; Ga. L. 1991, Ex. Sess., p. 92, § 1; Ga. L. 1992, p. 335, § 1; Ga. L. 1992, p. 833, § 1; Ga. L. 1993, p. 118, § 1; Ga. L. 1998, p. 295, § 1; Code 1981, § 21-1-1, as redesignated Ga. L. 2001, Ex. Sess., p. 335, §§ 1, 4.

Ga. L. 2011, Ex. Sess., p. 208, § 1/HB 20EX, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Congressional Reapportionment Act of 2011.'"

21-1-2. Designation of congressional districts.

The General Assembly shall by general law divide the state into 14 congressional districts. There shall be elected one representative to the Congress of the United States from each such district by the electors of such district.

(Code 1981, §21-1-2, enacted by Ga. L. 2011, Ex. Sess., p. 208, § 4/HB 20EX.)

Cross references.

- Apportionment of House of Representatives and Senate, T. 28, C. 2.

Editor's notes.

- This Code section formerly pertained to designation of congressional districts. The former Code section was based on Orig. Code 1863, § 44; Code 1868, § 42; Ga. L. 1872, p. 12, § 1; Code 1873, § 40; Code 1882, § 40; Ga. L. 1890-91, p. 193, §§ 1-3; Civil Code 1895, § 31; Ga. L. 1905, p. 52, § 2; Ga. L. 1905, p. 54, § 2; Ga. L. 1905, p. 55, § 2; Ga. L. 1905, p. 57, § 2; Ga. L. 1905, p. 58, § 2; Ga. L. 1905, p. 60, § 2; Ga. L. 1905, p. 62, § 1; Ga. L. 1905, p. 63, § 2; Civil Code 1910, § 33; Ga. L. 1911, p. 146, § 1; Ga. L. 1912, p. 38, § 1; Ga. L. 1912, p. 41, § 1; Ga. L. 1912, p. 108, § 1; Ga. L. 1914, p. 23, § 2; Ga. L. 1914, p. 27, § 1; Ga. L. 1914, p. 29, § 1; Ga. L. 1914, p. 33, § 1; Ga. L. 1916, p. 17, § 1; Ga. L. 1917, p. 41, § 1; Ga. L. 1917, p. 44, § 1; Ga. L. 1918, p. 102, § 1; Ga. L. 1918, p. 106, § 1; Ga. L. 1919, p. 68, § 1; Ga. L. 1920, p. 34, § 1; Ga. L. 1920, p. 38, § 1; Ga. L. 1920, p. 48, § 1; Ga. L. 1920, p. 52, § 1; Ga. L. 1921, p. 88, § 1; Ga. L. 1924, p. 39, § 1; Ga. L. 1931, p. 46, §§ 1, 2; Code 1933, § 34-2301; Ga. L. 1964, p. 478, § 1; Code 1933, § 34-1801, enacted by Ga. L. 1971, Ex. Sess., p. 89, § 1; Ga. L. 1972, p. 235, § 1; Ga. L. 1981, Ex. Sess., p. 131, § 1; Code 1981, § 21-2-4; Ga. L. 1991, Ex. Sess., p. 92, § 2; Ga. L. 1992, p. 335, § 2; Ga. L. 1992, p. 833, § 2; Ga. L. 1993, p. 863, § 1; Code 1981, § 21-1-2, as redesignated by Ga. L. 2001, Ex. Sess., p. 335, §§ 2-4; Ga. L. 2005, p. 728, §§ 1, 2/HB 499 and was repealed by Ga. L. 2011, Ex. Sess., p. 208, § 4/HB 20EX, effective September 6, 2011.

Ga. L. 2011, Ex. Sess., p. 208, § 1/HB 20EX, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Congressional Reapportionment Act of 2011.'"

Ga. L. 2011, Ex. Sess., p. 208, § 2/HB 20EX and the attachment thereto identified as "Plan: congprop2 Plan Type: Congress Administrator: H167 User: Gina", not codified by the General Assembly, contains the description of the congressional districts and related definitions, effectiveness, and applicability provisions.

Law reviews.

- For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993).

JUDICIAL DECISIONS

Unconstitutionality of Second Congressional District.

- The Second Congressional District was drawn to segregate voters according to their race and so violated equal protection. Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995).

Unconstitutionality of Eleventh Congressional District.

- Race was the predominant, overriding factor explaining the General Assembly's decision to attach to the Eleventh District various appendages containing dense majority-black populations, thereby giving rise to a valid equal protection claim under the principles announced in Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2819, 125 L. Ed. 2d 511 (1993), and the district could not be sustained as narrowly tailored to serve a compelling governmental interest. Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).

Proof of improper assignment of voters.

- Parties alleging that a state has assigned voters on the basis of race are neither confined in their proof to evidence regarding the district's geometry and makeup nor required to make a threshold showing of bizarreness. Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995).

RESEARCH REFERENCES

Am. Jur. 2d.

- 16 Am. Jur. 2d, Constitutional Law, § 32.

C.J.S.

- 16 C.J.S., Constitutional Law, § 73 et seq.

ALR.

- Validity and construction of statute or ordinance relating to distribution of advertising matter, 114 A.L.R. 1446.

Propriety of using census data as basis for governmental regulations or activities - state cases, 56 A.L.R.5th 171.

Application of constitutional "compactness requirement" to redistricting, 114 A.L.R.5th 311.

State court jurisdiction over congressional redistricting disputes, 114 A.L.R.5th 387.

21-1-3. Continuation in office, dismissal, or appointment of members of constitutional or statutory boards or bodies for which membership based on residency within congressional district.

  1. Any member of any constitutional or statutory board or body who:
    1. Is in office on January 1 of the year following the year in which members of Congress are first elected from Georgia under any congressional redistricting Act; and
    2. Was appointed or otherwise selected (other than by election by the people) on the basis of residency within a congressional district

      shall have his or her eligibility or ineligibility to continue to serve determined as provided in this subsection. Such member shall serve out the term for which the member was appointed and shall represent the congressional district in which the member resides unless more members of the board or body than authorized by the applicable constitutional provision or statute reside within the same congressional district. In the event any congressional district in which there are residing therein more members of any such board or body than the number of members specified by the applicable constitutional provision or statute, the appointing authority shall designate which member or members representing the congressional district shall continue to serve as a member or members of the board or body. Any member not designated for continued membership shall cease to hold office as of the date of such designation by the appointing authority. If a congressional district is not represented on a board or body as specified by the applicable constitutional provision or statute, a vacancy shall exist. Such vacancy shall be filled by the appointing authority appointing to the board or body a member or members from the congressional district which does not have sufficient representation. In the case of an appointment to fill a vacancy created by the displacement of a member from a congressional district on the basis of residency, the initial appointment shall be for a term ending on the date on which the term of the member removed by the appointing authority in accordance with the foregoing requirement would have ended. The initial term of all other appointments to fill a vacancy as provided for in this Code section shall be set by the appointing authority in accordance with the schedule of expiration dates established by law for the terms of members of the board or body.

  2. The same rules provided for in subsection (a) of this Code section shall be applied insofar as may be practicable in the event a court of competent jurisdiction enters an order changing the composition of Georgia's congressional districts. In such event, such rules shall be applied as of January 1 of the year following the year in which members of Congress are first elected from Georgia under such court order. If such a court order is stayed, the application of this subsection shall likewise be stayed. If such a court order is subject to appeal but is not stayed and congressional elections are held under such court order, the application of this subsection likewise shall not be stayed.

(Code 1981, §21-1-3, enacted by Ga. L. 2011, Ex. Sess., p. 208, § 5/HB 20EX.)

Editor's notes.

- Ga. L. 2011, Ex. Sess., p. 208, § 1/HB 20EX, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Congressional Reapportionment Act of 2011.'"

CHAPTER 2 ELECTIONS AND PRIMARIES GENERALLY

Article 1 General Provisions.
Article 2 Supervisory Boards and Officers.
Part 1 State Election Board, County Board
of Elections, and County Board of Elections and Registration.
Subpart 1 State Election Board.
Subpart 2 County Board of Elections and County Board of Elections and Registration.
Subpart 3 Municipal Elections Conducted by Counties.
Part 2 SECRETARY OF STATE.
Part 3 SUPERINTENDENTS.
Part 4 POLL OFFICERS.
Article 3 Registration of and Committee
Organization of Political Parties and Bodies.
Article 4 Selection and Qualification of
Candidates and Presidential Electors.
Part 1 GENERAL PROVISIONS.
Part 2 POLITICAL PARTY AND NONPARTISAN PRIMARIES.
Part 3 Nomination and Qualification of
Independent Candidates, Candi- dates of Political Bodies,
and Presidential Electors.
Part 4 Nomination of Candidates of
Political Bodies for State- Wide Public Office by
Convention. Article 5
Presidential Preference Primary. Article 6
Registration of Voters. Article 7
Precincts and Polling Places. Article 8
Voting by Ballot. Article 8A
State-wide Voting Equipment. Article 9
Voting Machines and Vote Recorders Generally. Part 1

G ENERAL PROVISIONS

Part 2 VOTING MACHINES.
Part 3 VOTE RECORDERS AND TABULATING MACHINES [Repealed].
Part 4 OPTICAL SCANNING VOTING SYSTEMS.
Part 5 ELECTRONIC RECORDING VOTING SYSTEMS.
Part 6 ELECTRONIC BALLOTING.
Article 10 Absentee Voting.
Article 11 Preparation for and Conduct of Primaries and Elections.
Part 1 GENERAL PROVISIONS.
Part 2 PRECINCTS USING PAPER BALLOTS.
Part 3 PRECINCTS USING VOTING MACHINES.
Part 4 PRECINCTS USING VOTE RECORDERS [Repealed].
Part 5 PRECINCTS USING OPTICAL SCANNING VOTING EQUIPMENT.
Article 12 Returns.
Article 13 Contested Elections and Primaries.
Article 14 Special Elections and Primaries Generally; Municipal Terms of Office.
Article 15 Miscellaneous Offenses.
Cross references.

- Referendum for ratification or rejection of annexation resolution, § 36-36-58.

Elections relating to incurring of bonded debt by counties, municipalities, or other political subdivisions, § 36-82-1 et seq.

Special election for filing of vacancies in office of district attorney, § 45-5-3.2.

Administrative Rules and Regulations.

- Registration of electors, Official Compilation of the Rules and Regulations of the State of Georgia, State Election Board, Chapter 183-1-6.

Election districts and polling places, Official Compilation of the Rules and Regulations of the State of Georgia, State Election Board, Chapter 183-1-7.

Certification of voting systems, Official Compilation of the Rules and Regulations of the State of Georgia, Office of Secretary of State Elections Division, Chapter 590-8-1.

Help America Vote Act of 2002 Provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Office of Secretary of State Elections Division, Chapter 590-8-2.

Law reviews.

- For article discussing the evolution of municipal annexation law in Georgia in light of Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 178 S.E.2d 868 (1970), see 5 Ga. L. Rev. 499 (1971). For article, "Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks," see 67 Emory L. J. 545 (2018).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-101 et seq., former Code 1933, § 34-1514 and former Title 21, Chapter 3 are included in the annotations for this chapter.

Federal Constitution protects right of all qualified citizens to vote, in state as well as in federal elections. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Federal Constitution protects right of all qualified citizens to vote, in state as well as in federal elections. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Election administration is federally protected, although generally a state concern.

- The administration of elections is generally a matter of state concern, but United States Supreme Court decisions leave no room for doubt that voting rights are, at bottom, federally protected. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Fundamental liberties must not be obstructed by election practices.

- The "liberty" protected from state impairment by the due process clause of U.S. Const., amend. 14 includes the freedoms of speech and association guaranteed by U.S. Const., amend. 1. These freedoms under U.S. Const., amend. 1 extend to political activities such as running for elective office. State election practices must therefore serve legitimate state interest narrowly and fairly to avoid obstructing and diluting these fundamental liberties. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Voting restrictions strike at heart of representative government.

- The right to vote freely for the candidate of one's choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Infringement of right to suffrage carefully scrutinized.

- Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Right to have votes counted.

- Qualified citizens not only have a constitutionally protected right to vote, but also the right to have their votes counted, a right which can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot box stuffing. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Other rights illusory if right to vote undermined.

- No right is more precious in a free country than that of having a voice in the election of those who make the laws under which we, as good citizens, must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982) (decided under former Code 1933, § 34-1514).

Illegal votes ground for contesting municipal election.

- Although the Georgia Election Code is 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 former chapter 3, the ground for contest in former Code 1933, § 34-1703 (see now O.C.G.A. § 21-2-522(3)) is a good ground of contest in a municipal election. Davidson v. Bryan, 242 Ga. 282, 248 S.E.2d 657 (1978) (decided under former Code 1933).

Ga. L. 1964, Ex. Sess., p. 26 is a comprehensive law designed to regulate all elections in the state except municipal elections, and repeals any provision inconsistent with it. League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976) (decided under former Code 1933, § 34-101 et seq.)

Ga. L. 1964, Ex. Sess., p. 26, being a general comprehensive reorganization of election law, must control in elections legalizing alcoholic beverages. Buttrill v. Thomas, 126 Ga. App. 498, 191 S.E.2d 119 (1972) (decided under former Code 1933, § 34-101 et seq.)

Cited in Grogan v. Paulding County Democratic Executive Comm., 246 Ga. 206, 269 S.E.2d 467 (1980); McCreary v. Martin, 281 Ga. 668, 642 S.E.2d 80 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Ordinary (now judge of the probate court) should conduct election for justice of the peace (now magistrate) and should certify the returns to the Secretary of State. 1967 Op. Att'y Gen. No. 67-125 (decided under former Code 1933, § 34-1508).

ARTICLE 1 GENERAL PROVISIONS

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-101 are included in the annotations for this article.

Referendum required by special Act must be called and held at time specified in Act. See 1969 Op. Att'y Gen. No. 69-301 (decided under former Code 1933, § 34-101 et seq.).

Presentation of more than one question in special election.

- More than one question may be presented to municipal voters in a special election properly called for that purpose, absent specific limitations derived from the authority under which the question is to be submitted. 1976 Op. Att'y Gen. No. U76-16 (decided under former Ga. Law 1968, p. 885 et seq.).

RESEARCH REFERENCES

ALR.

- Power to enjoin holding of election, 70 A.L.R. 733.

Constitutionality and construction of statutes providing for proportional representation, or other system of preferential voting, in public elections, 110 A.L.R. 1521; 123 A.L.R. 252.

21-2-1. Short title; references to Chapter 3 of Title 21 or the municipal election code.

  1. This chapter shall be known and may be cited as the "Georgia Election Code."
  2. References in general and local law to the "Georgia Municipal Election Code," the "Municipal Election Code," or "Chapter 3 of Title 21" shall be deemed to refer to this chapter.

(Code 1933, § 34-101, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Cited in Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).

RESEARCH REFERENCES

ALR.

- What changes in voting practices or procedures must be precleared under § 5 of Voting Rights Act of 1965 (42 USCA § 1973c) - Supreme Court cases, 146 A.L.R. Fed. 619.

21-2-2. Definitions.

As used in this chapter, the term:

(.1) "Activities of daily living" includes eating, toileting, grooming, dressing, shaving, transferring, and other personal care services.

(.2) "Attendant care services" means services and supports furnished to an individual with a physical disability, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily living, and health related functions through hands-on assistance, supervision, or cuing.

  1. "Ballot" means "official ballot" or "paper ballot" and shall include the instrument, whether paper, mechanical, or electronic, by which an elector casts his or her vote.
  2. "Ballot marking device" means a pen, pencil, or similar writing tool, or an electronic device designed for use in marking paper ballots in a manner that is detected as a vote so cast and then counted by ballot scanners.

    (2.1) "Ballot scanner" means an electronic recording device which receives an elector's ballot and tabulates the votes on the ballot by its own devices; also known as a "tabulating machine."

  3. "Call" or "the call," as used in relation to special elections or special primaries, means the affirmative action taken by the responsible public officer to cause a special election or special primary to be held. The date of the call shall be the date of the first publication in a newspaper of appropriate circulation of such affirmative action.

    (3.1) "Campaign material" means any newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter referring to:

    1. A candidate whose name appears on the ballot in a primary or election;
    2. A referendum which appears on the ballot in a primary or election; or
    3. A political party or body which has a nominee or nominees on the ballot in a primary or election.

      Campaign material shall not include any written or printed matter that is used exclusively for the personal and private reference of an individual elector during the course of voting.

  4. "Custodian" means the person charged with the duty of testing and preparing voting equipment for the primary or election and with instructing the poll officers in the use of same.

    (4.1) "Direct recording electronic" or "DRE" voting equipment means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote. Such term shall not encompass ballot marking devices or electronic ballot markers.

  5. "Election" ordinarily means any general or special election and shall not include a primary or special primary unless the context in which the term is used clearly requires that a primary or special primary is included.
  6. "Election district" is synonymous with the terms "precinct" and "voting precinct."
  7. "Elector" means any person who shall possess all of the qualifications for voting now or hereafter prescribed by the laws of this state, including applicable charter provisions, and shall have registered in accordance with this chapter.

    (7.1) "Electronic ballot marker" means an electronic device that does not compute or retain votes; may integrate components such as a ballot scanner, printer, touch screen monitor, audio output, and a navigational keypad; and uses electronic technology to independently and privately mark a paper ballot at the direction of an elector, interpret ballot selections, communicate such interpretation for elector verification, and print an elector verifiable paper ballot.

  8. "General election" means an election recurring at stated intervals fixed by law or by the respective municipal charters; and the words "general primary" mean a primary recurring at stated intervals fixed by law or by the respective municipal charters.
  9. "Health related functions" means functions that can be delegated or assigned by licensed health care professionals under state law to be performed by an attendant.
  10. "Independent" means a person unaffiliated with any political party or body and includes candidates in a special election for a partisan office for which there has not been a prior special primary.
  11. "Managers" means the chief manager and the assistant managers required to conduct primaries and elections in any precinct in accordance with this chapter.
  12. "Municipal office" means every municipal office to which persons can be elected by a vote of the electors under the laws of this state and the respective municipal charters.
  13. "Municipality" means an incorporated municipality.
  14. "Nomination" means the selection, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election.
  15. "November election" means the general election held on the Tuesday next following the first Monday in November in each even-numbered year.
  16. "Numbered list of voters" means one or more sheets of uniform size containing consecutively numbered blank spaces for the insertion of voters' names at the time of and in the order of receiving their ballots or number slips governing admissions to the voting machines.
  17. "Oath" shall include affirmation.
  18. "Official ballot" means a ballot, whether paper, mechanical, or electronic, which is furnished by the superintendent or governing authority in accordance with Code Section 21-2-280, including paper ballots that are read by ballot scanners.
  19. "Official ballot label" means a ballot label prepared in accordance with Article 9 of this chapter and delivered by the superintendent to the poll officers in accordance with Code Section 21-2-328.

    (19.1) "Optical scanning voting system" means a system employing paper ballots on which electors cast votes with a ballot marking device or electronic ballot marker after which votes are counted by ballot scanners.

  20. "Paper ballot" or "ballot" means the forms described in Article 8 of this chapter.
  21. "Party nomination" means the selection by a political party, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election.
  22. Reserved.
  23. "Political body" or "body" means any political organization other than a political party.
  24. "Political organization" means an affiliation of electors organized for the purpose of influencing or controlling the policies and conduct of government through the nomination of candidates for public office and, if possible, the election of its candidates to public office, except that the term "political organization" shall not include a "subversive organization" as defined in Part 2 of Article 1 of Chapter 11 of Title 16, the "Sedition and Subversive Activities Act of 1953."
  25. "Political party" or "party" means any political organization which at the preceding:
    1. Gubernatorial election nominated a candidate for Governor and whose candidate for Governor at such election polled at least 20 percent of the total vote cast in the state for Governor; or
    2. Presidential election nominated a candidate for President of the United States and whose candidates for presidential electors at such election polled at least 20 percent of the total vote cast in the nation for that office.
  26. "Poll officers" means the chief manager, assistant managers, and clerks required to conduct primaries and elections in any precinct in accordance with this chapter.
  27. "Polling place" means the room provided in each precinct for voting at a primary or election.
  28. "Precinct" is synonymous with the term "voting precinct" and means a geographical area, established in accordance with this chapter, from which all electors vote at one polling place.
  29. "Primary" means any election held for the purpose of electing party officers or nominating candidates for public offices to be voted for at an election.
  30. "Public office" means every federal, state, county, and municipal office to which persons can be elected by a vote of the electors under the laws of this state or the respective municipal charters, except that the term shall not include the office of soil and water conservation district supervisor.
  31. "Question" means a brief statement of such constitutional amendment, charter amendment, or other proposition as shall be submitted to a popular vote at any election.
  32. "Residence" means domicile.

    (32.1) "Scanning ballot" means a printed paper ballot designed to be marked by an elector with a ballot marking device or electronic ballot marker or a blank sheet of paper designed to be used in a ballot marking device or electronic ballot marker, which is then inserted for casting into a ballot scanner.

  33. "Special election" means an election that arises from some exigency or special need outside the usual routine.
  34. "Special primary" means a primary that arises from some exigency or special need outside the usual routine.
  35. "Superintendent" means:
    1. Either the judge of the probate court of a county or the county board of elections, the county board of elections and registration, the joint city-county board of elections, or the joint city-county board of elections and registration, if a county has such;
    2. In the case of a municipal primary, the municipal executive committee of the political party holding the primary within a municipality or its agent or, if none, the county executive committee of the political party or its agent;
    3. In the case of a nonpartisan municipal primary, the person appointed by the proper municipal executive committee; and
    4. In the case of a municipal election, the person appointed by the governing authority pursuant to the authority granted in Code Section 21-2-70.
  36. "Swear" shall include affirm.
  37. "Violator" means any individual, partnership, committee, association, corporation, limited liability company, limited liability partnership, professional corporation, trust, enterprise, franchise, joint venture, political party, political body, candidate, campaign committee, political action committee or any other political committee or business entity, or any governing authority that violates any provision of this chapter.
  38. Reserved.
  39. "Voter" is synonymous with the term "elector."
  40. "Voting machine" is a mechanical device on which an elector may cast a vote and which tabulates those votes by its own devices and is also known as a "lever machine."
  41. "Write-in ballot" means the paper or other material on which a vote is cast for persons whose names do not appear on the official ballot or ballot labels.

(Code 1933, § 34-103, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 1; Ga. L. 1978, p. 1004, §§ 1, 2; Ga. L. 1979, p. 964, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1984, p. 696, § 1; Ga. L. 1988, p. 964, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1994, p. 279, § 1; Ga. L. 1997, p. 590, § 1; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 1, 2, 25, 26; Ga. L. 2001, Ex. Sess., p. 325, § 1; Ga. L. 2002, p. 598, §§ 1-1, 2-1; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p. 517, § 1; Ga. L. 2005, p. 253, § 1/HB 244; Ga. L. 2006, p. 888, § 1/HB 1435; Ga. L. 2010, p. 914, § 1/HB 540; Ga. L. 2016, p. 173, § 1/SB 199; Ga. L. 2019, p. 7, § 1/HB 316.)

The 2019 amendment, effective April 2, 2019, substituted the present provisions of paragraph (2) for the former provisions, which read: " 'Ballot labels' means the cards, paper, or other material placed on the front of a voting machine containing the names of offices and candidates and statements of questions to be voted on."; added paragraph (2.1); added the second sentence in paragraph (4.1); added paragraph (7.1); substituted "paper ballots that are read by ballot scanners" for "ballots read by optical scanning tabulators" near the end of paragraph (18); and added paragraphs (19.1) and (32.1).

Cross references.

- District supervisors; election procedure for elected supervisors, § 2-6-30.

Probate court's authority to perform duties relating to elections, § 15-9-30.

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, § 183-1-8-.01.

Definition of vote, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Returns of Primaries and Elections, § 183-1-15-.02.

Law reviews.

- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 36, former Code 1933, §§ 34-101 et seq., and 34A-101, and former Code Section 21-3-2 are included in the annotations for this Code section.

Cited in Stinson v. Manning, 221 Ga. 487, 145 S.E.2d 541 (1965); Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189 (1969); Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Ollila v. Graham, 126 Ga. App. 288, 190 S.E.2d 542 (1972); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); Smiley v. Davenport, 139 Ga. App. 753, 229 S.E.2d 489 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Grogan v. Paulding County Democratic Executive Comm., 246 Ga. 206, 269 S.E.2d 467 (1980); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985); Favorito v. Handel, 285 Ga. 795, 684 S.E.2d 257 (2009); Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010); City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 765 S.E.2d 33 (2014).

County Registrar

County registrar is not prohibited from entering a municipal election because the restriction on municipal registrars under former Code 1933, § 34A-103 does not govern county registrars. Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108 (1976) (decided under former Code 1933, § 34-101 et seq.)

Elector

An elector must be a living person. Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968).

Political Body

Citizens Party is a "political body" under O.C.G.A. § 21-2-2(19) (see now O.C.G.A. § 21-2-2(23)). Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Residence

Question of domicile is for jury.

- The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined by the court except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

Change of domicile necessary for change of residence.

- There must be either the tacit or the explicit intention to change one's domicile before there is a change of legal residence. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, the person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

Maintenance of alternate abode not necessarily change in domicile.

- One may, for purposes of convenience, maintain a residence at a place not intended as a permanent abode without affecting any change in legal domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

Requirements as to domicile.

- See Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930) (decided under former Code 1910, § 36).

Candidate improperly deemed ineligible based on residency.

- In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

Special Election

County school board referendum.

- "Special election" encompasses a county school board referendum. Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984).

OPINIONS OF THE ATTORNEY GENERAL

General Considerations

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-101 et seq., and former Code Section 21-3-2 are included in the annotations for this Code section.

Election District

Having two or more polling places within one election district (now precinct) is not authorized by the Georgia Election Code. 1968 Op. Att'y Gen. No. 68-63 (decided under former Code 1933, § 34-101 et seq.).

General Election

Office created too late for general election.

- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.

Numbered List of Voters

Persons who vote by absentee ballot must be included on a "numbered list of voters". 1971 Op. Att'y Gen. No. U71-127.

Polling Place

Voting from automobile not permitted.

- The Election Code does not contemplate voting from automobiles. An elector who is unable to go to the polls should vote by absentee ballot. 1965-66 Op. Att'y Gen. 66-182.

Establishment of polling places.

- The governing authority of a municipality is not required to establish a polling place in each district from which a candidate is elected to office, but must establish a polling place in each precinct in the municipality. 1985 Op. Att'y Gen. No. U85-14.

Poll Officers

Municipal official may be poll officer.

- No provision of the Georgia Election Code prohibits an elected official of a municipality from serving as a poll officer in a state or national election. 1976 Op. Att'y Gen. No. U76-13.

Residence

Business address does not fulfill residency requirement.

- A business address, in and of itself, does not fulfill residency requirements, and an otherwise qualified elector may vote in the election district containing the business address only when such district also contains the residence as defined by the Election Code. 1968 Op. Att'y Gen. No. 68-293.

Where a person running for office is required to be a resident of the district from which that person is running, the person's business address, in and of itself, would not be sufficient to fulfill the residency requirement. 1968 Op. Att'y Gen. No. 68-293.

Person who moves away from a county and makes that person's home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56.

Wife may register even though not domiciled within state.

- A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. 1975 Op. Att'y Gen. No. 75-77.

Separate Precincts

Each ward should be separate election precinct where councilmen elected by ward.

- If a municipality requires that each of its councilmen be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district (now precinct). 1969 Op. Att'y Gen. No. 69-399.

Special Election

An election to fill the unexpired term of an office appears to be a "special election" under O.C.G.A. § 21-2-2(28) (see paragraph (33)) in that it arises outside the usual routine. 1986 Op. Att'y Gen. No. 86-26.

Special election for new elective office.

- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.

Special election occurs when a superior court judge has died, and a successor is to be selected. 1970 Op. Att'y Gen. No. U70-144.

Date of the call of a special election is the date of its first publication in a newspaper of appropriate circulation. 1980 Op. Att'y Gen. No. 80-27.

County school board is empowered to authorize calling of a school bond referendum which the county election superintendent shall then call by publishing the appropriate notice. 1985 Op. Att'y Gen. No. 85-18.

Registration for special election.

- The Election Code does not provide for special registration, but rather for general registration from which a list is compiled to vote in special elections. Therefore, any person who has registered to vote by the close of the fifth day (excluding Sundays or holidays) after the call of a bond election is entitled to vote in that election. 1965-66 Op. Att'y Gen. No. 66-73.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 1, 8, 22, 25, 27, 97, 98, 191 et seq. 26 Am. Jur. 2d, Elections, §§ 218 et seq., 270, 283 et seq., 305, 329, 330, 331. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 1, 128.

9 Am. Jur. Pleading and Practice Forms, Elections, § 1.

C.J.S.

- 29 C.J.S., Elections, §§ 36, 38, 39, 136 et seq., 144, 149 et seq., 177, 193, 258, 260, 305 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq., 269, 403 et seq.

ALR.

- Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.

Validity of write-in vote where candidate's surname only is written in on ballot, 86 A.L.R.2d 1025.

Residence or domicil of student or teacher for purpose of voting, 98 A.L.R.2d 488; 44 A.L.R.3d 797.

21-2-3. Reserved.

Editor's notes.

- Ga. L. 2006, p. 275, § 2-3/HB 1320, redesignated former Code Section 21-2-3 as present Code Section 16-7-58. Ga. L. 2006, p. 275, § 4-1/HB 1320, reserved the designation of this Code section.

21-2-4. Preparation, printing, publicizing, and distributing of summary of general amendments to Constitution of Georgia; recording summary on audio tape or other media.

  1. The summary of general amendments to the Constitution of Georgia prepared by the Attorney General, the legislative counsel, and the Secretary of State pursuant to Article X, Section I, Paragraph II of the Constitution of Georgia shall be printed by the Secretary of State in sufficient quantities to make available a copy of such summary to any interested citizen requesting a copy. In preparing the summary provided by this provision of the Constitution of Georgia, the Attorney General, the legislative counsel, and the Secretary of State shall provide an explanation of each proposed general amendment to the Constitution of Georgia in language free of legalistic and technical terms, to the end that the summary may be read and understood by the majority of citizens of this state. The Secretary of State shall be authorized to include with such summary, as a part of the same document, a summary or explanation of any state-wide referendum questions to be voted on at the same general election and any other explanatory materials as may be deemed appropriate by the Secretary of State.
  2. The Secretary of State shall cause a supply of the summary to be printed as soon as practicable after the summary has been prepared. The quantity of such supply shall be at the discretion of the Secretary of State. Immediately after receiving a supply of the printed summary, the Secretary of State shall prepare a press release stating that a summary of proposed general amendments to the Constitution of Georgia is available for distribution to interested citizens and advising such citizens of the method or methods by which a copy of such summary may be obtained. The Secretary of State shall distribute this press release to print and broadcast media throughout the state and shall actively seek the cooperation of the media in publicizing the fact that a summary of proposed general amendments to the Constitution of Georgia is available to interested citizens and encouraging citizens to obtain a copy of the summary. The Secretary of State shall reissue, at his discretion, this press release from time to time up to the date of the general election at which the proposed general amendments to the Constitution of Georgia shall be submitted to the electorate for approval or rejection.
  3. The Secretary of State shall send a supply of the printed summary to the superintendent of elections of each county. The press release provided by subsection (b) of this Code section shall state that the summary is available at the office of each election superintendent. Each election superintendent shall distribute a copy of the summary, as made available by the Secretary of State in his discretion, to any interested citizen on request. The press release shall also state that the summary may be obtained by mail and shall advise citizens how a copy may be so obtained. The Secretary of State shall be authorized to use any additional methods for the distribution of the summary as he may deem necessary to achieve the most effective distribution of the summary to all interested citizens.
  4. The Secretary of State is authorized to provide for the preparation of a supply of audio tapes, compact discs, or other media or an Internet website which shall contain the summary of each proposed general amendment to the Constitution as provided in subsection (a) of this Code section, together with a listing of the candidates for each of the state representatives to the United States Congress and the candidates for every public office elected by the electors of the entire state. A sufficient number of the audio tapes, compact discs, or other media may be prepared as will permit the distribution of at least one tape, disc, or other media form to each of the public libraries within the state for the purpose of providing voting information and assistance to any interested citizen. The Secretary of State may cause a supply of the tapes, discs, or other media to be prepared and distributed as soon as practicable after the summary has been prepared and the names of the candidates for each of the public offices to be included are known to be candidates. If the Secretary of State provides such information through an Internet website, it shall not be necessary to provide such information by audio tape, compact disc, or other media.

(Ga. L. 1981, p. 660, § 1; Code 1981, §21-1-2; Ga. L. 1982, p. 3, § 21; Ga. L. 1983, p. 140, § 2; Ga. L. 1984, p. 1117, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1997, p. 400, § 1; Code 1981, §21-2-4, as redesignated by Ga. L. 2001, Ex. Sess., p. 335, § 4; Ga. L. 2005, p. 253, § 2/HB 244.)

Cross references.

- Manner of amending Constitution of Georgia, Ga. Const. 1983, Art. X, Sec. I.

Office of Legislative Counsel generally, § 28-4-3.

Duties of Secretary of State with regard to Acts and resolutions of General Assembly, § 45-13-22 et seq.

Powers and duties of Constitutional Amendments Publication Board regarding assignment of numbers to proposed constitutional amendments and proposed new Constitutions, § 50-12-101.

Editor's notes.

- The amendment to this Code section by Ga. L. 1988, p. 426, § 2, is not in effect, since it was to become effective only upon ratification of proposed amendments to Ga. Const. 1983, Art. VII, Sec. IV, Para. VII and Art. X, Sec. I, Para. II at the November 1988 general election (see Ga. L. 1988, p. 2116), which proposed constitutional amendments were defeated.

Ga. L. 2001, Ex. Sess., p. 335, § 4, effective October 1, 2001, redesignated former Code Section 21-2-4 as present Code Section 21-1-2 and redesignated former Code Section 21-1-2 as present Code Section 21-2-4.

21-2-4.1. Continuation in office, dismissal, or appointment of members of constitutional or statutory boards or bodies for which membership based on residency within congressional district.

Repealed by Ga. L. 2011, Ex. Sess., p. 208, § 6/HB 20EX, effective September 6, 2011.

Editor's notes.

- This Code section was based on Code 1933, § 34-1803, enacted by Ga. L. 1981, Ex. Sess., p. 131, § 1; Code 1981, § 21-2-4.1, enacted by Ga. L. 1981, Ex. Sess., p. 131, § 2; Ga. L. 1990, p. 1903, § 6; Ga. L. 1996, p. 229, § 1; Ga. L. 1998, p. 295, § 1.

Ga. L. 2011, Ex. Sess., p. 208, § 1/HB 20EX, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Congressional Reapportionment Act of 2011.'"

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

  1. 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.
  2. 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. 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.
  3. The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. 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.
  4. 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.
  5. 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. 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. 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. The review shall be conducted by the court without a jury and shall be confined to the record. 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. The court may affirm the decision or remand the case for further proceedings. 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.

      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.

(Code 1933, § 34-304, enacted by Ga. L. 1980, p. 312, § 1; Ga. L. 1983, p. 884, § 6-1; Ga. L. 1984, p. 636, § 1; Ga. L. 1985, p. 496, § 1; Ga. L. 1986, p. 32, § 1; Ga. L. 1987, p. 1360, § 1; Ga. L. 1989, p. 900, § 1; Ga. L. 1993, p. 617, § 1; Ga. L. 1997, p. 590, § 2; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 1.)

Cross references.

- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

Restriction on eligibility of commissioner of transportation for state or federal elective office, § 32-2-40.

Eligibility of commissioner of veterans service for state or federal elective office, § 38-4-6.

Eligibility and qualifications of persons for public office generally, T. 45, C. 2.

Qualification of candidates for office; time period during which bank, credit union, or other financial institution may certify error in returning check, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Nomination of Candidates, § 183-1-10-.01.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 21-3-3 are included in the annotations for this Code section.

Eligible elector.

- One who is not a resident of the city is not an eligible "elector" thereof. Radcliff v. Dingle, 255 Ga. 252, 336 S.E.2d 789 (1985) (decided under former § 21-3-3).

Candidate improperly deemed ineligible.

- In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

Candidate was resident of district.

- Although a candidate for membership in the commission from a Georgia Public Service Commission district owned property outside the district on which the candidate held a homestead exemption until a month before the Georgia Secretary of State filed a challenge under O.C.G.A. § 21-2-5, the candidate was a resident of the district for purposes of O.C.G.A. § 46-2-1(b). The candidate spent the most of the candidate's time in the district, was registered to vote there, paid taxes there, and registered automobiles there. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code Section 21-3-3 are included in the annotations for this Code section.

Registering to vote after qualifying for office.

- A candidate who registers to vote only after qualification for office and the closing of the qualification process is not legally qualified to run for office. 1992 Op. Att'y Gen. No. U92-14 (decided under former § 21-3-3).

RESEARCH REFERENCES

ALR.

- Constitutionality of candidate participation provisions for primary elections, 121 A.L.R.5th 1.

21-2-6. Qualifications of candidates for county and municipal office; determination of qualifications.

  1. Every candidate for county office who is certified by the county executive committee of a political party or who files a notice of candidacy, and every candidate for municipal office who is certified by a municipal 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.
  2. The superintendent upon his or her own motion may challenge the qualifications of any candidate referred to in subsection (a) of this Code section 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 any such candidate may challenge the qualifications of the candidate by filing a written complaint with the superintendent giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which the candidate is offering. Upon his or her own motion or upon a challenge being filed, the superintendent 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 setting a hearing on the matter and shall inform the candidate of the date, time, and place of the hearing.
  3. The superintendent shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the superintendent determines that the candidate is not qualified, the superintendent 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.
  4. In the event that a candidate pays his or her qualifying fee with a check that is subsequently returned for insufficient funds, the superintendent 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.
  5. The elector filing the challenge or the candidate challenged shall have the right to appeal the decision of the superintendent by filing a petition in the superior court of the county in which the candidate resides within ten days after the entry of the final decision by the superintendent. The filing of the petition shall not itself stay the decision of the superintendent; however, the reviewing court may order a stay upon appropriate terms for good cause shown. As soon as possible after service of the petition, the superintendent shall transmit the original or a certified copy of the entire record of the proceedings under review to the reviewing court. The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the superintendent as to the weight of the evidence on questions of fact. The court may affirm the decision or remand the case for further proceedings. 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 superintendent are:
    1. In violation of the Constitution or laws of this state;
    2. In excess of the statutory authority of the superintendent;
    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.

      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.

(Code 1933, § 34-406, enacted by Ga. L. 1980, p. 312, § 2; Ga. L. 1983, p. 884, § 6-3; Ga. L. 1986, p. 32, § 1; Ga. L. 1987, p. 1360, § 2; Ga. L. 1989, p. 900, § 2; Ga. L. 1993, p. 617, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 230, § 1.)

Cross references.

- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

County officers, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

Appointment of county school superintendents, § 20-2-101.

Eligibility and qualifications of persons for public office generally, T. 45, C. 2.

Qualification of candidates for office; time period during which bank, credit union, or other financial institution may certify error in returning check, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Nomination of Candidates, § 183-1-10-.01.

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Reviewing court to consider factors before superintendent.

- Superior court, by relying upon 10 U.S.C. § 973, exceeded its authority as a reviewing court, since that section is not part of the Hatch Act, U.S.C. § 7324 et seq., which was one of the grounds for the complaint, and was not relied upon when the case was before the superintendent of elections. Jolley v. Grantham, 206 Ga. App. 100, 424 S.E.2d 362 (1992), overruled on other grounds, Hogan v. State, 316 Ga. App. 708, 730 S.E.2d 178 (2012).

County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014).

Appeal of election dispute moot.

- Where a candidate did not protect the candidate's rights and resolve an election dispute prior to an election and delayed in filing an appeal by an elections superintendent in favor of an incumbent until after the election was over, the candidate's appeal was moot. Jordan v. Cook, 277 Ga. 155, 587 S.E.2d 52 (2003).

RESEARCH REFERENCES

ALR.

- Constitutionality of candidate participation provisions for primary elections, 121 A.L.R.5th 1.

21-2-7. Eligibility of subversive persons for nomination or election to public office.

No person who has been adjudged a "subversive person," as defined in Part 2 of Article 1 of Chapter 11 of Title 16, the "Sedition and Subversive Activities Act of 1953," shall be nominated or elected in accordance with this chapter.

(Code 1933, § 34-106, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

Ineligibility of subversive persons to hold office or position in government, § 16-11-12.

Eligibility and qualifications of persons for public office generally, T. 45, C. 2.

Loyalty oath for state officers and employees, § 45-3-11 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 250 et seq. 70 Am. Jur. 2d, Sedition, Subversive Activities, and Treason, § 2 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 234, 235.

ALR.

- Validity of legislation directed against political, social, or industrial propaganda deemed to be of a dangerous tendency, 73 A.L.R. 1494.

Political principles or affiliations as ground for refusal of government officials to file certificate of nomination or take other steps necessary to representation of party or candidate upon official ticket, 130 A.L.R. 1471.

21-2-8. Eligibility for party nomination, public office, or performance of certain official acts of persons convicted and sentenced for certain crimes; illegally holding any public funds; effect of disqualification of superintendent.

No person shall be eligible for party nomination for or election to public office, nor shall he or she perform any official acts or duties as a superintendent, registrar, deputy registrar, poll officer, or party officer, as set forth in this chapter, in connection with any election or primary held under this chapter, if under the laws of this state, any other state, or the United States he or she has been convicted and sentenced, in any court of competent jurisdiction, for fraudulent violation of primary or election laws, malfeasance in office, or felony involving moral turpitude, unless such person's civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude. Additionally, the person shall not be holding illegally any public funds. In the event of the disqualification of the superintendent as described in this Code section, the clerk of the superior court shall act in his or her stead. Notwithstanding the above, the governing authority of a municipality shall appoint an individual to serve as superintendent for municipal elections or municipal primaries in the event of the disqualification of the municipal superintendent, unless the municipality has contracted with a county government for the provision of election services, in which event the clerk of the superior court shall act in place of a disqualified superintendent.

(Code 1933, § 34-107, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1983, p. 930, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 1; Ga. L. 2005, p. 253, § 3/HB 244.)

Cross references.

- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

Eligibility and qualifications of persons for public office generally, T. 45, C. 2.

Vacating of state office upon conviction of officer for felony, § 45-5-2 and Ga. Const. 1983, Art. II, Sec. III.

Editor's notes.

- Ga. L. 1983, p. 930, § 1, not codified by the General Assembly, provided: "It is the intent of this Act to implement certain changes required by Article II, Section I, Paragraph III and Article II, Section II, Paragraph III of the Constitution of the State of Georgia."

JUDICIAL DECISIONS

Cited in Hutto v. Rowland, 226 Ga. 889, 178 S.E.2d 180 (1970); Ingram v. Lott, 238 Ga. 513, 233 S.E.2d 770 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Effect of indictment.

- Indictment alone would not disqualify person as candidate for public office. 1968 Op. Att'y Gen. No. 68-102.

Privacy Act of 1974 (Pub. L. 93-579) does not alter the powers conferred or obligations imposed by Ga. L. 1964, Ex. Sess., p. 26, § 1 (see now O.C.G.A. § 21-2-8). 1976 Op. Att'y Gen. No. 76-6.

Minimization of privacy invasions.

- The command of the Georgia Crime Information Center Act, Ga. L. 1973, p. 1301, to minimize invasions of privacy requires that disseminations of criminal history records to the State Election Board be limited to records of conviction of one of the classes of offenses enumerated in Ga. L. 1964, Ex. Sess., p. 26, § 1 (see now O.C.G.A. § 21-2-8). 1975 Op. Att'y Gen. No. 75-144.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 250 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 234, 235.

ALR.

- Violation of liquor law as infamous crime or offense involving moral turpitude, 40 A.L.R. 1048, 71 A.L.R. 217.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

21-2-9. Date of election for offices.

  1. The Governor, Lieutenant Governor, Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, Commissioner of Labor, members of Congress, district attorneys, members of the General Assembly, and county officers not elected pursuant to Code Section 21-2-139 shall be elected in the November election next preceding the expiration of the term of office.
  2. Justices of the Supreme Court, Judges of the Court of Appeals, judges of the superior courts, and county judicial officers, offices of local school boards, and nonpartisan offices elected pursuant to Code Section 21-2-139 shall be elected in the nonpartisan general election next preceding the expiration of the term of office.
  3. All general municipal elections to fill municipal offices shall be held on the Tuesday next following the first Monday in November in each odd-numbered year. Public notice of such elections shall be published by the governing authority of the municipality in a newspaper of general circulation in the municipality at least 30 days prior to the elections. In addition, the municipality shall immediately transmit a copy of such notice to the Secretary of State.
  4. Whenever a municipal general primary or election is held in conjunction with the general primary or November general election in even-numbered years, the time specified for the closing of the registration list, the time within which candidates must qualify for the municipal primary or election, and the time specified for the holding of any runoff necessary shall be the same as specified for general elections.

(Orig. Code 1863, §§ 1245, 1265, 1266, 1267, 1268, 1270, 1274; Code 1868, §§ 1326, 1346, 1347, 1348, 1349, 1351, 1355; Ga. L. 1869, p. 22, §§ 1, 2; Ga. L. 1872, p. 29, § 2; Ga. L. 1872, p. 80, § 8; Code 1873, §§ 1305, 1319, 1320, 1321, 1323, 1327; Code 1882, §§ 1305, 1319, 1320, 1321, 1323, 1327; Ga. L. 1894, p. 40, § 1; Civil Code 1895, §§ 83, 97, 98, 99, 101, 105; Ga. L. 1898, p. 42, § 1; Ga. L. 1898, p. 43, § 1; Civil Code 1910, §§ 97, 111, 112, 113, 115, 119; Ga. L. 1913, p. 135, § 1; Ga. L. 1914, p. 47, § 1; Code 1933, §§ 34-2302, 34-2401, 34-2602, 34-2603, 34-2701, 34-2705; Ga. L. 1957, p. 102, § 1; Ga. L. 1957, p. 117, § 1; Code 1933, § 34-802, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1978, p. 1004, § 15; Ga. L. 1983, p. 884, § 6-3; Ga. L. 1986, p. 855, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2005, p. 253, § 4/HB 244; Ga. L. 2008, p. 817, § 1/HB 1098; Ga. L. 2012, p. 995, § 1/SB 92.)

JUDICIAL DECISIONS

An election is absolutely void when not held at proper time and place by persons qualified to hold it. Smiley v. Gaskin, 115 Ga. App. 547, 154 S.E.2d 740 (1967).

Election of justices of the peace (now magistrates) and constables was a general state election. Rose v. State, 107 Ga. 697, 33 S.E. 439 (1899).

Quo warranto denied challenging appointment of judges.

- Trial court's denial of the challenger's petition for a writ of quo warranto was affirmed because the newly created positions on the Georgia Court of Appeals qualified as vacancies under Ga. Const. 1983, Art. VI, Sec. VII, Para. III; thus, the governor had the authority to appoint judges to the vacancies created by amended O.C.G.A. § 15-3-1(a). Clark v. Deal, 298 Ga. 893, 785 S.E.2d 524 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Reelection of Supreme Court Justice appointed to fill vacancy.

- When the Governor appoints to fill a vacancy on the Supreme Court, the appointee must stand for reelection in the nonpartisan judicial primary and also during the next general election in November, which is more than six months after his or her appointment. 1992 Op. Att'y Gen. No. U92-7.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 303.

C.J.S.

- 29 C.J.S., Elections, § 144 et seq.

21-2-10. Election of presidential electors.

At the November election to be held in the year 1964 and every fourth year thereafter, there shall be elected by the electors of this state persons to be known as electors of President and Vice President of the United States and referred to in this chapter as presidential electors, equal in number to the whole number of senators and representatives to which this state may be entitled in the Congress of the United States.

(Laws 1824, Cobb's 1851 Digest, p. 235; Code 1863, § 1251; Code 1868, § 1332; Code 1873, § 1311; Code 1882, § 1311; Civil Code 1895, § 89; Civil Code 1910, § 103; Code 1933, § 34-2501; Ga. L. 1958, p. 208, §§ 1, 3; Code 1933, § 34-1601, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1993, p. 118, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Election of presidential electors is a general election. Moore v. Smith, 140 Ga. 854, 79 S.E. 1116 (1913).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 6.

ALR.

- Presidential and vice-presidential electors, 153 A.L.R. 1066.

21-2-11. Performance of duties by presidential electors.

The presidential electors chosen pursuant to Code Section 21-2-10 shall assemble at the seat of government of this state at 12:00 Noon of the day which is, or may be, directed by the Congress of the United States and shall then and there perform the duties required of them by the Constitution and laws of the United States.

(Orig. Code 1863, § 1252; Code 1868, § 1333; Code 1873, § 1312; Ga. L. 1880-81, p. 67, § 1; Code 1882, § 1312; Ga. L. 1888, p. 33, § 1; Civil Code 1895, § 90; Civil Code 1910, § 104; Code 1933, § 34-2502; Code 1933, § 34-1602, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

Law reviews.

- For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

21-2-12. Procedure for filling presidential elector vacancies.

If any such presidential elector shall die, or for any cause fail to attend at the seat of government at the time appointed by law, the presidential electors present shall proceed to choose by voice vote a person of the same political party or body, if any, as such deceased or absent presidential elector, to fill the vacancy occasioned thereby; and immediately after such choice the name of the person so chosen shall be transmitted by the presiding officer of the college to the Governor, who shall immediately cause notice of his or her election in writing to be given to such person. The person so elected, and not the person in whose place he or she shall have been chosen, shall be a presidential elector and shall, with the other presidential electors, perform the duties required of them by the Constitution and laws of the United States.

(Laws 1824, Cobb's 1851 Digest, p. 240; Code 1863, § 1253; Code 1868, § 1334; Code 1873, § 1313; Code 1882, § 1313; Civil Code 1895, § 91; Civil Code 1910, § 105; Code 1933, § 34-2503; Code 1933, § 34-1603, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

21-2-13. Compensation of presidential electors; payment of expenses of electoral college.

Each presidential elector shall receive from the state treasury the sum of $50.00 for every day spent in traveling to, remaining at, and returning from the place of meeting and shall be entitled to mileage at the rate of 10› per mile to and from his or her home. The reasonable expenses of the electoral college shall likewise be paid by the state treasurer, in both cases upon warrants drawn by the presiding officer of the college.

(Orig. Code 1863, § 1257; Code 1868, § 1338; Code 1873, § 1317; Code 1882, § 1317; Ga. L. 1882-83, p. 54, § 1; Civil Code 1895, § 95; Civil Code 1910, § 109; Code 1933, § 34-2507; Code 1933, § 34-1604, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 1998, p. 295, § 1; Ga. L. 2010, p. 863, § 3/SB 296.)

21-2-14. Computation of time as to exercise of privilege or discharge of duty under chapter.

Unless otherwise stated in a specific Code section of this chapter, time periods under this chapter include Saturdays, Sundays, and legal holidays. When the last day for the exercise of any privilege or the discharge of any duty prescribed or required by this chapter shall fall on a Saturday, Sunday, or legal holiday, the next succeeding business day shall be the last day for the exercise of such privilege or the discharge of such duty.

(Code 1933, § 34-105, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 1; Ga. L. 1997, p. 590, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 52, § 2.)

Cross references.

- Computation of time generally, §§ 1-3-1,9-11-6.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code 1933, § 34-1011 are included in the annotations for this Code section.

Time extensions in civil actions not incorporated.

- The election statute was not intended to incorporate the time extensions permitted under former Code 1933, § 81A-106 (see now O.C.G.A. § 9-11-6). Johnson v. Fortson, 237 Ga. 367, 227 S.E.2d 392 (1976) (decided under former Code 1933, § 34-1011).

OPINIONS OF THE ATTORNEY GENERAL

Elections held on Saturday.

- This section extends the closing date for registration and qualification of candidates until the next succeeding business day if the last day falls on a Saturday, but that section does not affect elections which might be held on Saturday. 1969 Op. Att'y Gen. No. 69-455.

If required by city charter, a municipal election should be held on a legal holiday. 1975 Op. Att'y Gen. No. U75-86.

RESEARCH REFERENCES

ALR.

- Validity, construction, and effect of "Sunday Closing" or "Blue" Laws, 10 A.L.R.4th 246.

21-2-15. Applicability of chapter.

This chapter shall apply to any general or special election in this state to fill any federal, state, county, or municipal office, to any general or special primary to nominate candidates for any such office, and to any federal, state, county, or municipal election or primary for any other purpose whatsoever, unless otherwise provided.

(Code 1933, § 34-102, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Ground for contest applicable in municipal election.

- Although the Georgia Election Code was not applicable by its terms to municipal elections, in the absence of any statutory grounds for contest in the Georgia Municipal Election Code, the ground for contest in former Code 1933, § 34-1703 (see now O.C.G.A. § 21-2-522(c)) was a good ground of contest in a municipal election. Davidson v. Bryan, 242 Ga. 282, 248 S.E.2d 657 (1978).

Cited in Jones v. Fortson, 223 Ga. 7, 152 S.E.2d 847 (1967); Campbell v. Hunt, 115 Ga. App. 682, 155 S.E.2d 682 (1967); Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108 (1976); Dolvin v. Town of Siloam, 246 Ga. 131, 269 S.E.2d 23 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Applicability to city elections.

- The provisions of the Election Code relating to the "nomination of candidates" shall apply to city elections, except where the provisions of the charter differ from the code. 1967 Op. Att'y Gen. No. 67-239.

Hospital or school bond elections.

- Law, which made it a misdemeanor to sell intoxicating beverages on election days, applied to school or hospital bond elections. 1965-66 Op. Att'y Gen. No. 65-17.

Election Code provisions not limited by malt beverage regulations.

- Malt beverage regulations may not be modified so as to permit the sale of malt beverages after the hours of the election, or changed to limit the prohibition on election days only with respect to state-wide elections, such as a general election or a state-wide primary. 1965-66 Op. Att'y Gen. No. 66-13.

"Election day" construed.

- The term "election day", as used in the Constitution, has been construed by the Supreme Court of this state as encompassing a period of time from midnight preceding the opening of the polls until midnight succeeding the closing of the polls. 1965-66 Op. Att'y Gen. No. 66-13.

21-2-16. Construction of chapter.

The provisions of this chapter, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. Unless otherwise provided in this chapter, this chapter shall repeal any conflicting provision or provisions of any municipal act in conflict with this chapter. The repeal by this chapter of any Act of the General Assembly or any municipal corporation, or part thereof, shall not revive any Act, or part thereof, heretofore repealed or superseded. This chapter shall not affect any act done, liability or penalty incurred, right accrued or vested, or nomination made prior to the taking effect of this chapter; nor shall they affect any action or prosecution then pending or to be instituted, to enforce any right or penalty then accrued or to punish any offense theretofore committed.

(Code 1933, § 34-104, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Cited in Hutto v. Rowland, 226 Ga. 889, 178 S.E.2d 180 (1970).

21-2-17. Designation of candidate's chief deputy clerk in elections for clerk of state court of certain counties.

  1. This Code section shall apply only to counties with a population of 425,000 or more according to the United States decennial census of 1990 or any future such census.
  2. When a candidate for election to clerk of the state court of a county is required by law at any time before election to name the person whom such candidate will appoint as chief deputy if elected to office, the ballot for office shall include, below the name of the candidate, the name of each candidate's designated chief deputy, labeled as such.
  3. This Code section shall not be construed to require any action to fill a vacancy in the position of chief deputy of clerk of the state court of a county.

(Code 1981, §21-2-17, enacted by Ga. L. 1992, p. 2590, § 1; Ga. L. 1998, p. 295, § 1.)

ARTICLE 2 SUPERVISORY BOARDS AND OFFICERS

RESEARCH REFERENCES

ALR.

- Result of election as affected by lack of title or by defective title of election officers, 1 A.L.R. 1535.

PART 1 S TATE ELECTION BOARD, COUNTY BOARD OF ELECTIONS, AND COUNTY BOARD OF ELECTIONS AND REGISTRATION

Subpart 1 State Election Board
Administrative Rules and Regulations.

- Registration of electors, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, State Election Board, Chapter 183-1-6.

Ballots, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, State Election Board, Chapter 183-1-11.

Voting machines and voting recorders, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, State Election Board, Chapter 183-1-12.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-110 and former Code Section 21-3-7 are included in the annotations for Subpart 1.

Duty of board to be knowledgeable.

- The decision whether to exercise the right to intervene in municipal election contests requires that the State Election Board be aware of the nature of the proceedings and of problems encountered in elections and election contests in order that it may properly perform its duties. Lyde v. City of Brunswick, 241 Ga. 554, 246 S.E.2d 673 (1978) (decided under former Code 1933, § 34A-110).

Petition seeking mandamus requiring officials to administer oath to elected candidates.

- A petition seeking mandamus requiring city officials to administer the oath of office to persons who claim to have been elected as write-in candidates in a municipal election requires notice to the State Election Board, and the omission of the required notice constitutes a fatal defect. Lucken v. Falligant, 243 Ga. 816, 256 S.E.2d 788 (1979) (decided under former Code 1933, § 34A-110).

Cited in Collins v. Williams, 237 Ga. 576, 229 S.E.2d 388 (1976); Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981).

RESEARCH REFERENCES

ALR.

- Power to enjoin holding of an election, 33 A.L.R. 1376; 70 A.L.R. 733.

Power to enjoin canvassing votes and declaring result of election, 1 A.L.R.2d 588.

21-2-30. Creation; composition; terms of service; vacancies; quorum; seal and bylaws; meetings.

  1. There is created a state board to be known as the State Election Board, to be composed of the Secretary of State, an elector to be elected by a majority vote of the Senate of the General Assembly at its regular session held in each odd-numbered year, an elector to be elected by a majority vote of the House of Representatives of the General Assembly at its regular session held in each odd-numbered year, and a member of each political party to be nominated and appointed in the manner provided in this Code section. No person while a member of the General Assembly shall serve as a member of the board.
  2. A member elected by a house of the General Assembly shall take office on the day following the adjournment of the regular session in which elected and shall serve for a term of two years and until his or her successor is elected and qualified, unless sooner removed. An elected member of the board may be removed at any time by a majority vote of the house which elected him or her. In the event a vacancy should occur in the office of such a member of the board at a time when the General Assembly is not in session, then the President of the Senate shall thereupon appoint an elector to fill the vacancy if the prior incumbent of such office was elected by the Senate or appointed by the President of the Senate; and the Speaker of the House of Representatives shall thereupon appoint an elector to fill the vacancy if the prior incumbent of such office was elected by the House of Representatives or appointed by the Speaker of the House of Representatives. A member appointed to fill a vacancy may be removed at any time by a majority vote of the house whose presiding officer appointed him or her.
  3. Within 30 days after April 3, 1968, the state executive committee of each political party shall nominate a member of its party to serve as a member of the State Election Board and, thereupon, the Governor shall appoint such nominee as a member of the board to serve for a term of two years from the date of the appointment and until his or her successor is elected and qualified, unless sooner removed. Thereafter, such state executive committee shall select a nominee for such office on the board within 30 days after a vacancy occurs in such office and shall also select a nominee at least 30 days prior to the expiration of the term of each incumbent nominated by it; and each such nominee shall be immediately appointed by the Governor as a member of the board to serve for the unexpired term in the case of a vacancy, and for a term of two years in the case of an expired term. Each successor, other than one appointed to serve an unexpired term, shall serve for a term of two years; and the terms shall run consecutively from the date of the initial gubernatorial appointment. No person shall be eligible for nomination by such state executive committee unless he or she is an elector and a member in good standing of the political party of the committee. Such a member shall cease to serve on the board and his or her office shall be abolished if and when his or her political organization shall cease to be a "political party" as defined in Code Section 21-2-2.
  4. The Secretary of State shall be the chairperson of the board. Three members of the board shall constitute a quorum, and no vacancy on the board shall impair the right of the quorum to exercise all the powers and perform all the duties of the board. The board shall adopt a seal for its use and bylaws for its own government and procedure.
  5. Meetings shall be held whenever necessary for the performance of the duties of the board on call of the chairperson or whenever any two of its members so request. Minutes shall be kept of all meetings of the board and a record kept of the vote of each member on all questions coming before the board. The chairperson shall give to each member of the board prior notice of the time and place of each meeting of the board.
  6. If any member of the board, other than the Secretary of State, shall qualify as a candidate for any public office which is to be voted upon in any primary or election regulated by the board, that member's position on the board shall be immediately vacated and such vacancy shall be filled in the manner provided for filling other vacancies on the board.

(Ga. L. 1959, p. 59, § 1; Code 1933, § 34-201, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 862, § 1; Ga. L. 1969, p. 329, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2008, p. 781, § 1/HB 1112.)

JUDICIAL DECISIONS

Standing of Secretary of State to object to request to view election records under Open Records Act.

- The Georgia Secretary of State had standing to object to a request under the Open Records Act for election records held by a county. Under O.C.G.A. §§ 21-2-30,21-2-31,21-2-32,21-2-50 et seq., and45-13-20 et seq., the Secretary was charged with the supervision of all elections in Georgia and thus had the right to seek judicial intervention. Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007), cert. denied, No. S08C0596, 2008 Ga. LEXIS 291 (Ga. 2008).

Cited in Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 83, 87.

C.J.S.

- 29 C.J.S., Elections, § 108 et seq.

ALR.

- Constitutionality of statute requiring, or limiting, selection or appointment of public officers or agents from members of a political party or parties, 140 A.L.R. 471; 170 A.L.R. 198.

21-2-31. Duties.

It shall be the duty of the State Election Board:

  1. To promulgate rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials, as well as the legality and purity in all primaries and elections;
  2. To formulate, adopt, and promulgate such rules and regulations, consistent with law, as will be conducive to the fair, legal, and orderly conduct of primaries and elections; and, upon the adoption of each rule and regulation, the board shall promptly file certified copies thereof with the Secretary of State and each superintendent;
  3. To publish in print or electronically and furnish to primary and election officials, from time to time, a sufficient number of indexed copies of all primary and election laws and pertinent rules and regulations then in force;
  4. To publish in print or electronically and distribute such explanatory pamphlets regarding the interpretation and application of primary and election laws as in the opinion of the board should be distributed to the electorate;
  5. To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law;
  6. To make such recommendations to the General Assembly as it may deem advisable relative to the conduct and administration of primaries and elections;
  7. To promulgate rules and regulations to define uniform and nondiscriminatory standards concerning what constitutes a vote and what will be counted as a vote for each category of voting system used in this state;
  8. To employ such assistants as may be necessary;
  9. Subject to funds being specifically appropriated by the General Assembly, to formulate and conduct a voter education program concerning voting procedures for voting by absentee ballot and at the polls with particular emphasis on the proper types of identification required for voting; and
  10. To take such other action, consistent with law, as the board may determine to be conducive to the fair, legal, and orderly conduct of primaries and elections.

(Ga. L. 1958, p. 269, § 45; Ga. L. 1959, p. 57, § 1; Code 1933, § 34-202, enacted by Ga. L. 1968, p. 862, § 2; Ga. L. 1993, p. 118, § 1; Ga. L. 1993, p. 1670, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 230, § 2; Ga. L. 2003, p. 517, § 2; Ga. L. 2006, p. 3, § 1/SB 84; Ga. L. 2008, p. 781, § 2/HB 1112; Ga. L. 2010, p. 838, § 10/SB 388.)

Administrative Rules and Regulations.

- Registration of electors, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, State Election Board, Subject 183-1-6.

Returns of primaries and elections, Official Compilation of the Rules and Regulations of the State of Georgia, State Election Board, Subject 183-1-15.

Rules of the State Election Board, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Subject 183-1-1 through 183-2-16.

Rules for voter registration by private entities, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.02.

Tabulating center personnel, trained and certified, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Voting Machines - Vote Recorders, § 183-1-12-.03.

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 145 (2006). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Board required to be aware of contest proceedings.

- The decision whether to intervene in election contest requires that the State Election Board be aware of the nature of the election contest proceedings, and of problems encountered in elections and election contests, in order that it may properly perform its duties under O.C.G.A. § 21-2-31. Lyde v. City of Brunswick, 241 Ga. 554, 246 S.E.2d 673 (1978).

Standing of Secretary of State to object to request to view election records under Open Records Act.

- The Georgia Secretary of State had standing to object to a request under the Open Records Act for election records held by a county. Under O.C.G.A. §§ 21-2-30,21-2-31,21-2-32,21-2-50 et seq., and45-13-20 et seq., the Secretary was charged with the supervision of all elections in Georgia and thus had the right to seek judicial intervention. Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007), cert. denied, No. S08C0596, 2008 Ga. LEXIS 291 (Ga. 2008).

OPINIONS OF THE ATTORNEY GENERAL

No authority to remove names from primary ballots.

- Neither the State Election Board nor the Secretary of State has the authority to order candidates' names removed from primary ballots. 1974 Op. Att'y Gen. No. 74-96.

Board may receive criminal record information.

- Since the State Election Board is empowered to investigate and enforce by civil actions, it would be entitled to receive criminal history record information in connection with any such investigation or litigation. 1975 Op. Att'y Gen. No. 75-144.

Board's powers include powers of judge of probate court.

- Amendments to the Georgia Election Code after 1967 which confer additional responsibilities on the judge of probate court would confer those powers on the Board of Elections, absent a concurrent, contrary mandate by the General Assembly. 1975 Op. Att'y Gen. No. U75-88.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 7, 36, 93 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-32. Institution of and intervention in court actions; procedure; compensation of presiding judge; granting of relief; notice; appellate review.

  1. The State Election Board shall have the right to institute or to intervene as a party in any action in any court of this state or of the United States, seeking mandamus, injunction, or other relief, to compel compliance with any election or primary law of the state or with any valid rule or regulation of the board, or to restrain or otherwise prevent or prohibit any fraudulent or other illegal conduct in connection therewith, including the right to seek such relief for any anticipatory breach.
  2. Any petition seeking any of the relief authorized in subsection (a) of this Code section shall be filed in the superior court of the county of residence of the superintendent charged with the conduct of the election or primary in which it is alleged that there was or will be fraud or other illegal conduct or, in the case of municipal primaries and elections, in the county in which the city hall is located.
  3. Upon the filing of such petition, the clerk of superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which the county lies, or the district court administrator, who shall immediately notify the administrative judge, of the institution of proceedings under this article. If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge who is not a resident of the circuit in which the proceeding was instituted, to preside over the proceeding.
  4. If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed. In the event any temporary order is sought, the petition may be presented to the administrative judge prior to its filing for consideration of the application for such order. If the petition upon which temporary relief is sought prior to the filing will be filed in any county of the circuit of the administrative judge, then the petition may be presented to the administrative judge of an adjoining district prior to its filing for consideration of the application for such order.
  5. After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his or her actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.
  6. If, in the opinion of the judge presiding over such cause, adequate relief cannot otherwise be granted to assure compliance with said laws, rules, and regulations, the judge may enter such order concerning the conduct of such election or primary which he or she shall deem necessary to assure compliance, including the right to require such election or primary to be held under the supervision of the State Election Board.
  7. Upon any action being filed in any court of this state seeking relief affecting the calling, holding, conduct, determination, result, tabulation, or certification of any election or primary, except those instituted by the State Election Board, a copy of the proceeding shall be served upon such board by mailing a copy of same to the chairperson by certified or registered mail or statutory overnight delivery; and a certificate that such service has been made shall be filed by the plaintiff or the plaintiff's attorney.
  8. Any verdict, judgment, decree, order, ruling, or other judicial action in such cases shall be subject to review by the appellate court having jurisdiction thereof. It shall be the duty of the proper appellate court to consider application for stays or supersedeas in such cases without regard to whether any appeal has been filed or the record docketed in such cases.

(Code 1933, § 34-203, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1991, p. 608, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2000, p. 1589, § 4.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, made this Act applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Purpose for which notice is given to the State Election Board is to give the board an opportunity to intervene in an action brought under this section. Hill v. Bargeron, 240 Ga. 490, 241 S.E.2d 251 (1978).

The decision whether to intervene in municipal election contests requires that the State Election Board be aware of the nature of the proceedings, and for problems encountered in elections and election contests, in order that it may properly perform its duties under this section. Copies of the proceedings are also necessary to assist the board in promulgating rules and regulations, in publishing and distributing explanatory pamphlets interpreting the election laws, in conducting investigations where necessary, and in making recommendations to the General Assembly. Lyde v. City of Brunswick, 241 Ga. 554, 246 S.E.2d 673 (1978).

"Seeking relief affecting the calling, holding, conduct" not to be strictly construed.

- To accomplish the intended purposes of O.C.G.A. § 21-2-32, the words "seeking relief affecting the calling, holding, conduct," are not to be given a strict interpretation. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981).

"Action seeking relief" construed.

- An action seeking to enjoin the placing of a candidate's name upon the ballot is an action seeking relief affecting the conduct, determination, result, etc., of a primary or election. O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976).

A petition seeking mandamus requiring city officials to administer the oath of office to persons who claim to have been elected as write-in candidates in a municipal election is such a proceeding that requires notice to the State Election Board. Lucken v. Falligant, 243 Ga. 816, 256 S.E.2d 788 (1979).

Standing of Secretary of State to object to request to view election records under Open Records Act.

- The Georgia Secretary of State had standing to object to a request under the Open Records Act for election records held by a county. Under O.C.G.A. §§ 21-2-30,21-2-31,21-2-32,21-2-50 et seq., and45-13-20 et seq., the Secretary was charged with the supervision of all elections in Georgia and thus had the right to seek judicial intervention. Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007), cert. denied, No. S08C0596, 2008 Ga. LEXIS 291 (Ga. 2008).

Omission of required notice under subsection (d) (now subsection (g)) of this section constitutes a fatal defect. O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976); Lucken v. Falligant, 243 Ga. 816, 256 S.E.2d 788 (1979).

Failure to file certificate of perfected service constitutes a fatal defect.

- If no certificate that service had been perfected upon the State Election Board was filed as required by subsection (d) (now subsection (g)) of this section, it is not error for the court to dismiss a petition in an election contest. Moody v. Carter, 128 Ga. App. 27, 195 S.E.2d 204 (1973).

Notice to be given immediately following filing of action.

- The word "upon" in subsection (d) (now subsection (g)) of this section means "immediately following on" or "very soon after." Late or eleventh-hours service is not in conformity with the express statutory language. Hill v. Bargeron, 240 Ga. 490, 241 S.E.2d 251 (1978).

Failure to mail notice or file certificate of service.

- Where the record reflected service on the Secretary of State by the sheriff, the absence of the formalities required under O.C.G.A. § 21-2-32(d) (now subsection (g)) was not fatal. Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987).

"Court" does not include city council.

- Subsection (d) (now subsection (g)) of this section will not be expanded so as to include a city council within the definition of "court". Collins v. Williams, 237 Ga. 576, 229 S.E.2d 388 (1976).

Cited in Smith v. Nathan, 127 Ga. App. 610, 194 S.E.2d 490 (1972); Robinson v. Bassett, 128 Ga. App. 711, 197 S.E.2d 799 (1973); Price v. Cheek, 130 Ga. App. 506, 203 S.E.2d 751 (1973); Schloth v. Smith, 134 Ga. App. 529, 215 S.E.2d 292 (1975); Bargeron v. Hill, 143 Ga. App. 87, 237 S.E.2d 518 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Board may receive criminal record information.

- Since the State Election Board is empowered to investigate and enforce by civil actions, it would be entitled to receive criminal history record information in connection with any such investigation or litigation. 1975 Op. Att'y Gen. No. 75-144.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 8, 37, 90 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

ALR.

- Power to enjoin holding of an election, 33 A.L.R. 1376, 70 A.L.R. 733.

21-2-33. Hearings before board.

The State Election Board may examine under oath any person concerning any matter connected with or bearing on the proper discharge of its duties; and any member of the board may administer such oath. The board shall have full power to subpoena persons and papers and to compel the witnesses to answer under oath touching any questions which may properly come before the board and to take, through its agent, the depositions of witnesses. The board, in investigating the administration of primary and election laws within a county or any frauds or irregularities in primaries and elections held therein, shall conduct each hearing concerning same at a place within such county. No witness shall be compelled to attend if he or she should reside more than 100 miles from the place of hearing by the nearest practical route; provided, however, that the board may compel the taking of his or her testimony by deposition in the county of the residence of the witness. The sheriff of any county, or his or her deputy, or agent of the board shall serve all processes issued by the board; or the same may be served by registered or certified mail or statutory overnight delivery; and the production of an appropriate return receipt issued by the post office or commercial delivery firm shall constitute prima-facie evidence of such service. In case of the refusal of any person subpoenaed to attend or testify, such facts shall be reported forthwith by the board to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify. On failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as now allowed and paid witnesses in civil actions in the superior court.

(Code 1933, § 34-204, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 20, § 1.)

Cross references.

- Witness fees and mileage, § 24-13-25.

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, made this Act applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 8, 37, 90 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-33.1. Enforcement of chapter.

  1. The State Election Board is vested with the power to issue orders, after the completion of appropriate proceedings, directing compliance with this chapter or prohibiting the actual or threatened commission of any conduct constituting a violation, which order may include a provision requiring the violator:
    1. To cease and desist from committing further violations;
    2. To pay a civil penalty not to exceed $5,000.00 for each violation of this chapter or for each failure to comply with any provision of this chapter or of any rule or regulation promulgated under this chapter. Such penalty may be assessed against any violator as the State Election Board deems appropriate;
    3. To publicly reprimand any violator found to have committed a violation;
    4. To require that restitution be paid by any violator to a state, county, or city governing authority when it has suffered a monetary loss or damage as the result of a violation;
    5. To require violators to attend training as specified by the board; and
    6. To assess investigative costs incurred by the board against any violator found to have committed a violation.
  2. A civil penalty shall not be assessed against any violator except after notice and hearing as provided by Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." In addition to the State Election Board, any contested case may be held before any representative of such board who has been selected and appointed by such board for such purpose. The amount of any civil penalty finally assessed shall be recoverable by a civil action brought in the name of the State Election Board. All moneys recovered pursuant to this Code section shall be deposited in the state treasury.
  3. The Attorney General of this state shall, upon complaint by the State Election Board, bring an action in the superior court in the name of the State Election Board for a temporary restraining order or other injunctive relief or for civil penalties assessed against any violator of any provision of this chapter or any rule or regulation duly issued by the State Election Board.
  4. Any action brought by the Attorney General to enforce civil penalties assessed against any violator of this chapter or any rule or regulation duly issued by the State Election Board or any order issued by the State Election Board ordering compliance or to cease and desist from further violations shall be brought in the superior court of the county of the residence of the party against whom relief is sought. Service of process shall lie in any jurisdiction within the state. In such actions, the superior court inquiry will be limited to whether notice was given by the State Election Board to the violator in compliance with the Constitution and the rules of procedure of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." Upon satisfaction that notice was given and a hearing was held pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the superior court shall enforce the orders of the State Election Board and the civil penalties assessed under this chapter and the superior court shall not make independent inquiry as to whether the violations have occurred.
  5. In any action brought by the Attorney General to enforce any of the provisions of this chapter or of any rule or regulation issued by the State Election Board, the judgment, if in favor of the State Election Board, shall provide that the defendant pay to the State Election Board the costs, including reasonable attorneys' fees, incurred by the State Election Board in the prosecution of such action.

(Code 1981, §21-2-33.1, enacted by Ga. L. 1993, p. 1670, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 3, 27; Ga. L. 2005, p. 253, § 5/HB 244.)

21-2-34. Compensation and expenses of members.

Each member of the State Election Board shall receive a per diem in an amount equal to the per diem received by members of the General Assembly for each day or portion thereof spent in serving as members of the State Election Board. Each member of the State Election Board shall be paid his or her necessary traveling expenses while engaged in the business of the State Election Board.

(Ga. L. 1958, p. 269, § 45; Code 1933, § 34-205, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1985, p. 496, § 2; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Per diem for members of General Assembly, § 45-7-4.

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, §§ 112, 121.

Subpart 2 County Board of Elections and County Board of Elections and Registration

21-2-40. General Assembly authorized to create board of elections and board of elections and registration in any county.

  1. The General Assembly may by local Act create a board of elections in any county of this state and empower the board with the powers and duties of the election superintendent relating to the conduct of primaries and elections. Such board shall consist of not fewer than three members.
  2. The General Assembly may by local Act create a board of elections and registration in any county of this state and empower the board with the powers and duties of the election superintendent relating to the conduct of primaries and elections and with the powers and duties of the board of registrars relating to the registration of voters and absentee-balloting procedures. Such board shall consist of not fewer than three members.

(Code 1981, §21-2-40, enacted by Ga. L. 1982, p. 1292, § 2; Ga. L. 1983, p. 140, § 1; Ga. L. 1990, p. 243, § 8; Ga. L. 1998, p. 295, § 1; Ga. L. 2008, p. 261, § 1/SB 456; Ga. L. 2012, p. 995, § 2/SB 92.)

Law reviews.

- For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

JUDICIAL DECISIONS

County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and the challenge had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Precedence of local law in selection of board members.

- Local act creating a county board of elections and registration does not conflict with O.C.G.A. § 21-2-211 and it is appropriate to determine by local act the method of selecting the members of the board of elections and registration. 1986 Op. Att'y Gen. No. U86-38.

Nonpartisanship not required.

- No federal law or regulation requires a board of elections or board of registrars to be nonpartisan or to provide for equal representation of political parties. 1986 Op. Att'y Gen. No. U86-38.

Membership of political party officers.

- O.C.G.A. § 21-2-76 does not prohibit persons who hold office in political parties from serving as members of county boards of elections or boards of elections and registration. 1996 Op. Att'y Gen. No. 96-18.

Petitions in Murray County under the home rule provisions of the constitution should be filed with the judge of the probate court, rather than with the board of elections. 1988 Op. Att'y Gen. No. U88-15.

Subpart 3 Municipal Elections Conducted by Counties

21-2-45. Authorization to create joint county-municipal boards of elections and boards of elections and registration; authorization for county to conduct elections.

  1. The General Assembly may by local Act create a joint county-municipal board of elections in any county of this state for that county and any municipality located wholly or partially within that county and empower the board with the powers and duties of the election superintendent of that county and municipality with regard to the conduct of primaries and elections. Such board shall consist of not fewer than three members.
  2. The General Assembly may by local Act create a joint county-municipal board of elections and registration in any county of this state for that county and any municipality located wholly or partially within that county and empower the board with the powers and duties of the election superintendent of that county and municipality with regard to the conduct of primaries and elections and empower the board with the powers and duties of the registrars and board of registrars of that municipality and county with regard to the registration of voters and absentee-balloting procedures. Such board shall consist of not fewer than three members.
  3. The governing authority of any municipality may authorize any county within which that municipality wholly or partially lies to conduct any or all elections held pursuant to this chapter. In the event a municipality shall by ordinance authorize such county to conduct elections, such municipality may request such county to perform any or all of the functions:
    1. That the county shall perform all duties as superintendent of elections as specified under this chapter;
    2. That the county shall perform all duties as superintendent of elections as specified under this chapter, with the exception of the qualification of candidates; or
    3. That the county shall lease or loan any or all of its election equipment to the municipality for the purpose of conducting municipal elections without any responsibility on the part of the county for the actual conduct of the municipal election.

      With reference to any election, such municipality shall pay such county all costs incurred in performing those functions which the municipality has requested the county to perform; and, unless otherwise authorized, such county shall only perform those functions specifically enumerated in the contract. Such county shall have authority to conduct elections in any and all counties in which any part of such municipality may lie.

(Code 1981, §21-2-45, enacted by Ga. L. 1984, p. 680, § 1; Ga. L. 1986, p. 772, § 1; Ga. L. 1987, p. 1360, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2012, p. 995, § 3/SB 92.)

21-2-45.1. Special elections on bonded debt; publication; date; discount.

  1. The governing authority of a county, municipality, or political subdivision desiring to incur bonded debt in accordance with the provisions of the Constitution of Georgia shall call a special election to be held on a certain day for the purpose of submitting to the electorate the question of whether such bonded debt shall be incurred. The governing authority shall publish notice of such election once a week for a period of four weeks immediately preceding the day of the election in a newspaper which publishes the sheriff's advertisements for the county containing all or the largest part of the area of the county, municipality, or political subdivision involved. Such notice shall specify (1) the date of the election and the question to be submitted to the electorate, and (2) the principal amount of bonds to be issued, the purpose for which such bonds are to be issued, the interest rate or rates such bonds are to bear, and the amount of principal to be paid in each year during the life of such bonds; provided, however, that the governing authority, in lieu of specifying the rate or rates of interest which such bonds are to bear, may specify in the notice that such bonds when issued will bear interest at a rate not exceeding a maximum per annum rate of interest as stated in the notice or that, in the event such bonds are to bear different rates of interest for different maturity dates, none of such rates will exceed the maximum rates stated in the notice.
  2. The date of a municipal bond election shall be specified by the governing authority of the municipality. Such date shall not be less than 30 days after call of such bond election. The municipality shall immediately transmit a copy of such notice to the Secretary of State.
  3. Nothing contained in this Code section shall prohibit the issuer from selling such bonds at a discount, even if in so doing the effective interest cost resulting therefrom would exceed the maximum per annum interest rate specified in the notice of the election.

(Code 1981, §21-2-45.1, enacted by Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2008, p. 817, § 2/HB 1098.)

Cross references.

- Additional provisions regarding bonded debt, § 36-82-1.

Law reviews.

- For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006).

JUDICIAL DECISIONS

Sufficient notice.

- Election notice was sufficient under O.C.G.A. §§ 21-2-45.1(a) and36-82-1(b) because even if the clerical error could have been considered an "irregularity" in the election process, it would not, as a matter of law, have warranted setting aside the election pursuant to O.C.G.A. § 21-2-522. DeLeGal v. Burch, 273 Ga. App. 825, 616 S.E.2d 485 (2005).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, §§ 135, 139, 143. 64A C.J.S., Municipal Corporations, § 2156.

ALR.

- Statement regarding cost of proposed public improvement in ballot for special election in that regard, 117 A.L.R. 892.

Statutory provision as to manner and time of notice of special election as mandatory or directory, 119 A.L.R. 661.

Validity of submission of proposition to voters at bond election as effected by inclusion of several structures or units, 4 A.L.R.2d 617.

PART 2 S ECRETARY OF STATE

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001).

21-2-50. Powers and duties; prohibition against serving in fiduciary capacity.

  1. The Secretary of State shall exercise all the powers granted to the Secretary of State by this chapter and shall perform all the duties imposed by this chapter, which shall include the following:
    1. To determine the forms of nomination petitions, ballots, and other forms the Secretary of State is required to determine under this chapter;
    2. To receive registration statements from political parties and bodies and to determine their sufficiency prior to filing, in accordance with this chapter, and to settle any disputes concerning such statements;
    3. To receive and determine the sufficiency of nomination petitions of candidates filing notice of their candidacy with the Secretary of State in accordance with this chapter;
    4. To certify to the proper superintendent official lists of all the political party candidates who have been certified to the Secretary of State as qualified candidates for the succeeding primary and to certify to the proper superintendent official lists of all the candidates who have filed their notices of candidacy with the Secretary of State, both such certifications to be in substantially the form of the ballots to be used in the primary or election. The Secretary of State shall add to such form the language to be used in submitting any proposed constitutional amendment or other question to be voted upon at such election;
    5. To furnish to the proper superintendent all blank forms, including tally and return sheets, numbered lists of voters, cards of instructions, notices of penalties, instructions for marking ballots, tally sheets, precinct returns, recap sheets, consolidated returns, oaths of managers and clerks, oaths of assisted electors, voters certificates and binders, applications for absentee ballots, envelopes and instruction sheets for absentee ballots, and such other supplies as the Secretary of State shall deem necessary and advisable from time to time, for use in all elections and primaries. Such forms shall have printed thereon appropriate instructions for their use;
    6. To receive from the superintendent the returns of primaries and elections and to canvass and compute the votes cast for candidates and upon questions, as required by this chapter;
    7. To furnish upon request a certified copy of any document in the Secretary of State's custody by virtue of this chapter and to fix and charge a fee to cover the cost of furnishing same;
    8. To perform such other duties as may be prescribed by law;
    9. To determine and approve the form of ballots for use in special elections;
    10. To prepare and provide a notice to all candidates for federal or state office advising such candidates of such information, to include requirements of this chapter, as may, in the discretion of the Secretary of State, be conducive to the fair, legal, and orderly conduct of primaries and elections. A copy of such notice shall be provided to each superintendent for further distribution to candidates for county and militia district offices;
    11. To conduct training sessions at such places as the Secretary of State deems appropriate in each year, for the training of registrars and superintendents of elections;
    12. To prepare and publish, in the manner provided in this chapter, all notices and advertisements in connection with the conduct of elections which may be required by law;
    13. To prepare and furnish information for citizens on voter registration and voting;
    14. To maintain the official list of registered voters for this state and the list of inactive voters required by this chapter; and
    15. To develop, program, build, and review ballots for use by counties and municipalities on voting systems in use in the state.
  2. As the state's chief election official, the Secretary of State shall not serve in any fiduciary capacity for the campaign of any candidate whose election will be certified by the Secretary of State. Nothing in this subsection shall prohibit the Secretary of State from organizing and operating his or her own campaign for election to public office.

(Code 1933, § 34-301, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 3; Ga. L. 1970, p. 347, § 2; Ga. L. 1977, p. 1053, § 1; Ga. L. 1979, p. 955, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1986, p. 382, § 1; Ga. L. 1994, p. 1443, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 2; Ga. L. 2003, p. 517, § 3; Ga. L. 2005, p. 253, § 6/HB 244; Ga. L. 2019, p. 7, § 2/HB 316.)

The 2019 amendment, effective April 2, 2019, deleted "direct recording electronic (DRE)" preceding "voting systems" in paragraph (a)(15).

Cross references.

- Making of election returns to Secretary of State, Ga. Const. 1983, Art. II, Sec. II, Para. I.

Editor's notes.

- Ga. L. 1994, p. 1443, § 28, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval [April 15, 1994] for the purpose of authorizing the Secretary of State to design and distribute such forms and materials and to develop, procure, and install such computer hardware and software as are required under the provisions of this Act and to exercise such administrative authority as such officer deems necessary and proper for the implementation of this Act. For all other purposes, this Act shall become effective January 1, 1995."

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

Standing of Secretary of State to object to request to view election records under Open Records Act.

- The Georgia Secretary of State had standing to object to a request under the Open Records Act for election records held by a county. Under O.C.G.A. §§ 21-2-30,21-2-31,21-2-32,21-2-50 et seq., and45-13-20 et seq., the Secretary was charged with the supervision of all elections in Georgia and thus had the right to seek judicial intervention. Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007), cert. denied, No. S08C0596, 2008 Ga. LEXIS 291 (Ga. 2008).

Secretary of State's office complied with its statutory duty under O.C.G.A. § 21-2-50 when it provided a potential candidate with instructions on the nomination petition process and all of the relevant Official Code sections and State Election Board Rules. Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

No obligation to inform candidate of published case law.

- The Secretary of State's office was not obligated to inform a potential political candidate of published case law interpreting the Code sections pertaining to the nomination process, especially when such case law is easily discoverable through reasonable research. Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

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

Removal of names from primary ballots not authorized.

- Neither the State Election Board nor the Secretary of State has the authority to order candidates' names removed from primary ballots. 1974 Op. Att'y Gen. No. 74-96.

Certification of minor party and independent candidates.

- The Secretary of State is not required to certify as candidates for national and state offices at a regular election, the names of persons as nominees of a party that did not cast five percent of the votes in the last general election, or as independent candidates, unless the candidate shall file a petition signed by no less than five percent of the registered voters in the territory. 1945-47 Op. Att'y Gen. p. 238.

Names submitted following filing deadline.

- The Secretary of State may not direct that the name of a party nominee submitted to the Secretary of State after the filing deadline be placed on the general election ballot. 1945-47 Op. Att'y Gen. p. 246; 1945-47 Op. Att'y Gen. p. 248 (decided under former Code 1933, § 34-1904).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 90 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 65.

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 148, 241 et seq., 261 et seq.

21-2-50.1. Postponement and extension of qualifying periods for elections for public office during state of emergency; limitation.

In the event the Governor declares that a state of emergency or disaster exists pursuant to Code Section 38-3-51 or a federal agency declares that a state of emergency or disaster exists, the Secretary of State is authorized to postpone or extend the qualifying periods provided in this chapter for the qualification of candidates seeking municipal, county, or state-wide office and to postpone the date of any primary, special primary, election, or special election in the affected area. The Secretary of State shall exercise the powers granted by this Code section carefully, and any such postponement or extension shall not exceed 45 days.

(Code 1981, §21-2-50.1, enacted by Ga. L. 2001, p. 230, § 3; Ga. L. 2002, p. 574, § 1.)

Cross references.

- Emergency powers of Governor generally, §§ 38-3-22,38-3-51, and45-12-29.

Law reviews.

- For note on the 2001 enactment of this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d., Elections, § 303 et seq.

C.J.S.

- 29 C.J.S., Elections, § 144 et seq.

21-2-50.2. Obligations of the state under the federal Help America Vote Act of 2002.

  1. The Secretary of State, as the chief election official designated under the federal Help America Vote Act of 2002, shall be responsible for coordinating the obligations of the state under the federal Help America Vote Act of 2002.
  2. As the chief election official, the Secretary of State is authorized to promulgate rules and regulations to establish administrative complaint procedures as required under Section 402 of Title IV of the federal Help America Vote Act of 2002, which prescribes a process to remedy only those grievances filed under Title III of such federal act.
  3. Election related complaints filed with the Secretary of State alleging violations of Title III of the federal Help America Vote Act of 2002 shall not be subject to hearing procedures of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," but shall be resolved pursuant to rules and regulations promulgated under subsection (b) of this Code section whereby the Secretary of State shall have the authority to issue a final order for complaints filed under the federal Help America Vote Act of 2002.

(Code 1981, §21-2-50.2, enacted by Ga. L. 2003, p. 517, § 4.)

U.S. Code.

- The Help America Vote Act of 2002, referred to in this Code section, is codified at 42 U.S.C. § 15301 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d., Elections, § 307.

C.J.S.

- 29 C.J.S., Elections, § 261.

21-2-51. Opening of election records to members of public.

Except when otherwise provided by law, the primary and election records of the Secretary of State, including registration statements, nomination petitions, affidavits, certificates, tally papers, returns, accounts, contracts, reports, and other documents in his or her custody shall be open to public inspection and may be inspected and copied by any elector of the state during usual business hours at any time when they are not necessarily being used by the Secretary of State or his or her employees having duties to perform in reference thereto; provided, however, that such public inspection thereof shall only be in the presence of the Secretary of State or his or her employee and shall be subject to proper regulation for the safekeeping of such documents and subject to the further provisions of this chapter.

(Code 1933, § 34-302, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Penalty for willful refusal by Secretary of State to permit public inspection of election records, § 21-2-586.

Opening of public records for inspection by public generally, § 50-18-70 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Ga. L. 1949, p. 1204, § 37, are included in the annotations for this Code section.

Candidate's right to inspect lists of absentee voters.

- A candidate for political office, or any other citizen, has the legal right to inspect the books and records relating to the names and addresses of persons requesting absentee ballots. 1952-53 Op. Att'y Gen. p. 82 (decided under Ga. L. 1949, p. 1204, § 37).

List must be legible without resort to use of other devices.

- The certified list of electors required to be filed with the Secretary of State must be independently legible and a record of the list which may not be read except by resort to use of other devices, such as a microfiche of a list of electors, does not comply. 1976 Op. Att'y Gen. No. 76-24.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 90 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 65.

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 148, 241 et seq., 261 et seq.

21-2-52. Preservation of primary and election records.

All primary and election documents in the office of the Secretary of State shall be preserved therein for a period of at least 24 months; and then the same may be destroyed unless otherwise provided by law.

(Code 1933, § 34-303, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 3; Ga. L. 1978, p. 1004, § 3; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Maintenance and disposition of public records generally, § 50-18-90 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 90 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 65.

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 148, 241 et seq., 261, 263, 264. 76 C.J.S., Records, § 51.

PART 3 S UPERINTENDENTS

21-2-70. Powers and duties.

Each superintendent within his or her county or municipality shall exercise all the powers granted to him or her by this chapter and shall perform all the duties imposed upon him or her by this chapter, which shall include the following:

  1. To receive and act upon all petitions presented by electors, the board of registrars, or the county executive committee of a political party for the division, redivision, alteration, change, or consolidation of precincts;
  2. To receive and determine the sufficiency of nomination petitions of candidates filing notice of their candidacy with him or her in accordance with this chapter;
  3. To prepare and publish, in the manner provided by this chapter, all notices and advertisements, in connection with the conduct of elections, which may be required by law, and to transmit immediately to the Secretary of State a copy of any publication in which a call for a special primary, election, or runoff is issued;
  4. To select and equip polling places for use in primaries and elections in accordance with this chapter;
  5. To purchase, except voting machines, preserve, store, and maintain election equipment of all kinds, including voting booths and ballot boxes and to procure ballots and all other supplies for primaries and elections;
  6. To appoint poll officers and other officers to serve in primaries and elections in accordance with this chapter;
  7. To make and issue such rules, regulations, and instructions, consistent with law, including the rules and regulations promulgated by the State Election Board, as he or she may deem necessary for the guidance of poll officers, custodians, and electors in primaries and elections;
  8. To instruct poll officers and others in their duties, calling them together in meetings whenever deemed advisable, and to inspect systematically and thoroughly the conduct of primaries and elections in the several precincts of his or her county to the end that primaries and elections may be honestly, efficiently, and uniformly conducted;
  9. To receive from poll officers the returns of all primaries and elections, to canvass and compute the same, and to certify the results thereof to such authorities as may be prescribed by law;
  10. To announce publicly, by posting in his or her office, the results of all primaries and elections held in his or her county or municipality;
  11. In any general election at which a proposal to amend the Constitution or to provide for a new Constitution is submitted to the electors for ratification, the election superintendent shall provide copies of the summary of such proposal prepared pursuant to Article X, Section I, Paragraph II of the Constitution as provided in this paragraph. A reasonable number of copies of such summary shall be conspicuously available in each polling place;
  12. To prepare annually a budget estimate of his or her expenses under this chapter, in which shall be set forth an itemized list of expenditures for the preceding two years and an itemized estimate of the amount of money necessary to be appropriated for the ensuing year and to submit the same at the time and in the manner and form other budget estimates of his or her county or municipality are now or may hereafter be required to be filed;
  13. To conduct all elections in such manner as to guarantee the secrecy of the ballot and to perform such other duties as may be prescribed by law;
  14. To become certified by satisfactorily completing a certification program as set forth in Code Section 21-2-101; and
    1. In the case of a judge of the probate court serving as the election superintendent, such person shall take an oath in the following form upon assuming the duties of election superintendent which shall apply to all primaries and elections conducted by such person throughout such person's tenure as election superintendent:

      I, ____________________________, do swear (or affirm) that I will as superintendent duly attend all ensuing primaries and elections during the continuance thereof, that I will to the best of my ability prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of such primaries and elections, and that I will at all times truly, impartially, and faithfully perform my duties in accordance with Georgia laws to the best of my judgment and ability.

    2. In the case of a board of elections, each member of the board shall take an oath in the following form upon becoming a member of the board which shall apply to all primaries and elections conducted by the board throughout such person's tenure on the board:

      I, ____________________________, do swear (or affirm) that I will as a member of the board of elections duly attend all ensuing primaries and elections during the continuance thereof, that I will to the best of my ability prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of such primaries and elections, and that I will at all times truly, impartially, and faithfully perform my duties in accordance with Georgia laws to the best of my judgment and ability.

    3. In the case of an election supervisor or designee for a board of elections or board of elections and registration, the election supervisor or designee shall take an oath in the following form upon being appointed as an election supervisor or designee of the board which shall apply to all primaries and elections conducted by the board throughout such person's tenure:

      I, ______________________________, do swear (or affirm) that I will duly attend all ensuing primaries and elections during the continuance thereof, that I will to the best of my ability prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of such primaries and elections, and that I will at all times truly, impartially, and faithfully perform my duties in accordance with Georgia laws to the best of my judgment and ability.

    4. Each judge of the probate court serving as an election superintendent, each member of a board of elections or board of elections and registration, and each election supervisor or designee for a board of elections or board of elections and registration serving on July 1, 2011, shall take the appropriate oath as set forth in this Code section which shall apply to all primaries and elections conducted throughout such person's tenure in that position.

(Code 1933, § 34-401, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 4; Ga. L. 1981, p. 1718, § 1; Ga. L. 1982, p. 1512, § 5; Ga. L. 1997, p. 590, § 4; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2003, p. 517, § 5; Ga. L. 2008, p. 781, § 3/HB 1112; Ga. L. 2008, p. 817, § 3/HB 1098; Ga. L. 2011, p. 683, § 1/SB 82.)

Administrative Rules and Regulations.

- Ballot secrecy, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.01.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 21-3-8 are included in the annotations for this Code section.

Cited in Bedingfield v. Adams, 221 Ga. 69, 142 S.E.2d 915 (1965); United States v. Garner, 349 F. Supp. 1054 (N.D. Ga. 1972); Lewis v. O'Day, 284 Ga. 423, 667 S.E.2d 594 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Performance of duties mandatory.

- The use of the word "shall" in this section with respect to the duties imposed upon a probate judge, as superintendent of elections, indicates the imposition by the General Assembly upon the probate judge of a mandatory duty to perform certain enumerated functions. 1978 Op. Att'y Gen. No. U78-44.

Authorized rule.

- A probate judge, acting as the superintendent of elections, has authority, pursuant to O.C.G.A. § 21-2-70(7), to adopt a rule for guidance of poll officers, custodians, and electors which rule would advise that any person, including candidates and candidates' campaign workers, is prohibited from remaining within 250 feet of a polling place for purpose of checking electors list. 1982 Op. Att'y Gen. No. 82-41.

Power to call special primary.

- While the 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.

Superintendent calls and conducts school bond referendum.

- The county school board is empowered to authorize the calling of a school bond referendum which the county election superintendent shall then call by publishing the appropriate notice. The county superintendent of elections is also the proper person to conduct a school bond referendum. 1985 Op. Att'y Gen. No. 85-18.

Election superintendent is responsible for certifying the returns of elections. 1985 Op. Att'y Gen. No. 85-18.

Costs in examining nomination petition not assessable.

- The ordinary (now superintendent) is not authorized to assess the costs incurred in examining the nomination petition against the candidate submitting the petition. If no appropriations are made to cover such expenses, the ordinary may be compensated for services pursuant to the method prescribed in former Code 1933, § 24-110 (see now O.C.G.A. § 15-1-12). 1968 Op. Att'y Gen. No. 68-233.

No authority to distribute sample ballots.

- The ordinary (now superintendent) does not have the authority needed to distribute sample ballots prior to the next general election; even if such authority were contained in the Election Code, it is extremely doubtful whether public funds could be used. 1968 Op. Att'y Gen. No. 68-4.

Mandamus lies to compel annual financial statement.

- The duty of the probate judge, as superintendent of elections, set forth in paragraph (11) (now paragraph (12)) of this section to make annual financial statements is clear, and as there appears to be no other legal remedy by which to compel the furnishing of such information by the probate judge to the county governing authority, an action for mandamus by the county governing authority may lie to require performance by the probate judge of duties. 1978 Op. Att'y Gen. No. U78-44.

Petitions in Murray County under the home rule provisions of the constitution should be filed with the judge of the probate court, rather than with the board of elections. 1988 Op. Att'y Gen. No. U88-15.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 83, 90, 91. 26 Am. Jur. 2d, Elections, § 271 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-70.1. Municipal superintendents; eligibility.

  1. The municipal superintendent shall conduct, in accordance with this chapter, all municipal elections held within his or her municipality.
  2. The municipal superintendent shall be a person or committee selected by the governing authority of the municipality in a public meeting, and such selection shall be recorded in the minutes of such meeting. The municipal superintendent shall receive compensation fixed and paid by the governing authority of the municipality from municipal funds. The appointment shall be made in a public meeting, and the appointment shall be recorded in the minutes of said meeting. In the event that a municipality fails to make an appointment, the city clerk shall serve as the municipal superintendent. A parent, spouse, child, brother, sister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of a candidate shall not be eligible to serve as a municipal superintendent in any primary or election in which such candidate's name appears on the ballot.

(Code 1981, §21-2-70.1, enacted by Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 230, § 4; Ga. L. 2001, p. 240, § 3; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p. 517, § 6; Ga. L. 2008, p. 781, § 4/HB 1112.)

Law reviews.

- For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Cited in United States v. Garner, 349 F. Supp. 1054 (N.D. Ga. 1972).

RESEARCH REFERENCES

C.J.S.

- 62 C.J.S., Municipal Corporations, §§ 474, 475.

21-2-71. Payment by county or municipality of superintendent's expenses.

The governing authority of each county or municipality shall appropriate annually and from time to time, to the superintendent of such county or municipality, the funds that it shall deem necessary for the conduct of primaries and elections in such county or municipality and for the performance of his or her other duties under this chapter, including:

  1. Compensation of the poll officers, custodians, and other assistants and employees provided for in this chapter;
  2. Expenditures and contracts for expenditures by the superintendent for polling places;
  3. Purchase or printing, under contracts made by the superintendent, of all ballots and other election supplies required by this chapter, or which the superintendent shall consider necessary to carry out the provisions of this chapter;
  4. Maintenance of all voting equipment required by this chapter, or which the superintendent shall consider necessary to carry out this chapter; and
  5. All other expenses arising out of the performance of his or her duties under this chapter.

(Code 1933, § 34-402, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 5; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 7.)

OPINIONS OF THE ATTORNEY GENERAL

Expenses of school bond election must be borne by the county board of education and not the county board of commissioners. 1974 Op. Att'y Gen. No. U74-55.

Costs in examining nomination petition not assessable.

- The ordinary (now superintendent) is not authorized to assess the costs incurred in examining the nomination petition against the candidate submitting the petition. If no appropriations are made to cover such expenses, the ordinary may be compensated for services pursuant to the method prescribed in former Code 1933, § 24-110 (see now O.C.G.A. § 15-1-12). 1968 Op. Att'y Gen. No. 68-233.

Setting of election costs authorized.

- The board of commissioners of a county has the authority to set the amounts that will be received by the probate judge, acting as a superintendent of elections, for election costs. 1976 Op. Att'y Gen. No. U76-50.

Rejection of exorbitant bill.

- A county governing authority may reject a bill for expenses submitted by a probate judge, acting as a superintendent of elections, for the conduct of an election in the event the county governing authority determines such bill to be exorbitant; however, the county governing authority must pay the expenses of a special primary even though the need for the special primary arose solely as a result of an error on the part of the probate judge. 1978 Op. Att'y Gen. No. U78-44.

Compensation included in budget of election expenses.

- An ordinary (now superintendent), compensated under the fee system, may properly include in the ordinary's budget of election expenses, compensation computed from the schedule of costs found in former Code 1933, § 24-1716 (see now O.C.G.A. § 15-9-60). 1968 Op. Att'y Gen. No. 68-274.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 307.

C.J.S.

- 29 C.J.S., Elections, §§ 112, 121.

21-2-72. Primary and election records to be open to public.

Except when otherwise provided by law or court order, the primary and election records of each superintendent, registrar, municipal governing authority, and committee of a political party or body, including registration statements, nomination petitions, affidavits, certificates, tally papers, returns, accounts, contracts, reports, and other documents in official custody, except the contents of voting machines, shall be open to public inspection and may be inspected and copied by any elector of the county or municipality during usual business hours at any time when they are not necessarily being used by the custodian or his or her employees having duties to perform in reference thereto; provided, however, that such public inspection shall only be in the presence of the custodian or his or her employee and shall be subject to proper regulation for the safekeeping of such documents and subject to the further provisions of this chapter. The custodian shall also, upon request, if photocopying equipment is available in the building in which the records are housed, make and furnish to any member of the public copies of any of such records upon payment of the actual cost of copying the records requested.

(Code 1933, § 34-403, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 6; Ga. L. 1982, p. 437, §§ 1, 2; Ga. L. 1998, p. 295, § 1; Ga. L. 2005, p. 253, § 7/HB 244.)

Cross references.

- Penalty for willful refusal by superintendent to permit public inspection of election records, § 21-2-585.

Opening of public records for inspection by public generally, § 50-18-70 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, § 22 et seq. 26 Am. Jur. 2d, Elections, § 271 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 444 et seq.

21-2-73. Preservation of primary and election records.

All primary and election documents on file in the office of the election superintendent of each county, municipal governing authority, superintendent, registrar, committee of a political party or body, or other officer shall be preserved therein for a period of at least 24 months and then the same may be destroyed unless otherwise provided by law.

(Code 1933, § 34-404, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 7; Ga. L. 1978, p. 1004, § 4; Ga. L. 1998, p. 295, § 1; Ga. L. 2005, p. 253, § 8/HB 244.)

Cross references.

- Maintenance and disposition of public records generally, § 50-18-90 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, § 22 et seq. 26 Am. Jur. 2d, Elections, § 271 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 444 et seq.

21-2-74. Creation of board to assume duties of superintendent in counties without a board of elections and in which judge of probate court is candidate for public office.

  1. If a county does not have a board of elections and if the judge of the probate court of that county is a candidate, with opposition, for any public office in a primary or election, a board to be composed of the judge of the probate court who shall serve as chairperson, of an elector of the county named by the state Democratic executive committee, and of an elector of the county named by the state Republican executive committee shall assume the duties of the election superintendent for any such primary or election.
  2. In selecting a person to serve, the state executive committee is authorized to seek the recommendation of the county executive committee, if any; persons from the county who are active in the party; persons who are present or former officials in the party; persons who hold political office or who have sought political office as candidates of the party; and such other persons as the committee shall desire to consult.
  3. Within five days after the close of qualifying, the judge of the probate court shall notify the state Democratic and Republican party executive committees in writing of the need to appoint a member of the board. The state executive committees shall have 14 days from the close of qualifying to appoint their respective members of the board. If the state executive committee of a party has not notified the judge of the probate court of its appointment by the close of business on the fourteenth day after the close of qualifying, the judge of the probate court shall notify the chief judge of the superior court of the county. The chief judge shall appoint an elector of the county to serve on the board within seven days following the notice from the judge of the probate court. A board member may resign by giving written notice to the probate judge. In the event of the death, resignation, or other vacancy of the position of an appointed board member, the probate judge shall immediately notify the state executive committee of the appropriate party of such vacancy, and the state executive committee shall promptly fill such vacancy. If the state executive committee has not filled such vacancy within seven days after notification of such vacancy by the probate judge, the probate judge shall notify the chief judge of the superior court of the county of such vacancy and the chief judge shall appoint a person to serve within seven days after being so notified.
  4. The judge of the probate court shall swear in the other board members and shall instruct the other board members concerning their duties on the board. The board members shall begin service on the board on the date on which they take their oath as members of the board and shall serve until the judge of the probate court no longer has opposition or is no longer a candidate for public office, whichever comes first.
  5. Appointed board members shall receive a per diem of $55.00 per day for each day of service on the business of the board. Such fees shall be paid from county funds.

(Code 1933, § 34-405, enacted by Ga. L. 1970, p. 347, § 8; Ga. L. 1971, p. 602, § 5; Ga. L. 1993, p. 118, § 1; Ga. L. 1993, p. 617, § 3; Ga. L. 1996, p. 1216, § 1; Ga. L. 1997, p. 590, § 5; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 368. 46 Am. Jur. 2d, Judges, §§ 54, 121.

C.J.S.

- 48A C.J.S., Judges, § 280 et seq.

21-2-75. Eligibility of persons holding elective public office, or office in political party, to serve on county board of elections.

  1. No person who holds elective public office, as defined in this chapter and including every municipal office to which persons can be elected by a vote of the electors under the laws of this state, shall be eligible to serve as a member of a county board of elections during the term of such elective office; and the position of any county board of elections member shall be deemed vacant upon such member's qualifying as a candidate for elective public office, as defined in this chapter and including any municipal office to which persons can be elected by a vote of the electors under the laws of this state.
  2. No person who holds office in a political party at any level of such political party shall be eligible to serve as chairperson of a county board of elections during the term of such political party office. On and after April 15, 1996, the position of any chairperson of a county board of elections shall be deemed vacant upon such chairperson's assuming a political party office.

(Code 1933, § 34-605.1, enacted by Ga. L. 1978, p. 1037, § 1; Ga. L. 1996, p. 1216, § 2; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 84, 177.

C.J.S.

- 29 C.J.S., Elections, §§ 59, 110.

21-2-76. Eligibility of person to serve as county election superintendent.

No person who holds elective office, as defined in this chapter and including every municipal office to which persons can be elected by a vote of the electors under the laws of this state but excluding the office of probate judge, shall be eligible to serve as county or municipal election superintendent during the term of such elective office; and the position of any election superintendent other than a probate judge shall be deemed vacant upon such superintendent's qualifying as a candidate for elective public office, as defined in this chapter and including any municipal office to which persons can be elected by a vote of the electors under the laws of this state.

(Code 1981, §21-2-76, enacted by Ga. L. 1996, p. 1216, § 2; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 52, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Membership on county boards of elections.

- O.C.G.A. § 21-2-76 does not prohibit persons who hold office in political parties from serving as members of county boards of elections or boards of elections and registration as created under O.C.G.A. § 21-2-40. 1996 Op. Att'y Gen. No. 96-18.

21-2-77. Electronic election returns.

  1. Beginning with the election cycle in the year 2000, the superintendent of elections of each county shall provide electronically to the Secretary of State, within 45 days after the close of voting, election returns divided by precinct for each precinct in their respective counties for all primaries, elections, special primaries, special elections, and runoffs for such elections for federal or state offices held in that year or any following year.
  2. Beginning with the election cycle in the year 2002, the superintendent of elections of each county shall provide electronically to the Secretary of State, within seven days after the close of voting, election returns divided by precinct for each precinct in their respective counties for all primaries, elections, special primaries, special elections, and runoffs for such elections for federal, state, and county offices held in that year or any following year.
  3. The Secretary of State is authorized to prescribe by rule or regulation the type of electronic format for the provision of such election returns.

(Code 1981, §21-2-77, enacted by Ga. L. 2000, p. 13, § 1; Ga. L. 2003, p. 517, § 8.)

Law reviews.

- For note on 2000 enactment of this Code section, see 17 Ga. St. U. L. Rev. 178 (2000).

PART 4 P OLL OFFICERS

Cross references.

- Penalties for offenses committed against poll officers, §§ 21-2-566,21-2-569,21-2-584,21-2-593.

Penalty for offenses committed by poll officers, §§ 21-2-584 and21-2-587 et seq.

21-2-90. Appointment of chief manager and assistant managers.

All elections and primaries shall be conducted in each polling place by a board consisting of a chief manager, who shall be chairperson of such board, and two assistant managers assisted by clerks. The managers of each polling place shall be appointed by the superintendent. If the political parties involved elect to do so, they may submit to the superintendent, for consideration in making such appointment, a list of qualified persons. When such lists are submitted to the appropriate office, the superintendent, insofar as practicable, shall make appointments so that there shall be equal representation on such boards for the political parties involved in such elections or primaries. The superintendent shall make each appointment by entering an order which shall remain of record in the appropriate office and shall make such order available for public inspection upon request. The order shall include the name and address of the appointee, his or her title, and a designation of the precinct and primary or election in which he or she is to serve.

(Code 1933, § 34-501, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 4; Ga. L. 1970, p. 347, § 9; Ga. L. 1982, p. 1512, § 5; Ga. L. 1998, p. 295, § 1; Ga. L. 2005, p. 253, § 9/HB 244; Ga. L. 2010, p. 914, § 2/HB 540; Ga. L. 2011, p. 683, § 2/SB 82; Ga. L. 2012, p. 995, § 4/SB 92.)

JUDICIAL DECISIONS

New election managers 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).

Cited in Lewis v. O'Day, 284 Ga. 423, 667 S.E.2d 594 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Appointment of persons not on parties' lists.

- The superintendent may appoint persons to serve as managers who are not on political parties' lists and not affiliated with the parties, and if the superintendent also appoints some qualified persons from the lists, the superintendent must assure, insofar as the superintendent is able, that the parties have equal representation on the boards. 1974 Op. Att'y Gen. No. U74-39.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-91. Appointment of clerks.

Prior to the opening of the polls in each precinct at each primary and election, the superintendent shall appoint a sufficient number of clerks to serve therein at such primary or election. If additional clerks are required during the day for the purpose of counting ballots, or for other purposes, the superintendent may appoint same.

(Code 1933, § 34-502, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 5; Ga. L. 1983, p. 140, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-92. Qualifications of poll officers; service during municipal election or primary; Student Teen Election Participant (STEP) program.

  1. Poll officers appointed pursuant to Code Sections 21-2-90 and 21-2-91 shall be judicious, intelligent, and upright citizens of the United States, residents of or otherwise employed by the county in which they are appointed or, in the case of municipal elections, residents of or otherwise employed by the municipality in which the election is to be held or of the county in which that municipality is located, 16 years of age or over, and shall be able to read, write, and speak the English language. No poll officer shall be eligible for any nomination for public office or to be voted for at a primary or election at which the poll officer shall serve. No person who is otherwise holding public office, other than a political party office, shall be eligible to be appointed as or to serve as a poll officer. A parent, spouse, child, brother, sister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of a candidate shall not be eligible to serve as a poll officer in any precinct in which such candidate's name appears on the ballot in any primary or election.
  2. Notwithstanding the provisions of subsection (a) of this Code section, in the event that a municipal primary or election is held in conjunction with a regular county, state, or federal election, poll officers assigned by the county election superintendent to conduct such county, state, or federal election shall also be authorized to serve as poll officers to conduct such municipal election or primary and shall not be required to be residents of said municipality.
  3. Each local board of education and election superintendent shall be authorized to develop and implement through a coordinated effort a Student Teen Election Participant (STEP) program. The STEP program shall permit full-time public, private, and home schooled high school students to volunteer to work as poll officers during any primary, special, or general election. In addition to the qualifications set forth in subsection (a) of this Code section, a student participating in the STEP program shall:
    1. Be a United States citizen;
    2. Have a Georgia driver's license or Georgia state-issued identification card;
    3. Have demonstrated age-appropriate academic ability for the previous school year; and
    4. Have a history of responsible school and community behavior.

      A student participating in the STEP program shall at all times while working as a poll officer remain under the supervision of an adult poll officer or manager who is 21 years of age or older. No student shall be permitted to participate in the STEP program without the written authorization of his or her parent or legal guardian and such other documentation as may be required by the local board of education or election superintendent. A student in the STEP program shall work a minimum of four but not more than six hours during a single election day and shall receive age-appropriate training for serving as a poll officer. A student who successfully participates in the STEP program shall be counted as present and given full credit for the school day during which he or she served in the STEP program. No student shall be permitted to be absent from school or participate in the STEP program for more than two school days. The election superintendent and local board of education shall adopt mutually agreed upon rules, regulations, and policies prior to the initiation of a STEP program.

(Code 1933, § 34-503, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1994, p. 1406, § 1; Ga. L. 1997, p. 649, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2010, p. 914, § 3/HB 540; Ga. L. 2012, p. 1026, § 1/SB 101.)

Administrative Rules and Regulations.

- Student attendance, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Education, Regional Educational Services, Rule 160-5-1-.10.

JUDICIAL DECISIONS

Poll officer ineligible to be candidate.

- Subsection (a) of this subsection was not merely a prohibition relative to a candidate serving as a poll officer, but instead emphatically provides that a poll officer was ineligible to be a candidate. Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189 (1969).

Effect is not to void primary, but to disqualify candidate.

- While a candidate acting as a poll officer might not invalidate the primary at which the candidate served, it would disqualify the candidate to hold the office which was voted for at the primary. The effect is not to void the election but to disqualify the prospective candidate. Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189 (1969).

OPINIONS OF THE ATTORNEY GENERAL

Registrar as poll officer.

- There is no statutory prohibition against a member of the county board of registrars serving as a poll officer during a primary or election but the duties imposed upon a registrar during the conduct of a primary or election make such service as a poll officer difficult, if not impossible. 1985 Op. Att'y Gen. No. 85-38.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85.

C.J.S.

- 29 C.J.S., Elections, § 110.

21-2-93. Oath of office for managers and clerks.

Before entering upon their duties at any primary or election, all managers and clerks shall be duly sworn in the presence of each other. The chief manager shall first be sworn by an assistant manager, and the assistant managers and clerks shall then be sworn by the chief manager. Each of them shall immediately sign in duplicate the oath taken by him or her upon forms to be furnished by the superintendent, and the same shall be attested by the officer who administered the oath.

(Code 1933, § 34-504, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85.

C.J.S.

- 29 C.J.S., Elections, § 111.

21-2-94. Form of manager's oath.

The following shall be the form of the oath to be taken by each manager:

"I, ____________________________, do swear (or affirm) that I will as manager duly attend the ensuing election (or primary) during the continuance thereof, that I will not admit any person to vote, except such as I shall firmly believe to be registered and entitled to vote at such election (or primary), according to the laws of this state, that I will not vexatiously delay or refuse to permit any person to vote whom I shall believe to be entitled to vote as aforesaid, that I will use my best endeavors to prevent any fraud, deceit, or abuse in carrying on the same, that I will make a true and perfect return of the said election (or primary), and that I will at all times truly, impartially, and faithfully perform my duties therein to the best of my judgment and ability."

(Code 1933, § 34-505, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-1202 are included in the annotations for this Code section.

Failure to take oath not ground for relief in equity.

- A complaint that an election manager failed to take the required oath shows a mere irregularity; and, where it was not alleged that this in any wise affected the result of the election, it would not therefore be a ground for relief in equity. Hughes v. Griner, 208 Ga. 47, 65 S.E.2d 24 (1951) (decided under former Code 1933, § 34-1202).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85.

C.J.S.

- 29 C.J.S., Elections, § 111.

21-2-95. Form of clerk's oath.

The following shall be the form of the oath to be taken by each clerk:

"I, ____________________________, do swear (or affirm) that I will as a clerk attend the ensuing election (or primary) during the continuance thereof, that I will use my best endeavors to prevent any fraud, deceit, or abuse in carrying on the same, and that I will at all times truly, impartially, and faithfully perform my duties therein to the best of my judgment and ability."

(Code 1933, § 34-506, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

Administrative Rules and Regulations.

- Tabulating center personnel, trained and certified, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Voting Machines - Vote Recorders, § 183-1-12-.03.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85.

C.J.S.

- 29 C.J.S., Elections, § 111.

21-2-96. Administration of oaths by managers.

Each of the managers shall have the power to administer oaths to any person claiming the right to vote or in any matter or thing required to be done or inquired into by them under this chapter.

(Code 1933, § 34-507, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-97. Identification badges for poll officers.

Each poll officer, while in the performance of his or her duty, shall display conspicuously upon his or her person a badge showing his or her name and office; and such badge shall be supplied by the superintendent.

(Ga. L. 1963, p. 506, § 1; Code 1933, § 34-510, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 85, 92 et seq.

C.J.S.

- 29 C.J.S., Elections, § 113 et seq.

21-2-98. Compensation of poll officers.

  1. The compensation of managers and clerks serving in elections shall be fixed and paid by the superintendent or, in the case of municipal elections, by the governing authority. Compensation for such poll officers serving in a primary shall be fixed and paid by the superintendent.
  2. Notwithstanding the provisions of subsection (a) of this Code section, in all counties of this state having a population of 200,000 or more according to the United States decennial census of 1990 or any future such census, the minimum compensation for the chief manager shall be $95.00 per diem; the minimum compensation for each assistant manager shall be $66.00 per diem; and the minimum compensation for each clerk shall be $60.00 per diem.
  3. It shall not be necessary to compensate volunteers who are appointed to serve as poll officers and who agree to perform the duties of manager or clerk without compensation.

(Ga. L. 1896, p. 40, §§ 1, 2; Civil Code 1910, § 82; Code 1933, § 34-1303; Ga. L. 1952, p. 197, § 1; Ga. L. 1957, p. 218, § 1; Code 1933, § 34-508, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1982, p. 513, §§ 1, 2; Ga. L. 1992, p. 2590, § 2; Ga. L. 1995, p. 570, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2010, p. 914, § 4/HB 540.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 85. 26 Am. Jur. 2d, Elections, § 307.

C.J.S.

- 29 C.J.S., Elections, §§ 112, 121.

21-2-99. Instruction of poll officers and workers in election procedures; certifications; notification of completion of training to Secretary of State.

  1. The election superintendent shall provide adequate training to all poll officers and poll workers regarding the use of voting equipment, voting procedures, all aspects of state and federal law applicable to conducting elections, and the poll officers' or poll workers' duties in connection therewith prior to each general primary and general election and each special primary and special election; provided, however, such training shall not be required for a special election held between the date of the general primary and the general election. Upon successful completion of such instruction, the superintendent shall give to each poll officer and poll worker a certificate to the effect that such person has been found qualified to conduct such primary or election with the particular type of voting equipment in use in that jurisdiction. Additionally, the superintendent shall notify the Secretary of State on forms to be provided by the Secretary of State of the date when such instruction was held and the number of persons attending and completing such instruction. For the purpose of giving such instructions, the superintendent shall call such meeting or meetings of poll officers and poll workers as shall be necessary. Each poll officer shall, upon notice, attend such meeting or meetings called for his or her instruction.
  2. No poll officer or poll worker shall serve at any primary or election unless he or she shall have received instructions, as described in subsection (a) of this Code section; shall have been found qualified to perform his or her duties in connection with the type of voting equipment to be used in that jurisdiction; and shall have received a certificate to that effect from the superintendent; provided, however, that this shall not prevent the appointment of a poll officer or poll worker to fill a vacancy arising on the day of a primary or election or on the preceding day.

(Code 1933, § 34-509, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 4; Ga. L. 2002, p. 437, § 1; Ga. L. 2005, p. 253, § 10/HB 244.)

Administrative Rules and Regulations.

- Training and certification of tabulating center personnel, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Voting Machines - Vote Recorders, § 183-1-12-.03.

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, §§ 113 et seq., 337, 338.

21-2-100. Training of local election officials.

  1. The election superintendent and at least one registrar of the county or, in counties with boards of election or combined boards of election and registration, at least one member of the board or a designee of the board shall attend a minimum of 12 hours' training annually as may be selected by the Secretary of State. The election superintendent and at least one registrar of each municipality shall attend a minimum of 12 hours' training biennially as may be selected by the Secretary of State.
  2. The basis for the minimum requirement of training shall be two calendar years.
  3. A waiver of the requirement of minimum training, either in whole or in part, may be granted by the Secretary of State, in the discretion of the Secretary of State, upon the presentation of evidence by the election superintendent, registrar, or board that the individual was unable to complete such training due to medical disability, providential cause, or other reason deemed sufficient by the Secretary of State.
  4. The cost of the training shall be borne by the governing authority of each county from county funds and by the municipal governing authority from municipal funds.
  5. A superintendent or registrar and the county or municipal governing authority which employs the superintendent or registrar may be fined by the State Election Board for failure to attend the training required in this Code section.
  6. The minimum training required under this Code section shall not apply to deputy registrars.

(Code 1981, §21-2-100, enacted by Ga. L. 1994, p. 1443, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 4, 28; Ga. L. 2001, p. 240, § 5; Ga. L. 2005, p. 253, § 11/HB 244.)

Editor's notes.

- Ga. L. 1994, p. 1443, § 28, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval [April 15, 1994] for the purpose of authorizing the Secretary of State to design and distribute such forms and materials and to develop, procure, and install such computer hardware and software as are required under the provisions of this Act and to exercise such administrative authority as such officer deems necessary and proper for the implementation of this Act. For all other purposes, this Act shall become effective January 1, 1995."

21-2-101. Certification program for county and municipal election superintendents or election board designee; waiver of certification; failure to comply; remedial training; regulatory authority.

  1. All county and municipal election superintendents, chief registrars, and absentee ballot clerks or, in the case of a board of elections or a board of elections and registration, the designee of such board charged with the daily operations of such board shall become certified by completing a certification program approved by the Secretary of State within six months following their appointment. Such program may include instruction on, and may require the superintendent to demonstrate proficiency in, the operation of the state's direct recording electronic voting equipment, the operation of the voting equipment used in such superintendent's jurisdiction, and in state and federal law and procedures related to elections. The local government employing the superintendent or designee shall cover the costs, if any, incurred by such superintendent's or designee's participation in the certification program. Such certification programs shall be offered by the Secretary of State on multiple occasions before December 31 of the year in which such superintendents or designees are appointed and shall not exceed 64 hours of classroom, online, and practical instruction as authorized and approved by the Secretary of State.
  2. Reserved.
    1. A full, partial, or conditional waiver of the certification requirement may be granted by the Secretary of State, in the discretion of the Secretary of State, upon the presentation of evidence by the election superintendent or board that the individual was unable to complete such training due to medical disability, providential cause, or other reason deemed sufficient by the Secretary of State.
    2. In the event that a municipality authorizes a county to conduct its elections pursuant to Code Section 21-2-45, the municipality may be granted by the Secretary of State, in the discretion of the Secretary of State, a waiver of the certification requirement, provided that the superintendent in charge of running the municipal election shall have previously completed a certification program approved by the Secretary of State and has demonstrated a proficiency in the operation of the voting equipment used in said municipality.
  3. A superintendent and the county or municipal governing authority which employs such superintendent may be fined by the State Election Board for failure to attain the certification required in this Code section.
  4. After notice and hearing as provided in Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the State Election Board may require additional or remedial training or limit, suspend, or revoke the certification of a superintendent if such superintendent is found to have violated any provision of this chapter or any rule, regulation, or order issued by the State Election Board. In its discretion, the State Election Board may reinstate such certification.
  5. The State Election Board is authorized to promulgate, amend, or repeal rules and regulations for the implementation of this Code section. Such rules and regulations may include provisions related to additional or remedial training or the limitation, suspension, revocation, or reinstatement of a superintendent's certification issued by the Secretary of State.

(Code 1981, §21-2-101, enacted by Ga. L. 2003, p. 517, § 9; Ga. L. 2005, p. 253, § 12/HB 244; Ga. L. 2007, p. 544, § 1/SB 194; Ga. L. 2008, p. 781, § 5/HB 1112; Ga. L. 2010, p. 914, § 5/HB 540; Ga. L. 2017, p. 697, § 1/HB 268; Ga. L. 2018, p. 1112, § 21/SB 365.)

The 2017 amendment, effective July 1, 2017, substituted "within six months following their appointment" for "by no later than December 31 of the year in which they are appointed" at the end of the first sentence of subsection (a); substituted the present provisions of subsection (b) for the former provisions, which read: "Any county chief registrar or municipal absentee ballot clerk appointed prior to January 1, 2010, who has not met the certification requirement shall complete a certification program approved by the Secretary of State by no later than December 31, 2011"; and added subsections (e) and (f).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of subsection (e).

JUDICIAL DECISIONS

Cited in Lewis v. O'Day, 284 Ga. 423, 667 S.E.2d 594 (2008).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, § 108 et seq.

ARTICLE 3 REGISTRATION OF AND COMMITTEE ORGANIZATION OF POLITICAL PARTIES AND BODIES

RESEARCH REFERENCES

ALR.

- Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.

21-2-110. Filing of registration statements by political parties or bodies with the Secretary of State; contents of registration statements; amendments; filing fees; failure to file statement.

  1. The chief executive officer of each political party or body operating in this state shall, within 60 days after the date of its organization or after June 24, 1964, whichever is later, file with the Secretary of State a registration statement setting forth:
    1. Its name and the date and place of its creation;
    2. The general purposes for which it was created;
    3. Certified copies of its charter, bylaws, rules, and regulations, and other documents of like dignity governing its organization and operation;
    4. The address of its principal office;
    5. The names, home addresses, and titles of the persons composing its governing committee and executive officers; and
    6. Such other information as the Secretary of State may require as necessary or appropriate in the public interest.
  2. The chief executive officer of each municipal executive committee, whose state executive committee has already filed with the Secretary of State as a political party or body, shall promptly file with the city clerk of the municipality and with its state political party or body executive committee a registration statement setting forth:
    1. Its name and certified copies of its charter, bylaws, rules and regulations, and other documents of like dignity governing its organization and operation;
    2. The address of its principal office; and
    3. The names of its members, home addresses, and titles of the persons composing its governing committee and executive officers.
  3. No registration statement of a party, body, or municipal executive committee shall be filed if the name of such party, body, or municipal executive committee is identical with, or deceptively similar to, the name of any other existing party, body, or municipal executive committee which was organized earlier and is eligible at the time to file its registration statement with the Secretary of State.
  4. Within 30 days after the occurrence of a change in the information contained in any registration statement, or prior amendment thereto, the chief executive officer of the party, body, or municipal executive committee filing such statement shall file an amendment thereto setting forth the information necessary to maintain the currency of such statement.
  5. The Secretary of State shall receive a fee of $10.00 for filing each registration statement required by subsection (a) of this Code section and a fee of $2.00 for filing each amendment thereto.
  6. A political party, body, or municipal executive committee failing to file a registration statement as required by subsection (a) or (b) of this Code section at least 60 days before any primary or election at which it shall seek to have candidates on the ballot shall not have its name or the names of its candidates placed on any nomination petition, ballot, or ballot label.

(Code 1933, § 34-901, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1.)

Cross references.

- Designation by political parties of poll watchers, § 21-2-408.

JUDICIAL DECISIONS

Cited in Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 196.

C.J.S.

- 29 C.J.S., Elections, § 149 et seq.

ALR.

- Constitutionality of candidate participation provisions for primary elections, 121 A.L.R.5th 1.

21-2-111. Establishment of state and county executive committees; membership and officers; duties; applicability of chapter to persons seeking party office in a primary.

  1. Each political party shall establish and maintain a state executive committee exercising state-wide jurisdiction and control over party affairs and a county executive committee in each county in which it holds a primary, exercising county-wide jurisdiction and control over party affairs. A party may establish and maintain such other committees as it may from time to time deem advisable. The membership of such committees shall be selected in the manner determined by the state executive committee. Each committee shall be presided over by a chairperson and shall have a secretary and such other officers as deemed advisable, and a list of all such committees shall be filed with the appropriate election official for the state or county. The state executive committee shall have the same power over municipal party executive committees as it has over county party executive committees.
  2. The state executive committee of each political party shall formulate, adopt, and promulgate rules and regulations, consistent with law, governing the conduct of conventions and other party affairs. No such rule and regulation shall be effective until copies thereof, certified by the chairperson, have been filed with the Secretary of State.
  3. The respective county executive committees of each political party shall formulate, adopt, and promulgate rules and regulations, consistent with law and the rules and regulations of the state executive committee, governing the conduct of conventions and other party affairs. No such rule and regulation shall be effective until copies thereof, certified by the chairperson, have been filed with the superintendent of the county.
  4. Any person seeking party office in a primary shall be governed by this chapter relating to a person seeking party nomination in a primary insofar as such application is practicable.

(Code 1933, § 34-902, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 6.)

JUDICIAL DECISIONS

Cited in Smith v. State Executive Comm. of Democratic Party, 288 F. Supp. 371 (N.D. Ga. 1968); Grogan v. Paulding County Democratic Executive Comm., 246 Ga. 206, 269 S.E.2d 467 (1980).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 194 et seq.

C.J.S.

- 29 C.J.S., Elections, § 149 et seq.

ALR.

- Extent of power of political party, committee, or officer to exclude persons from participating in its primaries as voters or candidates, 97 A.L.R. 685, 151 A.L.R. 1121.

21-2-112. Hearings before state committee; suspension of powers and duties of county committee; delegation of powers by state committee.

  1. When the state executive committee of a political party has reason to believe that the orders, rules, or regulations of the state executive committee, relating to all party matters except the conduct of primaries, are not being, or will not be, fairly, impartially, or properly enforced or applied in any county by the county executive committee of the party in such county, the state executive committee shall issue to such county committee a written notice of opportunity for hearing.
  2. A notice of opportunity for hearing shall state the substance of the order which the state committee proposes to issue under subsection (e) of this Code section and advise such county committee of its right to a hearing upon request to the state committee if such request is received by it within the time specified in the notice.
  3. Whenever such county committee requests a hearing in accordance with this Code section, the state committee shall immediately set a date, time, and place for such hearing and shall forthwith notify the county committee thereof.
  4. A stenographic record of the testimony and other evidence submitted at the hearing shall be taken and filed with the state committee. Each witness appearing at the hearing shall be sworn prior to testifying.
  5. If the state committee does not receive a timely request for hearing or if a hearing is requested and conducted as provided in this Code section and the state committee determines that all or any part of the proposed relief described in the notice of opportunity for hearing should be granted, the state committee may issue an order, effective for a certain period, suspending and superseding all or any part of the powers and duties of the county committee and directing that the powers and duties which would have been exercised and performed by such county executive committee in those matters in which they have been suspended and superseded shall be exercised and performed by the persons designated by the state executive committee, who may be residents of any county of this state, notwithstanding any other provision of this chapter.
  6. The state executive committee may delegate its powers under this Code section to a subcommittee.

(Code 1933, § 34-903, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 11; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 194 et seq.

C.J.S.

- 29 C.J.S., Elections, § 149 et seq.

21-2-113. Chief executive and county executive committees.

  1. Each political body shall establish and maintain a chief executive committee exercising jurisdiction and control over body affairs in the area of the state in which it operates and a county executive committee exercising county-wide jurisdiction and control over body affairs in each county in which the body operates if it operates in two or more counties. A body may establish and maintain such other committees as it may from time to time deem advisable. The membership of such committees shall be selected in the manner determined by the chief executive committee. Each committee shall be presided over by a chairperson and shall have a secretary and such other officers as deemed advisable.
  2. The chief executive committee of each political body shall formulate, adopt, and promulgate rules and regulations, consistent with law, governing the conduct of conventions and other body affairs. No such rule and regulation shall be effective until copies thereof, certified by the chairperson, have been filed with the Secretary of State.
  3. The respective county executive committees of each political body shall formulate, adopt, and promulgate rules and regulations, consistent with law and the rules and regulations of the chief executive committee, governing the conduct of conventions and other body affairs. No such rule or regulation shall be effective until a copy thereof, certified by the chairperson, has been filed with the superintendent of the county.
  4. Whenever a municipal executive committee of a political party is established, such committee shall formulate, adopt, and promulgate rules and regulations, consistent with law and the rules and regulations of the State Election Board and the state executive committee, governing the conduct of primaries, conventions, and other party affairs within the municipality. No such rule and regulation shall be effective until copies thereof, certified by the chairperson, have been filed with the clerk of the municipality.

(Code 1933, § 34-905, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Cited in Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 195.

C.J.S.

- 29 C.J.S., Elections, § 155 et seq.

ALR.

- Extent of power of political party, committee, or officer to exclude persons from participating in its primaries as voters or candidates, 70 A.L.R. 1501, 88 A.L.R. 473, 97 A.L.R. 685, 151 A.L.R. 1121.

ARTICLE 4 SELECTION AND QUALIFICATION OF CANDIDATES AND PRESIDENTIAL ELECTORS

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 34-19 are included in the annotations for this article.

Nomination by primary or by petition not unconstitutional.

- Georgia has not violated the equal protection clause of the Fourteenth Amendment by making available two alternative paths for nomination of candidates, neither of which can be assumed to be inherently more burdensome than the other. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Right to endorse candidates generally.

- Any political organization, however new or however small, is free to endorse any otherwise eligible person as its candidate for whatever elective public office it chooses. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Election void when conducted with complete disregard for law.

- While failure to observe some of the requirements of the provisions of this former article might be mere irregularities not rendering the election void, when the election is conducted with an absolute and complete disregard for the law contained in that article, the election is void. Williams v. Cox, 214 Ga. 354, 104 S.E.2d 899 (1958), later appeal, 216 Ga. 535, 117 S.E.2d 899 (1961) (decided under former Code 1933, Ch. 34-19).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the provisions, opinions under former Code 1933, Ch. 34-10 are included in the annotations for this article.

Offices of Savannah city court and municipal court judge are county offices. 1970 Op. Att'y Gen. No. 70-124.

If special election fails, offices of justice of peace and constable are filled by election rather than appointment. 1969 Op. Att'y Gen. No. 69-59 (decided under former Code 1933, Ch. 34-10).

PART 1 G ENERAL PROVISIONS

Law reviews.

- For note on the 2001 amendments to this part, see 18 Ga. St. U. L. Rev. 96 (2001).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-111 are included in the annotations for this part.

Reservation of power by city as to voter and candidate qualifications.

- Where contract between city and county authorized county to conduct a "valid election" but specifically reserved in city the power to render decisions "concerning the qualifications of electors, candidates and other matters involving factual or legal questions," county board of registration and elections did not have authority to issue a resolution recommending that appellant be disqualified. Campbell v. Fulton County Bd. of Registration & Elections, 249 Ga. 845, 295 S.E.2d 80 (1982) (decided under former Code 1933, § 34A-111).

OPINIONS OF THE ATTORNEY GENERAL

Notice of intention need not be given in advance by write-in candidate in special election. 1969 Op. Att'y Gen. No. 69-59 (decided prior to enactment of O.C.G.A. 21-2-133).

RESEARCH REFERENCES

ALR.

- Construction and application of statutes and ordinances concerning establishment of residency as condition for running for municipal office, 74 A.L.R.6th 209.

21-2-130. Procedures for qualification of candidates generally.

Candidates may qualify for an election as follows:

  1. Nomination through a political party primary;
  2. Filing a notice of candidacy and affidavit and paying a qualifying fee or filing a pauper's affidavit with a pauper's petition in conjunction with:
    1. Filing a nomination petition declared lawful pursuant to Code Section 21-2-171 either as an independent candidate or as a nominee of a political body, if duly certified by the chairperson and the secretary of the political body as having been nominated in a duly constituted political body convention as prescribed in Code Section 21-2-172;
    2. Nomination for a state-wide office by a duly constituted political body convention as prescribed in Code Section 21-2-172 if the political body making the nomination has qualified to nominate candidates for state-wide public office under the provisions of Code Section 21-2-180;
    3. Candidacy in a special election as prescribed in subsection (e) of Code Section 21-2-132;
    4. Qualifying as an incumbent candidate to succeed such incumbent as prescribed in subsection (e) of Code Section 21-2-132; or
    5. Candidacy for election to a nonpartisan office;
  3. In the case of an election for presidential electors, nomination as prescribed by rules of a political party and subsection (f) of Code Section 21-2-153; or
  4. Substitute nomination by a political party or body as prescribed in Code Section 21-2-134.

(Code 1933, § 34-1001, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1983, p. 1190, § 2; Ga. L. 1986, p. 890, § 1; Ga. L. 1997, p. 590, § 6; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 3; Ga. L. 2017, p. 697, § 2/HB 268.)

The 2017 amendment, effective July 1, 2017, substituted "as follows" for "by virtue of" at the end of the introductory paragraph; substituted "through a political party primary" for "in a primary conducted by a political party" at the end of paragraph (1); rewrote paragraph (2); added subparagraphs (2)(A) through (2)(E); deleted former paragraph (3), which read: "Nomination for a state-wide office by a duly constituted political body convention as prescribed in Code Section 21-2-172 if the political body making the nomination has qualified to nominate candidates for state-wide public office under the provisions of Code Section 21-2-180;"; redesignated former paragraphs (4) and (5) as present paragraphs (3) and (4), respectively; in paragraph (3), inserted "and subsection (f) of Code Section 21-2-153" and added "or" at the end; substituted "Code Section 21-2-134" for "Code Sections 21-2-134 and 21-2-155, respectively;" at the end of paragraph (4); deleted former paragraph (6), which read: "Candidacy in a special election as prescribed in subsection (e) of Code Section 21-2-132; or"; and deleted former paragraph (7), which read: "Being an incumbent qualifying as a candidate to succeed such incumbent as prescribed in subsection (e) of Code Section 21-2-132."

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Law reviews.

- For article discussing the impact on bond issues of challenges to voting procedures, see 15 Ga. St. B. J. 15 (1978).

JUDICIAL DECISIONS

Requirement of filing nominating petitions.

- While political parties may nominate candidates through primaries without submitting nominating petitions, nominees of "political bodies" and independent candidates must file nominating petitions to obtain ballot space. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom., Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Effect of federal preclearance procedure.

- Where plaintiff political party held no convention in 1986 to choose its nominees but claimed it was denied ballot access by the fact that it was notified of the resolution of the federal preclearance procedure one day after the deadline for filing notice of candidacy, the court found no merit in this argument since the notice of candidacy provision, enacted a year before the June 9, 1986 preclearance determination, was not altered by the 1986 amendments in O.C.G.A. T. 21 and thus was not subject to the preclearance determination. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Where plaintiff political body contended federal preclearance of the 1986 amendments to this title was "late," plaintiff should have complied with the unchallenged Election Code requirements of holding a convention and filing notice of candidacy. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980).

OPINIONS OF THE ATTORNEY GENERAL

Candidate may utilize nomination petition despite the fact that a primary will be conducted. 1965-66 Op. Att'y Gen. No. 66-177 (See also 1986 Op. Att'y Gen. 86-41).

Listing of political body designation with candidate's name.

- A candidate who wishes to have a political body affiliation listed on the ballot would have to comply with the certification requirements of former Code 1933, § 34-1001 (see now O.C.G.A. § 21-2-130(2)) except when the Election Code dispenses with the requirement of a nomination petition pursuant to former Code 1933, § 34-1002 (see now O.C.G.A. § 21-2-132). 1972 Op. Att'y Gen. No. 72-123.

Authority of party to refuse to qualify candidate.

- The state and county executive committees of a political party have the authority to refuse to qualify a candidate upon a determination that such candidate does not meet the qualifications for nomination to a public office. 1976 Op. Att'y Gen. No. 76-90.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 249 et seq.

C.J.S.

- 29 C.J.S., Elections, § 234 et seq.

ALR.

- Residence or inhabitancy within district or other political unit for which he is elected or appointed as a necessary qualification of officer or candidate, in absence of express provision to that effect, 120 A.L.R. 672.

Constitutionality, construction, and application of statutes regarding party affiliations or change thereof as affecting eligibility to nomination for public office, 153 A.L.R. 641.

Construction and application of statutes and ordinances concerning establishment of residency, as condition for running for municipal office, 74 A.L.R.6th 209.

21-2-131. Fixing and publishing of qualification fees; manner of payment; distribution of fees paid.

  1. Qualification fees for party and public offices shall be fixed and published as follows:
      1. The governing authority of any county or municipality, not later than February 1 of any year in which a general primary, nonpartisan election, or general election is to be held, and at least 35 days prior to the special primary or election in the case of a special primary or special election, shall fix and publish a qualifying fee for each county or municipal office to be filled in the upcoming primary or election. Except as otherwise provided in subparagraph (B) of this paragraph, such fee shall be 3 percent of the total gross salary of the office paid in the preceding calendar year including all supplements authorized by law if a salaried office.
      2. For the offices of clerk of the superior court, judge of the probate court, sheriff, tax commissioner, and magistrate, the qualifying fee shall be 3 percent of the minimum salary specified in subsection (a) of Code Section 15-6-88, paragraph (1) of subsection (a) of Code Section 15-9-63, subsection (a) of Code Section 15-10-23, paragraph (1) of subsection (a) of Code Section 15-16-20, and paragraph (1) of subsection (b) of Code Section 48-5-183, exclusive of supplements, cost-of-living increases, and longevity increases. For the office of members of the county governing authority, the qualifying fee shall be 3 percent of the base salary established by local Act of the General Assembly or by Code Section 36-5-25 as adjusted pursuant to Code Section 36-5-24, if applicable, exclusive of compensation supplements for training provided for in Code Section 36-5-27 and cost-of-living adjustments pursuant to Code Section 36-5-28. If not a salaried office, a reasonable fee shall be set by the governing authority of such county or municipality, such fee not to exceed 3 percent of the income derived from such county office by the person holding the office for the preceding year or more than $35.00 for a municipal office;
    1. Within the same time limitation as provided in subparagraph (A) of paragraph (1) of this subsection, the Secretary of State shall fix and publish a qualifying fee for any candidate qualifying by this method with a state political party and for any candidate qualifying with the Secretary of State for a nonpartisan election and for any candidate filing with the Secretary of State his or her notice of candidacy for a general or special election. Such fee shall be 3 percent of the annual salary of the office if a salaried office, except that the fee for members of the General Assembly shall be $400.00. If not a salaried office, a reasonable fee shall be set by the Secretary of State, such fee not to exceed 3 percent of the income derived from such office by the person holding the office for the preceding year;
    2. A reasonable qualifying fee may be set according to party rule for each political party office to be filled in a primary. Such fees shall be set and published by the county or state political party not later than February 1 of the year in which the primary is to be held for the filling of such party office.
  2. Qualifying fees shall be paid as follows:
    1. The qualifying fee for a candidate in a primary shall be paid to the county or state political party at the time the candidate qualifies;
    2. The qualifying fee for all other candidates shall be paid to the superintendent or Secretary of State at the time the notice of candidacy is filed by the candidate.
  3. Qualifying fees shall be prorated and distributed as follows:
    1. Fees paid to the county political party: 50 percent to be retained by the county political party with which the candidate qualified; 50 percent to be transmitted to the superintendent of the county with the party's certified list of candidates not later than 12:00 Noon of the third day after the deadline for qualifying in the case of a general primary and by 12:00 Noon of the day following the closing of qualifications in the case of a special primary. Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the county, to be applied toward the cost of the primary and election;
    2. Fees paid to the state political party: 75 percent to be retained by the state political party; 25 percent to be transmitted to the Secretary of State with the party's certified list of candidates not later than 12:00 Noon of the third day after the deadline for qualifying in the case of a general primary and by 12:00 Noon of the day following the closing of qualifications in the case of a special primary. Such fees shall be transmitted as soon as practicable by the Secretary of State as follows: one-third to the state treasury and two-thirds divided among the governing authorities of the counties in the candidate's district in proportion to the population of each such county according to the last United States decennial census, such fees to be applied to the cost of holding the election;
    3. Qualification fees paid to the superintendent of the county:
      1. If the person qualifies as a candidate of a political body, 50 percent shall be transmitted to the state executive committee of the appropriate political body and 50 percent shall be retained by the superintendent of the county;
      2. If the person qualifies directly with the election superintendent as a candidate of a political party in accordance with subsection (c) of Code Section 21-2-153, 25 percent shall be transmitted to the state executive committee of the appropriate political party and 75 percent shall be retained by the superintendent of the county; and
      3. If the person qualifies as an independent or nonpartisan candidate, the superintendent of the county shall retain the entire amount of the fees.

        Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the county, to be applied toward the cost of holding the election;

    4. Qualification fees paid to the Secretary of State shall be prorated and distributed as follows:
      1. If the person qualifies as the candidate of a political body, 75 percent shall be transmitted to the appropriate political body and 25 percent shall be retained by the Secretary of State; and
      2. If the person qualifies as an independent or nonpartisan candidate, the Secretary of State shall retain the entire amount of the fees.

        Such fees shall be transmitted as soon as practicable by the Secretary of State as follows: one-third to the state treasury and two-thirds divided among the governing authorities of the counties in proportion to the population of each county according to the last United States decennial census, such fees to be applied to the cost of holding the election;

    5. Qualification fees paid to the superintendent of a municipality:
      1. If the person qualifies as a candidate of a political body, 50 percent shall be transmitted to the state executive committee of the appropriate political body and 50 percent shall be retained by the superintendent of the municipality; and
      2. If the person qualifies as an independent or nonpartisan candidate, the superintendent of the municipality shall retain the entire amount of the fees.

        Such fees shall be transmitted as soon as practicable by the superintendent to the governing authority of the municipality, to be applied toward the cost of holding the election.

(Ga. L. 1962, p. 504, § 1; Ga. L. 1963, p. 172, § 1; Code 1933, § 34-1004, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 10A; Code 1933, § 34-1013, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1974, p. 4, § 2; Ga. L. 1982, p. 897, §§ 1, 2; Ga. L. 1983, p. 884, § 6-4; Ga. L. 1983, p. 1190, § 3; Ga. L. 1987, p. 1360, § 4; Ga. L. 1988, p. 294, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1989, p. 643, § 1; Ga. L. 1992, p. 2510, § 1; Ga. L. 1993, p. 617, § 4; Ga. L. 1995, p. 1027, § 2; Ga. L. 1997, p. 590, § 7; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1122, §§ 1, 2; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 4; Ga. L. 2001, p. 240, § 7; Ga. L. 2001, p. 269, § 4; Ga. L. 2003, p. 517, § 10; Ga. L. 2004, p. 103, § 1.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Ga. L. 1998, p. 295, § 1 and Ga. L. 1998, p. 1122, § 1 made a conflicting change in paragraph (a)(1). Because the governor signed Ga. L. 1998, p. 1122 later in time, the change made by that act takes precedence.

Law reviews.

- For comment on Stoner v. Fortson, Civil No. 16271 (N.D. Ga. May 11, 1972), holding fee requirement for placement on primary ballot unconstitutional, see 22 J. of Pub. L. 243 (1973). For comment on Jenness v. Little, Civil No. 12762 (N.D. Ga. 1969), holding bar against placement of candidate's name on ballot due to inability to pay qualifying fee is denial of equal protection, see 18 J. of Pub. L. 483 (1969).

JUDICIAL DECISIONS

Paragraph (a)(2) unconstitutional.

- The fee scale set out in former paragraph (a)(2) was in violation of the equal protection clause of U.S. Const., amend. 14 and was therefore unconstitutional. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973) (decided prior to 1983 amendments).

Requirement of filing fee for indigent candidate unconstitutional.

- To require of an indigent independent candidate in a general election that the candidate come forward with both a nominating petition and a qualifying fee, with no other means of getting on the ballot, is a violation of equal protection. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom., Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

To prohibit candidates from getting their names on the ballot solely because they cannot post a certain amount of money is illegal and unconstitutional. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom., Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Unless alternate method of ballot access provided.

- The unconstitutionality of a mandatory filing fee does not attach where the candidate can get the candidate's name on the ballot in some other fashion, either by nominating petition, primary election, or pauper's affidavit. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom., Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Reasonable filing fee permitted.

- The state or a political party can impose, upon prospective candidates, a filing fee the amount of which reasonably approximates the cost of actually processing a candidate's application for a place on the ballot. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973) (decided prior to 1983 amendments).

Provided it is not discriminatory.

- The state or a political party can impose qualifying requirements of prospective candidates so long as those requirements would not depend upon the economic status of the candidates or the financial resources of the voters or otherwise be so burdensome as to have a discriminatory effect. Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972) commented on in 22 J. of Pub. L. 243 (1973) (decided prior to 1983 amendments).

Erroneously computed qualifying fee.

- Chief magistrate was entitled to the salary provided by law for the magistrate's position, and not to a higher judicial salary based upon an erroneously computed qualifying fee which the magistrate paid prior to running for office. Rowland v. Tattnall County, 260 Ga. 109, 390 S.E.2d 217 (1990).

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Candidate for last one-half of an unexpired term must pay full qualification fee, just as if the candidate were running for a full term. 1970 Op. Att'y Gen. No. U70-77.

Qualification fees.

- Ga. L. 1968, p. 885, § 1 authorized city's governing authority to charge qualification fees to those running for office in a general city election. 1969 Op. Att'y Gen. No. 69-330.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 264 et seq.

ALR.

- Validity and effect of statutes exacting filing fees from candidates for public office, 89 A.L.R.2d 864.

21-2-132. Filing notice of candidacy, nomination petition, and affidavit; payment of qualifying fee; pauper's affidavit and qualifying petition for exemption from qualifying fee; military service.

  1. The names of nominees of political parties nominated in a primary and the names of nominees of political parties for the office of presidential elector shall be placed on the election ballot without their filing the notice of candidacy otherwise required by this Code section.
  2. Candidates seeking election in a nonpartisan election shall comply with the requirements of subsections (c) and (f) of this Code section, as modified by subsection (g) of this Code section, by the date prescribed and shall by the same date pay to the proper authority the qualifying fee prescribed by Code Section 21-2-131 in order to be eligible to have their names placed on the nonpartisan election ballots.
  3. All candidates seeking election in a nonpartisan election shall file their notice of candidacy and pay the prescribed qualifying fee by the date prescribed in this subsection in order to be eligible to have their names placed on the nonpartisan election ballot by the Secretary of State or election superintendent, as the case may be, in the following manner:
    1. Each candidate for the office of judge of the superior court, Judge of the Court of Appeals, or Justice of the Supreme Court, or the candidate's agent, desiring to have his or her name placed on the nonpartisan election ballot shall file a notice of candidacy, giving his or her name, residence address, and the office sought, in the office of the Secretary of State no earlier than 9:00 A.M. on the Monday of the eleventh week immediately prior to the election and no later than 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays;
    2. Each candidate for a county judicial office, a local board of education office, or an office of a consolidated government, or the candidate's agent, desiring to have his or her name placed on the nonpartisan election ballot shall file notice of candidacy in the office of the superintendent no earlier than 9:00 A.M. on the Monday of the eleventh week immediately prior to the election and no later than 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays;
      1. Each candidate for a nonpartisan municipal office or a designee shall file a notice of candidacy in the office of the municipal superintendent of such candidate's municipality during the municipality's nonpartisan qualifying period. Each municipal superintendent shall designate the days of such qualifying period, which shall be no less than three days and no more than five days. The days of the qualifying period shall be consecutive days. Nonpartisan qualifying periods shall commence no earlier than 8:30 A.M. on the third Monday in August immediately preceding the general election and shall end no later than 4:30 P.M. on the following Friday; and, in the case of a special election, the municipal nonpartisan qualifying period shall commence no earlier than the date of the call and shall end no later than 25 days prior to the election.
      2. In any case in which no individual has filed a notice of candidacy and paid the prescribed qualifying fee to fill a particular office in a nonpartisan municipal election, the governing authority of the municipality shall be authorized to reopen qualifying for candidates at 9:00 A.M. on the Monday next following the close of the preceding qualifying period and cease such qualifying at 5:00 P.M. on the Tuesday immediately following such Monday, notwithstanding the fact that such days may be legal holidays; and
    3. In any case where an incumbent has filed notice of candidacy and paid the prescribed qualifying fee in a nonpartisan election to succeed himself or herself in office but withdraws as a candidate for such office prior to the close of the applicable qualifying period prescribed in this subsection, qualifying for candidates other than such incumbent shall be reopened at 9:00 A.M. on the Monday next following the close of the preceding qualifying period and shall cease at 5:00 P.M. on the Tuesday immediately following such reopening, notwithstanding the fact that any such days may be legal holidays.
  4. All political body and independent candidates shall file their notice of candidacy and pay the prescribed qualifying fee by the date prescribed in this subsection in order to be eligible to have their names placed on the election ballot by the Secretary of State or election superintendent, as the case may be, in the following manner:
    1. Each elector for President or Vice President of the United States, or his or her agent, desiring to have the names of his or her candidates for President and Vice President placed on the election ballot shall file a notice of his or her candidacy, giving his or her name, residence address, and the office he or she is seeking, in the office of the Secretary of State during the period beginning at 9:00 A.M. on the fourth Monday in June immediately prior to the election and ending at 12:00 Noon on the Friday following the fourth Monday in June, notwithstanding the fact that any such days may be legal holidays;
    2. Each candidate for United States Senate, United States House of Representatives, or state office, or his or her agent, desiring to have his or her name placed on the election ballot shall file a notice of his or her candidacy, giving his or her name, residence address, and the office he or she is seeking, in the office of the Secretary of State during the period beginning at 9:00 A.M. on the Monday of the thirty-fifth week immediately prior to the election and ending at 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays, in the case of a general election.In the case of a special election to fill a federal office listed in this subsection, each candidate shall file a notice of his or her candidacy, giving his or her name, residence address, and the office he or she is seeking, in the office of the Secretary of State no earlier than the date of the call of the special election and no later than 60 days prior to the special election.In the case of a special election to fill a state office, each candidate shall file a notice of his or her candidacy, giving his or her name, residence address, and the office he or she is seeking, in the office of the Secretary of State no earlier than the date of the call of the special election and no later than 25 days prior to the special election;
    3. Each candidate for a county office, or his or her agent, desiring to have his or her name placed on the election ballot shall file notice of his or her candidacy in the office of the superintendent of his or her county during the period beginning at 9:00 A.M. on the Monday of the thirty-fifth week immediately prior to the election and ending at 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays, in the case of a general election and no earlier than the date of the call of the election and no later than 25 days prior to the election in the case of a special election;
    4. Each candidate for municipal office or a designee shall file a notice of candidacy in the office of the municipal superintendent of such candidate's municipality during the municipality's qualifying period. Each municipal superintendent shall designate the days of the qualifying period, which shall be no less than three days and no more than five days. The days of the qualifying period shall be consecutive days. Qualifying periods shall commence no earlier than 8:30 A.M. on the third Monday in August immediately preceding the general election and shall end no later than 4:30 P.M. on the following Friday; and, in the case of a special election, the municipal qualifying period shall commence no earlier than the date of the call and shall end no later than 25 days prior to the election; and
      1. In extraordinary circumstances as described in Code Section 21-2-543.1, each candidate, or his or her agent, desiring to have his or her name placed on the election ballot shall file a notice of his or her candidacy, giving his or her name, residence address, and the office he or she is seeking, with the office of the Secretary of State no earlier than the date of the call of the special election and no later than ten days after the announcement of such extraordinary circumstances.
      2. The provisions of this subsection shall not apply where, during the 75 day period beginning on the date of the announcement of the vacancy:
        1. A regularly scheduled general election for the vacant office is to be held; or
        2. Another special election for the vacant office is to be held pursuant to a writ for a special election issued by the Governor prior to the date of the announcement of the vacancy.

        The hours of qualifying each day shall be from 8:30 A.M. until 4:30 P.M. with one hour allowed for the lunch break; provided, however, that municipalities which have normal business hours which cover a lesser period of time shall conduct qualifying during normal business hours for each such municipality. Except in the case of a special election, notice of the opening and closing dates and the hours for candidates to qualify shall be published at least two weeks prior to the opening of the qualifying period.

  5. Each candidate required to file a notice of candidacy by this Code section shall, no earlier than 9:00 A.M. on the fourth Monday in June immediately prior to the election and no later than 12:00 Noon on the second Tuesday in July immediately prior to the election, file with the same official with whom he or she filed his or her notice of candidacy a nomination petition in the form prescribed in Code Section 21-2-170, except that such petition shall not be required if such candidate is:
    1. A nominee of a political party for the office of presidential elector when such party has held a national convention and therein nominated candidates for President and Vice President of the United States;
    2. Seeking office in a special election;
    3. An incumbent qualifying as a candidate to succeed himself or herself;
    4. A candidate seeking election in a nonpartisan election; or
    5. A nominee for a state-wide office by a duly constituted political body convention, provided that the political body making the nomination has qualified to nominate candidates for state-wide public office under the provisions of Code Section 21-2-180.
  6. Each candidate required by this Code section to file a notice of candidacy shall accompany his or her notice of candidacy with an affidavit stating:
    1. His or her full name and the name as the candidate desires it to be listed on the ballot. The surname of the candidate shall be the surname of the candidate as it appears on the candidate's voter registration card unless the candidate provides proof that his or her surname as it appears on the candidate's registration card is incorrect in which event the correct name shall be listed. After such name is submitted to the Secretary of State or the election superintendent, the form of such name shall not be changed during the election for which such notice of candidacy is submitted;
    2. His or her residence, with street and number, if any, and his or her post office address;
    3. His or her profession, business, or occupation, if any;
    4. The name of his or her precinct;
    5. That he or she is an elector of the county or municipality of his or her residence eligible to vote in the election in which he or she is a candidate;
    6. The name of the office he or she is seeking;
    7. That he or she is eligible to hold such office;
    8. That the candidate has never been convicted and sentenced in any court of competent jurisdiction for fraudulent violation of primary or election laws, malfeasance in office, or felony involving moral turpitude or conviction of domestic violence under the laws of this state or any other state or of the United States, or that the candidate's civil rights have been restored and that at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude;
    9. That he or she will not knowingly violate this chapter or rules and regulations adopted under this chapter; and
    10. Any other information as may be determined by the Secretary of State to be necessary to comply with federal and state law.

      The affidavit shall contain such other information as may be prescribed by the officer with whom the candidate files his or her notice of candidacy.

  7. A pauper's affidavit may be filed in lieu of paying the qualifying fee otherwise required by this Code section and Code Sections 21-2-131 and 21-2-138 of any candidate who has filed a qualifying petition as provided for in subsection (h) of this Code section. A candidate filing a pauper's affidavit instead of paying a qualifying fee shall under oath affirm his or her poverty and his or her resulting inability to pay the qualifying fee otherwise required. The form of the affidavit shall be prescribed by the Secretary of State and shall include a financial statement which lists the total income, assets, liabilities, and other relevant financial information of the candidate and shall indicate on its face that the candidate has neither the assets nor the income to pay the qualifying fee otherwise required. The affidavit shall contain an oath that such candidate has neither the assets nor the income to pay the qualifying fee otherwise required. The following warning shall be printed on the affidavit form prepared by the Secretary of State, to wit: "WARNING: Any person knowingly making any false statement on this affidavit commits the offense of false swearing and shall be guilty of a felony." The name of any candidate who subscribes and swears to an oath that such candidate has neither the assets nor the income to pay the qualifying fee otherwise required shall be placed on the ballot by the Secretary of State or election superintendent, as the case may be.
  8. No candidate shall be authorized to file a pauper's affidavit in lieu of paying the qualifying fee otherwise required by this Code section and Code Section 21-2-138 unless such candidate has filed a qualifying petition which complies with the following requirements:
    1. A qualifying petition of a candidate seeking an office which is voted upon state wide shall be signed by a number of voters equal to one-fourth of 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. A qualifying petition of a candidate for any other office shall be signed by a number of voters equal to 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. However, in the case of a candidate seeking an office for which there has never been an election or seeking an office in a newly constituted constituency, the percentage figure shall be computed on the total number of registered voters in the constituency who would have been qualified to vote for such office had the election been held at the last general election and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected;
    2. Each person signing a qualifying petition shall declare therein that he or she is a duly qualified and registered elector of the state entitled to vote in the next election for the filling of the office sought by the candidate supported by the petition and shall add to his or her signature his or her residence address, giving municipality, if any, and county, with street and number, if any. No person shall sign the same petition more than once. Each petition shall support the candidacy of only a single candidate. A signature shall be stricken from the petition when the signer so requests prior to the presentation of the petition to the appropriate officer for filing, but such a request shall be disregarded if made after such presentation. Each sheet shall bear on the bottom or back thereof the affidavit of the circulator of such sheet, which shall be subscribed and sworn to by such circulator before a notary public and shall set forth:
      1. His or her residence address, giving municipality with street and number, if any;
      2. That each signer manually signed his or her own name with full knowledge of the contents of the qualifying petition;
      3. That each signature on such sheet was signed within 180 days of the last day on which such petition may be filed; and
      4. That, to the best of the affiant's knowledge and belief, the signers are registered electors of the state qualified to sign the petition, that their respective residences are correctly stated in the petition, and that they all reside in the county named in the affidavit;
    3. A qualifying petition shall be in the form and manner determined by the Secretary of State and approved by the State Elections Board;
    4. No qualifying petition shall be circulated prior to 180 days before the last day on which such petition may be filed, and no signature shall be counted unless it was signed within 180 days of the last day for filing the same; and
    5. A qualifying petition shall not be amended or supplemented after its presentation to the appropriate officer for filing.

      No notary public may sign the petition as an elector or serve as a circulator of any petition which he or she notarized. Any and all sheets of a petition that have the circulator's affidavit notarized by a notary public who also served as a circulator of one or more sheets of the petition or who signed one of the sheets of the petition as an elector shall be disqualified and rejected.

  9. Reserved.
    1. Notwithstanding any provision of law to the contrary, any elected public officer who is performing ordered military duty, as defined in Code Section 38-2-279, shall be eligible for reelection in any primary or general election which may be held to elect a successor for the next term of office, and may qualify in absentia as a candidate for reelection to such office. The performance of ordered military duty shall not create a vacancy in such office during the term for which such public officer was elected.
    2. Where the giving of written notice of candidacy is required, any elected public officer who is performing ordered military duty may deliver such notice by mail, agent, or messenger to the proper elections official. Any other act required by law of a candidate may, during the time such officer is on ordered military duty, be performed by an agent designated in writing by the absent public officer.

(Ga. L. 1922, p. 97, § 3; Code 1933, § 34-1904; Ga. L. 1948, Ex. Sess., p. 3, § 1; Ga. L. 1962, p. 618, § 1; Code 1933, § 34-1001, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1965, p. 224, § 1; Ga. L. 1968, p. 826, § 1; Ga. L. 1968, p. 858, § 1; Ga. L. 1968, p. 871, § 5; Ga. L. 1969, p. 329, § 8B; Code 1933, § 34-1002, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1971, p. 602, § 2; Ga. L. 1977, p. 1053, § 3; Ga. L. 1978, p. 1004, § 16; Ga. L. 1979, p. 955, § 4; Ga. L. 1981, p. 1718, §§ 4, 11; Ga. L. 1982, p. 1512, § 5; Ga. L. 1983, p. 140, § 1; Ga. L. 1983, p. 884, § 6-5; Ga. L. 1983, p. 930, § 3; Ga. L. 1983, p. 1190, § 4; Ga. L. 1984, p. 133, § 1; Ga. L. 1984, p. 780, § 1; Ga. L. 1984, p. 1038, § 1; Ga. L. 1985, p. 496, § 3; Ga. L. 1986, p. 32, § 1; Ga. L. 1986, p. 890, § 2; Ga. L. 1987, p. 647, § 1; Ga. L. 1987, p. 1360, § 5; Ga. L. 1989, p. 643, § 2; Ga. L. 1990, p. 243, § 1; Ga. L. 1993, p. 118, § 1; Ga. L. 1994, p. 1406, § 2; Ga. L. 1995, p. 1027, § 3; Ga. L. 1996, p. 145, § 1; Ga. L. 1997, p. 590, § 8; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 23, § 1; Ga. L. 1999, p. 52, § 5; Ga. L. 2001, p. 269, § 5; Ga. L. 2001, Ex. Sess., p. 325, § 2; Ga. L. 2002, p. 437, § 1; Ga. L. 2003, p. 517, § 11; Ga. L. 2005, p. 253, §§ 13, 14/HB 244; Ga. L. 2006, p. 69, § 1/SB 467; Ga. L. 2008, p. 781, § 6/HB 1112; Ga. L. 2009, p. 311, § 2/HB 156; Ga. L. 2011, p. 678, § 1/HB 158; Ga. L. 2011, p. 683, § 2A/SB 82; Ga. L. 2012, p. 995, § 5/SB 92; Ga. L. 2014, p. 1, § 1/HB 310; Ga. L. 2016, p. 173, §§ 2, 3/SB 199; Ga. L. 2016, p. 864, § 21/HB 737; Ga. L. 2017, p. 697, § 3/HB 268; Ga. L. 2018, p. 1112, § 21/SB 365.)

The 2017 amendment, effective July 1, 2017, rewrote paragraph (d)(1); added paragraph (d)(2); redesignated former paragraph (d)(2) as present paragraph (d)(3); and, in paragraph (d)(3), deleted "either" following "his or her county" near the middle, and deleted "or during the period beginning at 9:00 A.M. on the fourth Monday in June immediately prior to the election and ending at 12:00 Noon on the Friday following the fourth Monday in June, notwithstanding the fact that any such days may be legal holidays," following "may be legal holidays," near the end; and redesignated former paragraphs (d)(3) and (d)(4) as present paragraphs (d)(4) and (d)(5), respectively.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "local board of education" for "local school board" near the beginning of paragraph (c)(2).

Cross references.

- Persons ineligible to hold public office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

False swearing generally, § 16-10-71.

Exercise of Secretary of State's duty upon failure to comply with write-in candidacy requirements, § 21-2-499.

Penalties for offenses relating to nomination petitions, §§ 21-2-563,21-2-564.

Penalty for making of false statement in connection with filing of notice of candidacy, § 21-2-565.

Qualifying in absentia for magistrates serving on active duty, § 15-10-20.1.

Code Commission notes.

- Pursuant to Code Section28-9-3, in 2011, the amendment of subparagraphs (i)(1)(A) and (i)(1)(B) of this Code section by Ga. L. 2011, p. 678, § 1, was treated as impliedly repealed and superseded by Ga. L. 2011, p. 683, § 2A, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Editor's notes.

- Ga. L. 1983, p. 930, § 1, not codified by the General Assembly, provided: "It is the intent of this Act to implement certain changes required by Article II, Section I, Paragraph III and Article II, Section II, Paragraph III of the Constitution of the State of Georgia."

Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Ga. L. 2011, p. 683, § 21A/SB 82, not codified by the General Assembly, provides, in part that: "Section 2A of this Act shall become effective on July 1, 2011, only if House Bill 158 is passed by the General Assembly during the 2011 regular session and is approved by the Governor or becomes law without such approval. Otherwise, Section 2A shall be repealed by operation of law on such date and shall be of no force and effect." House Bill 158 was Ga. L. 2011, p. 678, which was approved on May 13, 2011.

Law reviews.

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

Administrative Rules and Regulations.

- Appearance of candidate's name on ballot, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.02.

JUDICIAL DECISIONS

Effect of federal preclearance procedure.

- Where plaintiff political party held no convention in 1986 to choose its nominees but claimed it was denied ballot access by the fact that it was notified of the resolution of the federal preclearance procedure one day after the deadline for filing notice of candidacy, the court found no merit in this argument since the notice of candidacy provision, enacted one year before the June 9, 1986 preclearance determination was not altered by the 1986 amendments in O.C.G.A. T. 21 and thus was not subject to the preclearance determination. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Where plaintiff political body contended federal preclearance of the 1986 amendments to O.C.G.A. T. 21 was "late," plaintiff should have complied with the unchallenged Election Code requirements of holding a convention and filing notice of candidacy. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Lawsuit seeking name placed on ballot properly dismissed.

- Trial court properly dismissed a nominee's lawsuit seeking to have the nominee's name placed upon the ballot for the 2016 general election as an independent candidate for President of the United States because the notices of candidacy were submitted 11 days after the deadline set forth in O.C.G.A. § 21-2-132(d)(1) and the nominee failed to have enough signatures verified; thus, the nominee was not entitled to have the name placed on the ballot. De La Fuente v. Kemp, 300 Ga. 79, 793 S.E.2d 89 (2016).

For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Eligibility as independent candidate.

- Anyone who wishes, and who is otherwise eligible, may be an independent candidate for any office in this state. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

District court properly denied an independent candidate's motion for a preliminary injunction to block enforcement of the Georgia deadline statute in future presidential elections because the candidate failed to demonstrate that the candidate would suffer irreparable harm if a preliminary injunction did not issue and gave no reason to believe that the district court would be unable to rule on the candidate's requests for a permanent injunction and declaratory relief in the next three and a half years. De La Fuente v. Kemp, F.3d (11th Cir. Feb. 15, 2017)(Unpublished).

District court properly denied an independent candidate's motion for preliminary injunctive relief as to the 2016 presidential election insofar as the candidate sought to preclude enforcement of the Georgia deadline statute for the 2016 elections because the appellate court could not prevent what had already occurred. De La Fuente v. Kemp, F.3d (11th Cir. Feb. 15, 2017)(Unpublished).

Write-in votes.

- The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d),21-2-170(b) and (g),21-2-171(a),21-2-172, and21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a "political body" printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the candidate's choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Candidate's filing of a driver's license change of address form four days before declaring candidacy did not cause the candidate to be qualified to vote in the district the candidate sought to represent. Haynes v. Wells, 273 Ga. 106, 538 S.E.2d 430 (2000).

Sufficiency of evidence for making false statements in filing for candidacy for political office.

- In a case in which defendant appealed a conviction for false swearing, in violation of O.C.G.A. § 16-10-71(a), challenging the sufficiency of the evidence, the state failed to prove that defendant had the requisite criminal intent to support the conviction when defendant signed a declaration of candidacy for county commissioner as set forth in O.C.G.A. §§ 21-2-132 and21-2-153. Pursuant to O.C.G.A. § 17-7-95(c), a judgment imposing a sentence following a plea of nolo contendere was considered a conviction for some purposes; however, such a conviction did not disqualify defendant from holding public office or otherwise deprive defendant of any civil or political rights, and there was no evidence that defendant intended to deceive the election board or the voters, as defendant believed that the 1986 nolo contendere conviction to a charge of aggravated assault was generally known in the county. Spillers v. State, 299 Ga. App. 854, 683 S.E.2d 903 (2009).

Cited in Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 34A-901 and former Code Section 21-3-91 are included in the annotations for this Code section.

Qualifications for United States House of Representatives.

- Insofar as they require a candidate for the United States House of Representatives to be a registered voter or to be a resident of the district from which election is sought, Ga. Const. 1983, Art. II, Sec. II, Para. III and O.C.G.A. § 21-2-132 are unenforceable. 1983 Op. Att'y Gen. No. 83-62.

The only qualifications a candidate must possess to be eligible to seek the office of United States representative are those enumerated in U.S. Const., Art. I, Sec. II, Para. II. 1983 Op. Att'y Gen. No. 83-62.

When candidates to fill vacancy must qualify.

- Candidates seeking to fill the vacancy in the office of Judge of the Probate Court of Gwinnett County must qualify at the time specified in the call for the special election to fill the vacancy, which time cannot be earlier than the date of the call and not later than 25 days prior to the election, which must be held in conjunction with the 1986 November general election. 1986 Op. Att'y Gen. No. 86-26.

Methods for having name placed on ballot.

- The law set forth two methods by which an individual might have their name placed on an election ballot; the first method entailed a candidate's filing notice of candidacy in the office of the municipal superintendent within a prescribed time limit; the second method involved the nomination of a candidate by a political party or body. 1971 Op. Att'y Gen. No. 71-185 (decided under former Code 1933, § 34A-901).

Powers of city charter as to ballot requirements.

- A city charter cannot eliminate one of the methods by which a candidate might have a candidate's name placed on the ballot; however, it can impose the additional requirement that a nominating petition be presented by those not nominated by a political party. 1971 Op. Att'y Gen. No. 71-185 (decided under former Code 1933, § 34A-901).

Nominating petition is necessary only if the municipality's charter or ordinance so requires it, and it must be in the form prescribed by law. 1971 Op. Att'y Gen. No. 71-185 (decided under former Code 1933, § 34A-901).

Authority of election superintendent to set dates for qualifying in special elections.

- An election superintendent is vested with the authority and discretion to choose a period between the date of the call for the special election and 25 days prior to the special election for candidates to qualify to seek office in a special election. 1986 Op. Att'y Gen. No. 86-33.

Candidate for party primary need not qualify in person.

- Absent a requirement to the contrary in the procedural rules of the candidate's party, a candidate for a party nomination in a primary is not required to qualify in person. 1976 Op. Att'y Gen. No. U76-23.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 213 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 179, 239 et seq.

ALR.

- Mandatory or directory character of statutory provision as to time of filing candidate's application or certificate of nomination before primary or election, 72 A.L.R. 290.

Construction and application of statutes and ordinances concerning establishment of residency as condition for running for municipal office, 74 A.L.R.6th 209.

21-2-132.1. Certification of presidential electors for independent candidate for President or Vice President of the United States; qualification.

  1. An independent candidate for the office of President or Vice President of the United States shall file with the Secretary of State not later than the Friday before the opening of qualifying for such office as provided in subsection (d) of Code Section 21-2-132 a slate of candidates for the office of presidential elector which such independent candidate has certified as being the presidential electors for such independent candidate.
  2. The candidates for presidential electors certified by an independent candidate for the office of President or Vice President of the United States shall then qualify for election to such office in accordance with Code Section 21-2-132.
  3. An independent candidate for the office of President or Vice President of the United States may certify a number of candidates for the office of presidential elector that is equal to or less than the number of presidential electors who may be elected from the State of Georgia.

(Code 1981, §21-2-132.1, enacted by Ga. L. 2019, p. 7, § 3/HB 316.)

Effective date.

- This Code section became effective April 2, 2019.

Cross references.

- The Executive Branch, U.S. Const., art. II.

21-2-133. Giving notice of intent of write-in candidacy; filing of affidavit; limitations on candidacy; certification of candidates.

  1. No person elected on a write-in vote shall be eligible to hold office unless notice of his or her intention of candidacy was filed and published no earlier than January 1 and no later than the Tuesday after the first Monday in September prior to the election for county, state, and federal elections; no later than seven days after the close of the qualifying period for nonpartisan elections in the case of nonpartisan elections for state or county offices; no later than seven days after the close of the municipal qualifying period for municipal elections in the case of a general election; or no later than seven days after the close of the special election qualifying period for a special election by the person to be a write-in candidate or by some other person or group of persons qualified to vote in the subject election, as follows:
    1. In a state general or special election, notice shall be filed with the Secretary of State and published in a newspaper of general circulation in the state;
    2. In a general or special election of county officers, notice shall be filed with the superintendent of elections in the county in which he or she is to be a candidate and published in the official organ of the same county; or
    3. In a municipal general or special election, notice shall be filed with the superintendent and published in the official gazette of the municipality holding the election.

      In the event that such intention of candidacy is filed and published by a person or group of persons other than the candidate, such person or group of persons shall also file a written, notarized authorization by the candidate for such filing and publication.

  2. In addition to the requirements contained in subsection (a) of this Code section, the person or persons giving notice of intention of candidacy for a write-in candidate shall also file, with the appropriate official specified in paragraph (1), (2), or (3) of subsection (a) of this Code section, a copy of the notice as published with an affidavit stating that the notice has been published and including the name of the newspaper and the date of publication, not later than the fifth day after the deadline for filing and publishing such notice. The affidavit may be made by the person giving notice of intention of candidacy or by the publisher of the newspaper in which the notice was published or by an employee of the newspaper designated by the publisher.
  3. No person shall be eligible as a write-in candidate in a special or general primary, a special or general primary runoff, or in a special or general election runoff.
  4. No person shall be eligible as a write-in candidate in a general or special election if such person was a candidate for nomination or election to the same office in the immediately preceding primary.
    1. The Secretary of State shall certify and transmit to the election superintendent of each county affected within five days following the deadline for the submission by write-in candidates of the notice and documentation required by this Code section to be a write-in candidate in a general or special election the names of all persons who have filed notices of intention to be write-in candidates with the Secretary of State for such general or special election.
    2. The county election superintendent shall certify within five days following the deadline for the submission by write-in candidates for county offices of the notice and documentation required by this Code section to be a write-in candidate in a general or special election the names of all persons who have filed notices of intention to be write-in candidates with the county election superintendent for county offices for such general or special election.
    3. The municipal election superintendent shall certify within five days following the deadline for the submission by write-in candidates for municipal offices of the notice and documentation required by this Code section to be a write-in candidate in a general or special election the names of all persons who have filed notices of intention to be write-in candidates with the municipal election superintendent for municipal offices for such general or special election.

(Code 1933, § 34-1017, enacted by Ga. L. 1978, p. 1004, § 17; Ga. L. 1979, p. 963, § 1; Ga. L. 1987, p. 417, § 1; Ga. L. 1987, p. 1360, § 6; Ga. L. 1989, p. 682, § 1; Ga. L. 1997, p. 590, § 9; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 6; Ga. L. 2001, p. 230, § 5; Ga. L. 2001, p. 269, § 6; Ga. L. 2001, Ex. Sess., p. 325, § 3; Ga. L. 2002, p. 437, § 1; Ga. L. 2005, p. 253, § 15/HB 244; Ga. L. 2011, p. 678, § 2/HB 158; Ga. L. 2012, p. 995, § 6/SB 92; Ga. L. 2017, p. 697, § 4/HB 268.)

The 2017 amendment, effective July 1, 2017, added the ending undesignated paragraph of subsection (a).

Cross references.

- Persons not eligible to hold office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

Write-in votes in precincts using optical scanning voting equipment, § 21-2-486.

Editor's notes.

- Owing to the duplication in subsection designations in the 1987 amendments, the subsection (b) added by Ga. L. 1987, p. 1360 was unofficially redesignated as subsection (d).

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Construction with O.C.G.A. § 21-2-494. - Trial court did not err in finding that O.C.G.A. § 21-2-494 was constitutional, despite an election challenger's claim that it impermissibly allowed the exclusion of votes for write-in candidates and because it did not require that voters be provided with notice that write-in votes for unqualified candidates would not be counted, as: (1) it was undisputed that nine write-in votes were cast for individuals who were not eligible to hold office, as these people did not give proper notice of their intention of candidacy; (2) no voters were disenfranchised; (3) each voter was given the opportunity to vote for the candidate of his or her own choosing; and (4) the legislature properly exercised its power when it limited the counting of write-in votes to votes cast for qualified write-in candidates. Brodie v. Champion, 281 Ga. 105, 636 S.E.2d 511 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-910 are included in the annotations for this Code section.

Nominating petition is necessary only if the municipality's charter or ordinance so requires it, and it must be in the form prescribed by the law. 1971 Op. Att'y Gen. No. 71-185 (decided under former Code 1933, § 34A-910).

Official qualified to declare write-in candidate ineligible.

- The appropriate official to declare a write-in candidate for county office ineligible who has received a majority of votes cast in the election but did not publish notice of intention of candidacy at least 20 days prior to the election is the superintendent of elections of the county. 1984 Op. Att'y Gen. No. 84-84.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 232, 255, 295 et seq.

ALR.

- Elections: validity of state or local legislative ban on write-in votes, 69 A.L.R.4th 948.

21-2-134. Withdrawal, death, or disqualification of candidate for office; return of qualifying fee; nomination certificate.

    1. A candidate nominated at any primary election or nominated by means other than a primary may withdraw as a candidate at the ensuing general election by filing a notarized affidavit of withdrawal with the Secretary of State, if nominated for a state office; the county superintendent, if nominated for a county office; or the municipal superintendent, if nominated for a municipal office. If the ballots have been printed, the Secretary of State, the county superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted. No vacancy on the ballot for a general election or for a nonpartisan election shall be filled except by reason of the death or disqualification of a candidate or the withdrawal of a candidate as provided in paragraph (2) of subsection (b) of this Code section.
    2. A candidate in a general or special primary may withdraw as a candidate after qualifying but prior to the date of the general or special primary by filing a notarized affidavit of withdrawal with the Secretary of State, if qualifying for a state office; the county election superintendent, if qualifying for a county office; or the municipal superintendent, if qualifying for a municipal office. A candidate of a political body or an independent candidate in a general or special election may withdraw as a candidate after qualifying but prior to the date of the general or special election by filing a notarized affidavit of withdrawal with the Secretary of State, if qualifying for a state office; the county election superintendent, if qualifying for a county office; or the municipal superintendent, if qualifying for a municipal office. If the ballots have been printed, the Secretary of State, the county election superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted.
    1. Any vacancy in any party nomination filled by a primary created by reason of the death or disqualification of a candidate occurring after nomination may be filled in the following manner:
      1. In the case of a public office to be filled by the vote of the electors of this entire state in which the vacancy occurs after nomination but at least ten days prior to the election to fill the public office sought by such candidate, the vacancy may be filled by a substitute nomination made by a convention composed of the delegates of the county executive committee of such party in each county of this state. Immediately upon such vacancy occurring, the state executive committee or a subcommittee thereof appointed for the purpose shall fix a time within six days of the occurrence of such vacancy; shall select and provide a convenient place for the holding of such a convention, which shall be open to the public; and shall give notice thereof to the chairperson and secretary of each county executive committee. Each county executive committee shall be entitled to select the number of delegates apportioned to it by the state executive committee; provided, however, that each county executive committee shall be entitled to select at least one delegate. Such apportionment of delegates among the counties shall be based substantially upon the population of this state according to the last United States decennial census or upon the number of votes cast within this state for the party's candidates for presidential electors in the last presidential election. A two-thirds' majority of the delegates of such county executive committees shall constitute a quorum for the transaction of business, and a majority of the delegates present while a quorum exists shall be sufficient to fill such nomination by a substitute nomination. Each delegate shall have one vote, and all votes taken shall be by a roll-call vote. The records of the convention shall be filed with the state executive committee. In the event such a vacancy in party nomination shall occur during the ten days preceding the day of such an election, such vacancy may be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose;
      2. In the case of a public office for which a candidate must qualify with the state executive committee, except a public office to be filled by the vote of the electors of the entire state, the nomination may remain vacant or may be filled at the decision of the state executive committee of the party. The decision whether to fill such vacancy shall be made by the state executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the state executive committee shall be immediately transmitted to the Secretary of State. If the Secretary of State has not been notified of the decision of the state executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the state executive committee has decided not to fill the vacancy. If the state executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the state executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose;
      3. In the case of a public office for which a candidate must qualify with the county executive committee, the nomination may remain vacant or may be filled at the decision of the state executive committee of the party. The state executive committee or a subcommittee thereof may determine on its own whether to fill the vacancy but is authorized, though not required, to seek the recommendation of any of the following persons for the purpose of determining whether to fill the vacancy: the county executive committee, if any; persons from the area who are active in the party; persons who are present or former officials of the party; persons who presently hold political office or have sought political office as candidates of the party; or such other persons as the committee or subcommittee may desire to consult. The decision whether to fill such vacancy shall be made by the state executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the state executive committee shall be immediately transmitted to the county superintendent. If the county superintendent has not been notified of the decision of the state executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the state executive committee has decided not to fill the vacancy. If the state executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the state executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the state executive committee or a subcommittee thereof appointed for that purpose. The state executive committee or a subcommittee thereof may determine on its own who shall fill the vacancy as a substitute nominee but is authorized, though not required, to seek the recommendation of any of the following persons for the purpose of determining the most suitable substitute nomination: the county executive committee, if any; persons from the area who are active in the party; persons who are present or former officials of the party; persons who presently hold political office or have sought political office as candidates of the party; or such other persons as the committee or subcommittee may desire to consult; and
      4. In the case of a public office for which a candidate must qualify with the municipal executive committee, the nomination may remain vacant or may be filled at the decision of the municipal executive committee of the party. The decision whether to fill such vacancy shall be made by the municipal executive committee by 4:00 P.M. on the next business day following the actual knowledge of the death or disqualification of the candidate. The decision of the municipal executive committee shall be immediately transmitted to the municipal superintendent. If the municipal superintendent has not been notified of the decision of the municipal executive committee by 4:30 P.M. on the next business day following the actual knowledge of the vacancy, it shall be conclusively presumed that the municipal executive committee has decided not to fill the vacancy. If the municipal executive committee decides not to fill the vacancy, the nomination shall remain vacant. If the municipal executive committee decides to fill the vacancy, the vacancy shall be filled by a substitute nomination made by the municipal executive committee or a subcommittee thereof appointed for that purpose.
    2. Any vacancy which occurs in any party nomination filled by a primary and which is created by reason of the withdrawal of a candidate 60 or more days prior to the date of the election shall be filled as follows:
      1. By the person seeking nomination in such primary who received the second highest total of votes cast in such primary for that office, provided that such person received not less than 40 percent of the votes cast for that office; or
      2. In the event no person received the vote total required under subparagraph (A) of this paragraph, such vacancy shall be filled in the same manner as provided in subparagraph (A), (B), (C), or (D) of paragraph (1) of this subsection, as appropriate.
    3. Any vacancy which occurs in any party nomination filled by a primary and which is created by reason of the withdrawal of a candidate less than 60 days prior to the date of the election shall not be filled. If the ballots have been printed, the Secretary of State, the county superintendent, or the municipal superintendent may reprint the ballots to omit the name of the withdrawn candidate. All votes cast for the withdrawn candidate shall be void and shall not be counted. Prominent notices shall be posted in all polling places in which the name of the withdrawn candidate appears on the ballot stating that such candidate has withdrawn and that all votes cast for such withdrawn candidate shall be void and shall not be counted.
  1. Any vacancy occurring in any body nomination or party nomination filled by means other than by primary, by reason of the withdrawal, death, or disqualification of any candidate after nomination, may be filled by a substitute nomination made by such committee as is authorized by the rules and regulations of the party or body to make nominations in the event of vacancies on the party or body ticket.
  2. If the withdrawal, death, or disqualification of a candidate after nomination for any public office would at the time of such event result in there being no candidate for that office on the ballot in the general election, then the vacancy shall be filled by a special primary which shall be open only to the party of such deceased, withdrawn, or disqualified candidate and the office shall be filled by a special election as provided in Code Section 21-2-540.
  3. The qualifying fee shall be returned to the candidate in the event such candidate withdraws, dies, or is disqualified prior to the close of the qualifying period; however, after the close of the qualifying period, the qualifying fee shall not be returned to the candidate for any reason including withdrawal, death, or disqualification; provided, however, that, if such disqualification is the result of an error or negligence of the officer with whom such candidate qualified and not the result of any action of the candidate and such error or negligence is verified in writing by the Secretary of State, such fee may be refunded to the candidate.
  4. Upon the making of any such substitute nomination, in the manner prescribed in subsection (b) or (c) of this Code section, it shall be the duty of the chairperson and secretary of the convention or committee making the nomination to file with the Secretary of State or with the superintendent, as the case may be, a nomination certificate which shall be signed by such chairperson and secretary. Every such certificate of nomination shall be sworn to by the chairperson and secretary before an officer qualified to administer oaths.

(Code 1933, § 34-1003, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 871, § 6; Ga. L. 1969, p. 329, §§ 9, 10; Ga. L. 1970, p. 347, § 13; Ga. L. 1978, p. 781, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1985, p. 1430, § 1; Ga. L. 1987, p. 1360, § 7; Ga. L. 1989, p. 643, § 3; Ga. L. 1994, p. 1406, § 3; Ga. L. 1995, p. 408, § 1; Ga. L. 1996, p. 26, § 1; Ga. L. 1997, p. 590, § 10; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 2001, p. 269, § 7; Ga. L. 2005, p. 253, § 16/HB 244; Ga. L. 2008, p. 781, § 7/HB 1112; Ga. L. 2012, p. 995, § 7/SB 92.)

Law reviews.

- For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

Notice of candidate's withdrawal.

- Evidence that the notices that a primary candidate withdrew were conspicuously placed in the polling was sufficient evidence that the notices were substantially in compliance with the requirements of O.C.G.A. § 21-2-134(a)(2) that notices be "conspicuous." Banker v. Cole, 278 Ga. 532, 604 S.E.2d 165 (2004).

When notices required by O.C.G.A. § 21-2-134(a)(2) that a candidate in a primary election withdrew did not state that votes for the withdrawn candidate would not be counted, the notices did not substantially comply with by O.C.G.A. § 21-2-134(a)(2), because both the fact of the candidate's withdrawal and the effect of voting for the withdrawn candidate had to be included in the notice. Banker v. Cole, 278 Ga. 532, 604 S.E.2d 165 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal from primary after qualifying deadline.

- If a qualified candidate withdraws from a primary to accept another appointment after the qualifying deadline, but before the primary is held, the party may not re-open qualifications for candidates in such primary. 1970 Op. Att'y Gen. No. U70-140.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 209 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 181, 182.

ALR.

- Power of political party or its officials to withdraw nominations, 155 A.L.R. 186.

21-2-135. Designation of specific office sought where office has multiple officeholders with same title.

    1. In the case of a public office having multiple officeholders with the same title, each candidate, including write-in candidates, shall designate the specific office he or she is seeking, name the person such candidate is seeking to succeed, and give such other appropriate designation as may be required by the Secretary of State or election superintendent each time such candidate qualifies with his or her party in the case of a primary, files a notice of candidacy in the case of an election, or files a notice of candidacy as a write-in candidate. The designation of the specific office and the name of the person whom a candidate is seeking to succeed in the case of a public office having multiple officeholders shall be entered on the ballot and ballot labels in such manner that in the ensuing primary or election such candidate shall only oppose the other candidate or candidates, if any, who designated the same specific office and the same name.
    2. In the case of a candidate, including a write-in candidate, seeking one of two or more municipal public offices, each having the same title and each being filled at the same election by the vote of the same electors, the applicable municipal charter or ordinance provisions shall govern whether such candidate shall designate the specific office he or she is seeking. If required to designate the specific office, the candidate shall name his or her incumbent or give other appropriate designation as specified in the charter or ordinance. Such designation shall be entered on the ballot and ballot labels in such manner that in the ensuing municipal primary or election such candidate shall only oppose the other candidate or candidates, if any, designating the same specific office.
  1. In the case of the office of judge of a state court, judge of a superior court, Judge of the Court of Appeals, or Justice of the Supreme Court, the name of the person such candidate is seeking to succeed and such other designation as may be required by the Secretary of State or election superintendent shall be included in the title of the office on the ballot in all nonpartisan elections.

(Code 1933, § 34-1002, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Code 1933, § 34-1015, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1983, p. 1190, § 5; Ga. L. 1984, p. 133, § 1; Ga. L. 1991, p. 631, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 52, § 7; Ga. L. 2001, p. 269, § 8.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

JUDICIAL DECISIONS

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Georgia v. United States, 411 U.S. 526, 93 S. Ct. 1702, 36 L. Ed. 2d 472 (1973); Bailey v. Vining, 514 F. Supp. 452 (M.D. Ga. 1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 225, 230.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

21-2-136. Restriction on number of offices for which an individual may be nominated or be a candidate at any one election.

No person shall be nominated, nor shall any person be a candidate in a primary, election, or special election, for more than one of the following public offices to be filled at any one election or special election: Governor, Lieutenant Governor, Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, Commissioner of Labor, United States senator or representative in Congress, Public Service Commissioner, Justice of the Supreme Court, Judge of the Court of Appeals, members of the Senate and House of Representatives of the General Assembly, judge of superior court, district attorney, any elected county officer, and any elected municipal officer.

(Code 1933, § 34-1014, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1984, p. 1, § 1; Ga. L. 1986, p. 855, § 4; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 52, § 8; Ga. L. 2001, p. 240, § 8.)

JUDICIAL DECISIONS

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

OPINIONS OF THE ATTORNEY GENERAL

Application.

- Candidate on ballot in special congressional primary may not be permitted to run at same time in general election for General Assembly. 1982 Op. Att'y Gen. No. U82-30.

Candidate who was on ballot in the August 10, 1982, general primary for state senator, State House of Representatives, or county commissioner may qualify and have that candidate's name placed on ballot in special congressional primary. 1982 Op. Att'y Gen. No. 82-67.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 219, 230.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

21-2-137. Qualifying with two political parties; qualifying as independent or political body candidate and as political party candidate.

No person shall qualify with any political party as a candidate for nomination to any public office when such person has qualified for the same primary with another political party as a candidate for nomination by that party for any public office; nor shall a state, county, or municipal executive committee of any political party certify any person as the candidate of that party when such person has previously qualified as a candidate for nomination for any public office for the same primary with another political party. No person shall file a notice of candidacy as an independent or political body candidate for any public office when such person has qualified for the same office to be filled at the same election with any political party; nor shall any person qualify with any political party when such person has filed a notice of candidacy as an independent or political body candidate for the same office to be filled at the same election.

(Code 1933, § 34-1016, enacted by Ga. L. 1975, p. 686, § 1; Ga. L. 1983, p. 535, § 1; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 255 et seq.

C.J.S.

- 29 C.J.S., Elections, § 236.

ALR.

- Constitutionality, construction, and application of statutes regarding party affiliations or change thereof as affecting eligibility to nomination for public office, 153 A.L.R. 641.

21-2-138. Nonpartisan elections for judicial offices.

The names of all candidates who have qualified with the Secretary of State for the office of judge of a superior court, Judge of the Court of Appeals, or Justice of the Supreme Court of this state and the names of all candidates who have qualified with the election superintendent for the office of judge of a state court shall be placed on the ballot in a nonpartisan election to be held and conducted jointly with the general primary in each even-numbered year. No candidates for any such office shall be nominated by a political party or by a petition as a candidate of a political body or as an independent candidate. Candidates for any such office shall have their names placed on the nonpartisan portion of each ballot by complying with the requirements prescribed in Code Section 21-2-132 specifically related to such nonpartisan candidates and by paying the requisite qualifying fees as prescribed in Code Section 21-2-131. Candidates shall be listed on the official ballot in a nonpartisan election as provided in Code Sections 21-2-284.1 and 21-2-285.1, respectively. Except as otherwise specified in this chapter, the procedures to be employed in conducting the nonpartisan election of judges of state courts, judges of superior courts, Judges of the Court of Appeals, and Justices of the Supreme Court shall conform as nearly as practicable to the procedures governing general elections; and such general election procedures as are necessary to complete this nonpartisan election process shall be adopted in a manner consistent with such nonpartisan elections.

(Code 1933, § 34-1016, enacted by Ga. L. 1975, p. 1251, § 1; Ga. L. 1983, p. 1190, § 6; Ga. L. 1984, p. 133, § 1; Ga. L. 1984, p. 1490, § 7; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 9; Ga. L. 2005, p. 253, § 17/HB 244; Ga. L. 2011, p. 678, § 3/HB 158.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Law reviews.

- For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001). For comment, "Awakening a Slumbering Giant: Georgia's Judicial Selection System After White and Weaver ," see 56 Mercer L. Rev. 1035 (2005).

JUDICIAL DECISIONS

Agreement to change to retention election system unconstitutional.

- In an action challenging Georgia's judicial election system under the Voting Rights Act, 42 U.S.C. § 1973 et seq., and the federal Constitution, a proposed consent decree that would have established retention elections instead of direct elections was rejected because it would have impermissibly decreased the power of the electorate in violation of the constitutional and statutory law of the state. Brooks v. State Bd. of Elections, 848 F. Supp. 1548 (S.D. Ga. 1994), appeal dismissed, 59 F.3d 1114 (11th Cir. 1995).

OPINIONS OF THE ATTORNEY GENERAL

Reelection of Supreme Court Justice appointed to fill vacancy.

- When the Governor appoints to fill a vacancy on the Supreme Court, the appointee must stand for reelection in the nonpartisan judicial primary and also during the next general election in November, which is more than six months after his or her appointment. 1992 Op. Att'y Gen. No. U92-7.

Election of clerks of state court on partisan basis.

- In enacting Ga. Const. 1983, Art. VI, Sec. VII, Para. I and O.C.G.A. §§ 21-2-138 and21-2-139, the General Assembly did not intend to place the election of clerks of state court on a nonpartisan basis unless the General Assembly so provided by special legislation. 1985 Op. Att'y Gen. No. U85-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 255 et seq.

C.J.S.

- 29 C.J.S., Elections, § 236.

21-2-139. Nonpartisan elections authorized; conduct.

  1. Notwithstanding any other provisions of this chapter to the contrary, the General Assembly may provide by local Act for the election in nonpartisan elections of candidates to fill county judicial offices, offices of local boards of education, and offices of consolidated governments which are filled by the vote of the electors of said county or political subdivision. Except as otherwise provided in this Code section, the procedures to be employed in such nonpartisan elections shall conform as nearly as practicable to the procedures governing nonpartisan elections as provided in this chapter. Except as otherwise provided in this Code section, the election procedures established by any existing local law which provides for the nonpartisan election of candidates to fill county offices shall conform to the general procedures governing nonpartisan elections as provided in this chapter, and such nonpartisan elections shall be conducted in accordance with the applicable provisions of this chapter, notwithstanding the provisions of any existing local law. For those offices for which the General Assembly, pursuant to this Code section, provided by local Act for election in nonpartisan primaries and elections, such offices shall no longer require nonpartisan primaries. Such officers shall be elected in nonpartisan elections held and conducted in conjunction with the general primary in even-numbered years in accordance with this chapter without a prior nonpartisan primary. This Code section shall apply to all nonpartisan elections for members of consolidated governments. All nonpartisan elections for members of consolidated governments shall be governed by the provisions of this Code section and shall be considered county elections and not municipal elections for the purposes of this Code section. Nonpartisan elections for municipal offices shall be conducted on the dates provided in the municipal charter.
  2. Either a political party, as defined in this chapter, or a nonpartisan municipal executive committee duly registered with the city clerk may conduct a municipal primary for the purpose of electing its own officials or nominating candidates for municipal elections. Every primary held for such purpose shall be presided over and conducted in the manner prescribed by the rules and regulations of such party or nonpartisan municipal executive committee, not inconsistent with the law and the rules and regulations of the State Election Board; provided, however, that all such primaries must be conducted in such manner as to guarantee the secrecy of the ballot.
  3. Municipalities may provide by their charter or by ordinance that no political party shall conduct primaries for the purpose of nominating candidates for municipal elections; provided, however, that the existing provisions of any charter or ordinance prohibiting primaries by political parties shall not be repealed by this subsection.

(Code 1981, §21-2-139, enacted by Ga. L. 1983, p. 1190, § 7; Ga. L. 1985, p. 496, § 4; Ga. L. 1994, p. 131, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 10; Ga. L. 2005, p. 253, § 18/HB 244; Ga. L. 2011, p. 678, § 4/HB 158; Ga. L. 2012, p. 995, § 9/SB 92; Ga. L. 2018, p. 1112, § 21/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "local boards of education" for "local school boards" in the middle of the first sentence of subsection (a).

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Ga. L. 2012, p. 995, § 45/SB 92, not codified by the General Assembly, provides that: "Section 9 of this Act is not intended by the General Assembly to change the effect of existing law but only to clarify the intent of the General Assembly in enacting the original legislation."

Ga. L. 2012, p. 995, § 46(b)/SB 92, not codified by the General Assembly, provides that: "Section 9 of this Act shall become effective on the first date upon which candidates may begin qualifying for the general primary in 2012; provided, however, that if implementation of Section 9 is not permissible on such date under the federal Voting Rights Act of 1965, as amended, then Section 9 shall become effective on January 1, 2013."

The United States Department of Justice objected to Section 9 (which added the sixth and seventh sentences in subsection (a)) under Section 5 of the Voting Rights Act of 1965, as amended, on December 21, 2012. However, in the case of Howard v. Augusta-Richmond County Commission, Case No. 1:14-cv-00097-JRH-BKE, Unit- ed States District Court for the Southern District of Georgia, Augusta Division, decided May 13, 2014, the court found that, in light of the holding of the United States Supreme Court in Shelby County v. Holden, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013), such objection under Section 5 was unenforceable and Section 9 was effective.

Administrative Rules and Regulations.

- Ballot secrecy, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.01.

Law reviews.

- For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Election of clerks of state court on partisan basis.

- In enacting Ga. Const. 1983, Art. VI, Sec. VII, Para. I and O.C.G.A. §§ 21-2-138 and21-2-139, the General Assembly did not intend to place the election of clerks of state court on a nonpartisan basis unless the General Assembly so provided by special legislation. 1985 Op. Att'y Gen. No. U85-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 223, 224.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

21-2-140. Mandatory drug testing for candidates.

Repealed by Ga. L. 1998, p. 295, § 1, effective January 1, 1999.

Editor's notes.

- This Code section was based on Code 1981, § 21-2-140, enacted by Ga. L. 1990, p. 2015, § 1; Ga. L. 1992, p. 1612, §§ 1-3.

PART 2 P OLITICAL PARTY AND NONPARTISAN PRIMARIES

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions decided under former Code 1933, Title 34 are included in the annotations for this part.

Applicability of state election laws to party primary.

- Whenever a political party holds a primary in this state, it is by law an integral part of the election machinery. Once a decision to hold a primary is made, state statutes take hold and direct every essential step from registration and qualification of voters to the placing of the names of the nominees on the general election ballot. King v. Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), aff'd, 154 F.2d 460 (5th Cir.), cert. denied, 327 U.S. 800, 66 S. Ct. 905, 90 L. Ed. 1025 (1946) (decided under former Code 1933, Title 34).

21-2-150. Date of general primary.

Whenever any political party holds a primary to nominate candidates for public offices to be filled in the ensuing November election, such primary shall be held on the Tuesday of the twenty-fourth week prior to the November general election in each even-numbered year or, in the case of municipalities, on the third Tuesday in July in each odd-numbered year.

(Ga. L. 1953, Jan.-Feb. Sess., p. 244, § 8; Ga. L. 1953, Nov.-Dec. Sess., p. 335, § 2; Ga. L. 1961, p. 432, § 1; Ga. L. 1962, p. 15, § 1; Code 1933, § 34-801, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1971, p. 602, § 1; Ga. L. 1980, p. 1256, § 2; Ga. L. 1983, p. 1190, § 8; Ga. L. 1984, p. 133, § 1; Ga. L. 1989, p. 643, § 4; Ga. L. 1996, p. 101, § 1; Ga. L. 1997, p. 590, § 11; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 11; Ga. L. 2001, Ex. Sess., p. 325, § 6; Ga. L. 2011, p. 535, § 1/HB 302; Ga. L. 2014, p. 1, § 2/HB 310.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Law reviews.

- For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 93 (2014). For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001).

JUDICIAL DECISIONS

Cited in Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 225.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

21-2-151. Conduct of political party primaries.

  1. A political party shall nominate its candidates for public office in a primary. Except for substitute nominations as provided in Code Section 21-2-134 and nomination of presidential electors, all nominees of a political party for public office shall be nominated in the primary preceding the general election in which the candidates' names will be listed on the ballot.
  2. The primary held for such purposes shall be conducted by the superintendent in the same manner as prescribed by law and by rules and regulations of the State Election Board and the superintendent for general elections. Primaries of all political parties shall be conducted jointly.

(Code 1933, § 34-1005, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Code 1933, § 34-1004, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1983, p. 1190, § 9; Ga. L. 1984, p. 133, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 12; Ga. L. 2005, p. 253, § 19/HB 244; Ga. L. 2012, p. 995, § 8/SB 92.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Law reviews.

- For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001).

JUDICIAL DECISIONS

Cited in Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

OPINIONS OF THE ATTORNEY GENERAL

Qualifying fee of unqualified candidate not refundable.

- The qualifying fee of a candidate who, subsequent to the payment of the fee, is held to be unqualified to run for the office may not be refunded to the candidate. 1983 Op. Att'y Gen. No. 83-38.

Limitation on listing party affiliation on ballot.

- A candidate in an election may not list 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.

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

Only the judge of the probate court may call a special primary. 1970 Op. Att'y Gen. No. U70-128.

Reelection of Supreme Court Justice appointed to fill vacancy.

- When the Governor appoints to fill a vacancy on the Supreme Court, the appointee must stand for reelection in the nonpartisan judicial primary and also during the next general election in November, which is more than six months after his or her appointment. 1992 Op. Att'y Gen. No. U92-7.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 225 et seq.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

ALR.

- Constitutionality of statute relating to power of committee or officials of political party, 62 A.L.R. 924.

State court jurisdiction over contest involving primary election for member of Congress, 68 A.L.R.2d 1320.

Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.

21-2-152. Conduct of primaries generally; run-off primary.

  1. Primaries shall be held and conducted in all respects in accordance with this chapter relating to general elections and the provisions of this chapter relating to general elections shall apply thereto, insofar as practicable and not inconsistent with any other provisions of this chapter. All such primaries shall be conducted in each precinct by the poll officers, by the use of the same equipment and facilities, so far as practicable, as are used for such general elections.
  2. A political party, in nominating a candidate for public office in a municipal primary, may also nominate persons to serve as poll officers for such primaries, and the superintendent shall consider such nominations but shall have discretion to appoint poll officers for each polling place in each precinct.
  3. A run-off primary shall be a continuation of the primary and only persons who were entitled to vote in the primary shall be entitled to vote therein; and only those votes cast for the persons designated for the runoff shall be counted in the tabulation and canvass of the votes cast. Any elector who votes in the primary of one party shall not be eligible to vote in a primary runoff of any other party other than a primary runoff of the party in whose primary such elector voted.

(Code 1933, § 34-1005, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Code 1933, § 34-1008, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1982, p. 1512, § 5; Ga. L. 1998, p. 295, § 1; Ga. L. 2011, p. 683, § 3/SB 82.)

JUDICIAL DECISIONS

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

OPINIONS OF THE ATTORNEY GENERAL

Subsection (a) of this section allows for instances where the general election and primary procedures must differ. 1970 Op. Att'y Gen. No. U70-100.

Calling of special primary.

- While the 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.

21-2-153. Qualification of candidates for party nomination in a state or county primary; posting of list of all qualified candidates; filing of affidavit with political party by each qualifying candidate; performance of military service does not create vacancy.

  1. A candidate for any party nomination in a state or county primary may qualify by either of the two following methods:
    1. Payment of a qualifying fee pursuant to Code Section 21-2-131; or
      1. The submission of a pauper's affidavit by any candidate who has filed a qualifying petition as provided for in subsection (a.1) of this Code section, by which the candidate under oath affirms his or her poverty and his or her resulting inability to pay the qualifying fee otherwise required. The form of the affidavit shall be prescribed by the Secretary of State and shall include a financial statement which lists the total income, assets, liabilities, and other relevant financial information of the candidate and shall indicate on its face that the candidate has neither the assets nor the income to pay the qualifying fee otherwise required. The affidavit shall contain an oath that such candidate has neither the assets nor the income to pay the qualifying fee otherwise required. The following warning shall be printed on the affidavit form prepared by the Secretary of State, to wit: "WARNING: Any person knowingly making any false statement on this affidavit commits the offense of false swearing and shall be guilty of a felony." The name of any candidate who subscribes and swears to an oath that such candidate has neither the assets nor the income to pay the qualifying fee otherwise required shall be placed on the ballot by the Secretary of State or election superintendent, as the case may be.
      2. If a candidate seeks to qualify for a county or militia district office, the pauper's affidavit and financial statement shall be presented to the county political party; otherwise, the candidate shall file his or her pauper's affidavit and financial statement with the state political party.

        Each person signing a qualifying petition shall declare therein that he or she is a duly qualified and registered elector of the state entitled to vote in the next election for the filling of the office sought by the candidate supported by the petition and shall add to his or her signature his or her residence address, giving municipality, if any, and county, with street and number, if any. No person shall sign the same petition more than once. Each petition shall support the candidacy of only a single candidate. A signature shall be stricken from the petition when the signer so requests prior to the presentation of the petition to the appropriate officer for filing, but such a request shall be disregarded if made after such presentation. Each sheet shall bear on the bottom or back thereof the affidavit of the circulator of such sheet, setting forth:

        A qualifying petition of a candidate seeking an office which is voted upon state wide shall be signed by a number of voters equal to one-fourth of 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. A qualifying petition of a candidate for any other office shall be signed by a number of voters equal to 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. However, in the case of a candidate seeking an office for which there has never been an election or seeking an office in a newly constituted constituency, the percentage figure shall be computed on the total number of registered voters in the constituency who would have been qualified to vote for such office had the election been held at the last general election and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected;

        (a.1)No candidate shall be authorized to file a pauper's affidavit in lieu of paying the qualifying fee otherwise required by this Code section and Code Section 21-2-131 unless such candidate has filed a qualifying petition which complies with the following requirements:

      3. His or her residence address, giving municipality with street and number, if any;
      4. That each signer manually signed his or her own name with full knowledge of the contents of the qualifying petition;
      5. That each signature on such sheet was signed within 180 days of the last day on which such petition may be filed; and
      6. That, to the best of the affiant's knowledge and belief, the signers are registered electors of this state qualified to sign the petition, that their respective residences are correctly stated in the petition, and that they all reside in the county named in the affidavit;
    2. A qualifying petition shall be in the form and manner determined by the Secretary of State and approved by the State Elections Board;
    3. No qualifying petition shall be circulated prior to 180 days before the last day on which such petition may be filed, and no signature shall be counted unless it was signed within 180 days of the last day for filing the same; and
    4. A qualifying petition shall not be amended or supplemented after its presentation to the appropriate officer for filing.
  2. Unless otherwise provided by law, all candidates for party nomination in a state or county primary shall qualify as such candidates in accordance with the procedural rules of their party; provided, however, that no person shall be prohibited from qualifying for such office if he or she:
    1. Meets the requirements of such procedural rules;
    2. Is eligible to hold the office which he or she seeks;
    3. Is not prohibited from being nominated or elected by provisions of Code Section 21-2-7 or 21-2-8; and
    4. If party rules so require, affirms his or her allegiance to his or her party by signing the following oath:

      "I do hereby swear or affirm my allegiance to the (name of party) Party."

      1. In the case of a general state or county primary, the candidates or their agents shall commence qualifying at 9:00 A.M. on the Monday of the eleventh week immediately prior to the state or county primary and shall cease qualifying at 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays. All qualifying for federal and state offices shall be conducted in the state capitol.
      2. Reserved.
      3. In the case of a special primary for a federal office, the candidate shall qualify no earlier than the date of the call for the special primary and no later than 60 days immediately prior to the date of such special primary, and such qualifying period shall be open for a minimum of two and one-half days. In the case of a special primary for any other office, the candidate shall qualify no earlier than the date of the call for the special primary and no later than 25 days immediately prior to the date of such special primary, and such qualifying period shall be open for a minimum of two and one-half days.
      4. In any case where an incumbent has qualified as a candidate to succeed himself or herself in office but withdraws as a candidate for such office prior to the close of the applicable qualifying period prescribed in this paragraph, qualifying for candidates other than such incumbent shall be reopened at 9:00 A.M. on the Monday next following the close of the preceding qualifying period and shall cease at 5:00 P.M. on the Tuesday immediately following such reopening, notwithstanding the fact that any such days may be legal holidays.
    1. If a political party has not designated at least 14 days immediately prior to the beginning of qualifying a party official in a county with whom the candidates of such party for county elective offices shall qualify, the election superintendent of the county shall qualify candidates on behalf of such party. The election superintendent shall give notice in the legal organ of the county at least three days before the beginning of qualifying giving the dates, times, and location for qualifying candidates on behalf of such political party.
    1. Within two hours after the qualifications have ceased, the county executive committee of each political party shall post at the office of the county election superintendent a list of all candidates who have qualified with such executive committee, and the state executive committee of each political party shall provide a list of all candidates who have qualified with such committee to the office of the Secretary of State. If the election superintendent qualifies the candidates for a political party in accordance with subsection (c) of this Code section, the election superintendent shall post at his or her office a list of all the candidates who have qualified with such superintendent for such political party.
    2. Except as otherwise provided in Code Section 21-2-154, it shall be unlawful for any person to add or remove any candidates from either of the lists provided for in paragraph (1) of this subsection following the posting of such lists unless such candidates have died, withdrawn, or been disqualified. Any person who violates this paragraph shall be guilty of a misdemeanor.
  3. Each candidate for party nomination described in subsection (a) of this Code section shall file an affidavit with the political party at the time of his or her qualifying stating:
    1. His or her full name and the name as the candidate desires it to be listed on the ballot. The surname of the candidate shall be the surname of the candidate as it appears on the candidate's voter registration card. After such name is certified by the political party to the Secretary of State or the election superintendent, the form of such name shall not be changed during the primary and election for which such affidavit is submitted;
    2. His or her residence, with street and number, if any, and his or her post office address;
    3. His or her profession, business, or occupation, if any;
    4. The name of his or her precinct;
    5. That he or she is an elector of the county of his or her residence eligible to vote in the primary election in which he or she is a candidate for nomination;
    6. The name of the office he or she is seeking;
    7. That he or she is eligible to hold such office;
    8. That the candidate has never been convicted and sentenced in any court of competent jurisdiction for fraudulent violation of primary or election laws, malfeasance in office, or felony involving moral turpitude under the laws of this state or any other state or of the United States, or that the candidate's civil rights have been restored and that at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude;
    9. That he or she will not knowingly violate this chapter or rules or regulations adopted under this chapter; and
    10. Any other information as may be determined by the Secretary of State to be necessary to comply with federal and state law.
  4. Candidates for the office of presidential elector or their agents who have been nominated in accordance with the rules of a political party shall qualify beginning at 9:00 A.M. on the Monday of the thirty-fifth week prior to the November general election in the year in which a presidential election shall be held and shall cease qualifying at 12:00 Noon on the Friday immediately following such Monday, notwithstanding the fact that any such days may be legal holidays. All qualifying for the office of presidential elector shall be conducted in the state capitol.
    1. Notwithstanding any provision of law to the contrary, any elected public officer who is performing ordered military duty, as defined in Code Section 38-2-279, shall be eligible for reelection in any primary or general election which may be held to elect a successor for the next term of office, and may qualify in absentia as a candidate for reelection to such office. The performance of ordered military duty shall not create a vacancy in such office during the term for which such public officer was elected.
    2. Where the giving of written notice of candidacy is required, any elected public officer who is performing ordered military duty may deliver such notice by mail, agent, or messenger to the proper elections official. Any other act required by law of a candidate may, during the time such officer is on ordered military duty, be performed by an agent designated in writing by the absent public officer.

(Code 1933, § 34-1006, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1966, p. 501, § 1; Ga. L. 1969, p. 329, § 11; Code 1933, § 34-1005, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1974, p. 4, § 1; Ga. L. 1975, p. 575, § 1; Ga. L. 1976, p. 205, § 1; Ga. L. 1977, p. 1053, § 4; Ga. L. 1978, p. 1004, § 18; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 5; Ga. L. 1983, p. 930, § 4; Ga. L. 1984, p. 1038, § 2; Ga. L. 1985, p. 206, § 1; Ga. L. 1985, p. 496, § 5; Ga. L. 1986, p. 32, § 1; Ga. L. 1987, p. 647, § 2; Ga. L. 1987, p. 1360, § 8; Ga. L. 1989, p. 643, § 5; Ga. L. 1989, p. 903, § 1; Ga. L. 1990, p. 243, § 2; Ga. L. 1992, p. 2510, § 2; Ga. L. 1993, p. 118, § 1; Ga. L. 1993, p. 617, § 5; Ga. L. 1994, p. 1406, §§ 4, 5; Ga. L. 1996, p. 145, § 2; Ga. L. 1997, p. 590, § 12; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 9; Ga. L. 2001, Ex. Sess., p. 325, § 7; Ga. L. 2003, p. 517, §§ 12-14; Ga. L. 2005, p. 253, § 20/HB 244; Ga. L. 2009, p. 311, § 3/HB 156; Ga. L. 2011, p. 535, § 2/HB 302; Ga. L. 2011, p. 683, § 4/SB 82; Ga. L. 2012, p. 995, § 10/SB 92; Ga. L. 2014, p. 1, § 3/HB 310.)

Cross references.

- Persons ineligible to hold public office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

False swearing generally, § 16-10-71.

Penalty for making of false statement in connection with qualifying as candidate for party nomination, § 21-2-565.

Qualifying in absentia for magistrates serving on active duty, § 15-10-20.1.

Editor's notes.

- Ga. L. 1983, p. 930, § 1, not codified by the General Assembly, provided: "It is the intent of this Act to implement certain changes required by Article II, Section I, Paragraph III and Article II, Section II, Paragraph III of the Constitution of the State of Georgia."

Law reviews.

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

JUDICIAL DECISIONS

Sufficiency of indictment for making false statements.

- Indictment for "making false statements in notice of candidacy" was sufficient even though it did not expressly allege that defendant filed an affidavit at the time of defendant's qualifying; the indictment did expressly allege that defendant knowingly and willfully made a false statement about being a resident for one year in the district and defendant's eligibility to hold office in connection with qualifying as a candidate. State v. Kindberg, 211 Ga. App. 117, 438 S.E.2d 116 (1993).

Persons not previously qualified may not run in rerun of contested primary.

- The ordering of a rerun of a primary, after a contest in a race is sustained, is no reason for permitting other persons who were not properly qualified to run in the contested primary to qualify and compete in the rerun. Ingram v. Lott, 238 Ga. 513, 233 S.E.2d 770 (1977).

Sufficiency of evidence for making false statements in filing for candidacy for political office.

- In a case in which defendant appealed a conviction for false swearing, in violation of O.C.G.A. § 16-10-71(a), challenging the sufficiency of the evidence, the state failed to prove that defendant had the requisite criminal intent to support the conviction when defendant signed a declarations of candidacy for county commissioner as set forth in O.C.G.A. §§ 21-2-132 and21-2-153. Pursuant to O.C.G.A. § 17-7-95(c), a judgment imposing a sentence following a plea of nolo contendere was considered a conviction for some purposes; however, such a conviction did not disqualify defendant from holding public office or otherwise deprive defendant of any civil or political rights, and there was no evidence that defendant intended to deceive the election board or the voters, as defendant believed that the 1986 nolo contendere conviction to a charge of aggravated assault was generally known in the county. Spillers v. State, 299 Ga. App. 854, 683 S.E.2d 903 (2009).

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Stanford v. Schmid, 229 Ga. 595, 193 S.E.2d 614 (1972); Johnson v. Fortson, 237 Ga. 367, 227 S.E.2d 392 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Haynes v. Wells, 273 Ga. 106, 538 S.E.2d 430 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Candidate for party primary need not qualify in person.

- Absent a requirement to the contrary in the procedural rules of the candidate's party, a candidate for a party nomination in a primary is not required to qualify in person. 1976 Op. Att'y Gen. No. U76-23.

Authority to refuse to qualify candidate.

- The state and county executive committees of a political party have the authority to refuse to qualify a candidate upon a determination that such candidate does not meet the qualifications for nomination to a public office. 1976 Op. Att'y Gen. No. 76-90.

Withdrawal from primary after qualifying deadline.

- If a qualified candidate withdraws from a primary to accept another appointment after the qualifying deadline, but before the primary is held, the party may not re-open qualifications for candidates in such primary. 1970 Op. Att'y Gen. No. U70-140.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 232, 253, 255.

C.J.S.

- 29 C.J.S., Elections, §§ 208 et seq., 234, 235.

ALR.

- Extent of power of political party, committee, or officer to exclude persons from participating in its primaries as voters or candidates, 70 A.L.R. 1501; 88 A.L.R. 473; 97 A.L.R. 685; 151 A.L.R. 1121.

Constitutionality, construction, and application of statutes regarding party affiliations or change thereof as affecting eligibility to nomination for public office, 153 A.L.R. 641.

21-2-153.1. Qualification of candidates for party nomination in a municipal primary; unopposed candidates; filing of affidavit with political party; posting of list of all qualified candidates.

  1. Unless otherwise provided by law, all candidates for party nomination in a municipal primary shall qualify as such candidates in accordance with the rules of their party. In the case of a general municipal primary, the candidates, or their agents, shall qualify at least 15 but not more than 45 days prior to the date of such primary, and such qualifying period shall be open for a minimum of two and one-half days. In the case of a special municipal primary, the candidates, or their agents, shall qualify at least ten but not more than 30 days prior to the date of such primary, and such qualifying period shall be open for a minimum of two and one-half days. The executive committee or other rule-making body of the party shall fix the qualifying date within the limitations provided in this Code section.
  2. After the expiration of the applicable qualification deadline prescribed in subsection (a) of this Code section, each candidate for nomination to a municipal office, having no opposing candidates within his or her own political party, shall automatically become the nominee of his or her party for such office if the applicable city charter or ordinance does not provide to the contrary. The name of such an unopposed candidate and the title of the nomination he or she is seeking shall not be placed upon the primary ballots or ballot labels. The proper officials of his or her political party shall certify the candidate as the party nominee for the office involved for the purpose of having his or her name placed upon the election ballots or ballot labels. In applying Code Sections 21-2-131 through 21-2-134, such an unopposed municipal candidate shall be deemed to have been nominated in a primary held by his or her political party.
  3. No person shall qualify with any political party as a candidate for nomination to any municipal office when such person has qualified for the same primary with another political party as a candidate for nomination by that party for any municipal office; nor shall a municipal or other appropriate executive committee of a political party certify any person as the candidate of said party when such person has previously qualified as a candidate for nomination for any public office for the same primary with another political party.
  4. Each candidate for party nomination described in subsection (a) of this Code section shall file an affidavit with the political party at the time of his or her qualifying stating:
    1. His or her full name and the name as the candidate desires it to be listed on the ballot. The surname of the candidate shall be the surname of the candidate as it appears on the candidate's voter registration card. After such name is submitted by the candidate to the political party, the form of such name shall not be changed during the primary and election for which such affidavit is submitted;
    2. His or her residence, with street and number, if any, and his or her post office address;
    3. His or her profession, business, or occupation, if any;
    4. The name of his or her precinct;
    5. That he or she is an elector of the municipality of his or her residence and is eligible to vote in the primary election in which he or she is a candidate for nomination;
    6. The name of the office he or she is seeking;
    7. That he or she is eligible to hold such office;
    8. That he or she has never been convicted and sentenced in any court of competent jurisdiction for fraudulent violation of primary or election laws, malfeasance in office, or felony involving moral turpitude under the laws of this state or any other state or of the United States, or that his or her civil rights have been restored; and
    9. That he or she will not knowingly violate this chapter or any rules and regulations adopted under this chapter.
  5. Within two hours after the qualifications have ceased, the municipal executive committee of each political party shall post a list of all candidates who have qualified with such committee at city hall.

(Code 1981, §21-2-153.1, enacted by Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 10; Ga. L. 2005, p. 253, § 21/HB 244.)

Cross references.

- Persons ineligible to hold public office, Ga. Const. 1983, Art. II, Sec. II, Para. III.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-906 are included in the annotations for this Code section.

If all candidates are unopposed, opening of polls unnecessary.

- It is not necessary to open the polls when candidates have all been automatically nominated prior to any primary pursuant to the provisions of subsection (b) of former Code 1933, § 34A-906. 1968 Op. Att'y Gen. No. 68-321 (decided under former Code 1933, § 34A-906).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 236, 250 et seq.

C.J.S.

- 29 C.J.S., Elections, § 205 et seq.

21-2-154. Certification of political party candidates.

  1. At or before 12:00 Noon on the third day after the deadline for qualifying, the county executive committee of each political party shall certify to the superintendent and the state executive committee of each political party shall certify to the Secretary of State, on forms prescribed by the Secretary of State, all those candidates who have qualified with such committee for the succeeding primary election. Such certification shall be accompanied by the appropriate amount of the qualifying fees paid by such candidates as prescribed in paragraph (1) or (2) of subsection (c) of Code Section 21-2-131 and a copy of the declaration of candidacy and affidavit of each such candidate. Such certification shall not be accepted if the political party has not registered with the Secretary of State as required in Article 3 of this chapter. When the election superintendent qualifies candidates on behalf of a political party pursuant to subsection (c) of Code Section 21-2-153, the election superintendent shall certify at or before 12:00 Noon on the third day after the deadline for qualifying, on forms provided by the Secretary of State, all those candidates of such political party who qualified with the election superintendent.
  2. Any candidate whose name does not appear on the list of candidates posted by a county executive committee or the state executive committee pursuant to subsection (d) of Code Section 21-2-153 shall not be certified under this Code section; provided, however, that the name of a candidate who has properly qualified whose name has been left off of the list of candidates through inadvertence or clerical error may be placed upon such list upon the filing of an affidavit by the county executive committee or the state executive committee, as appropriate, attesting to such inadvertence or error. The county executive committee of each political party shall attach to its certification a copy of the affidavits required by paragraph (2) of subsection (b) of Code Section 15-6-50, paragraph (2) of subsection (a) of Code Section 15-9-2, subparagraph (c)(2)(A) of Code Section 15-16-1, paragraph (2) of subsection (b) of Code Section 45-16-1, and paragraph (2) of subsection (b) of Code Section 48-5-210.

(Code 1933, § 34-1006, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1985, p. 496, § 6; Ga. L. 1989, p. 643, § 6; Ga. L. 1989, p. 903, § 2; Ga. L. 1989, p. 1091, § 5; Ga. L. 1990, p. 243, § 3; Ga. L. 1994, p. 96, § 1; Ga. L. 1997, p. 590, § 13; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 11.)

JUDICIAL DECISIONS

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Stanford v. Schmid, 229 Ga. 595, 193 S.E.2d 614 (1972); Stoner v. Fortson, 359 F. Supp. 579 (N.D. Ga. 1972); O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, § 239 et seq.

21-2-155. Reopening of qualification for office in event of candidate's death or withdrawal of incumbent who qualified as candidate prior to political party primary.

In the event of the death of a candidate or the withdrawal of an incumbent who qualified as a candidate to succeed himself or herself in office, either of which occurs after the close of qualifying for candidates for such office but prior to the date of a political party primary, the state executive committee or other committee of the party authorized by party rule or, in the case of a municipal election, the municipal executive committee may reopen qualification for the office sought by the deceased or withdrawn candidate for a period of not less than one nor more than three days.

(Code 1933, § 34-1007, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1983, p. 1190, § 10; Ga. L. 1985, p. 1430, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 13; Ga. L. 2012, p. 995, § 11/SB 92.)

Editor's notes.

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Law reviews.

- For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Qualifications not reopened after withdrawal of candidate.

- If a qualified candidate withdraws from a primary to accept another appointment after the qualifying deadline, but before the primary is held, the party may not reopen qualifications for candidates in such primary. 1970 Op. Att'y Gen. No. U70-140.

Reopening where other candidates remain in contention.

- Upon the death of a candidate prior to the date of a political primary, the state executive committee or other authorized committee of a party may reopen qualification for a period of not less than one nor more than three days, even though there may be other candidates remaining in contention for the office. 1990 Op. Att'y Gen. No. U90-13.

21-2-156. Payment of primary expenses.

  1. The expenses of a primary shall be paid by the respective county, except that the expenses of municipal primaries shall be governed by subsections (b) and (c) of this Code section, and forms listed under paragraph (5) of Code Section 21-2-50 shall be furnished upon request by the Secretary of State.
  2. The expenses of a municipal primary shall be borne by the political party holding such primary except as provided in this subsection and subsection (c) of this Code section, and except that the expenses of providing polling places on public premises and electors lists shall be paid by the respective municipalities.
  3. The governing authority of each municipality may in its discretion authorize the payment by the municipality of any or all primary expenses other than those required by subsection (b) of this Code section to be paid by the municipality. This authorization of payment by the municipality of other primary expenses shall extend only to the expenses of primaries conducted by political parties which meet the definition of a "political party" contained in paragraph (25) of Code Section 21-2-2. Such additional expenditures as a municipal governing authority elects to make under this subsection are declared to be for a public purpose.

(Code 1933, § 34-1009, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 13; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Cited in Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

OPINIONS OF THE ATTORNEY GENERAL

Rejection of exorbitant bill for election expenses.

- A county governing authority may reject a bill for expenses submitted by a probate judge for the conduct of an election in the event the county governing authority determines such bill to be exorbitant; however, the county governing authority must pay the expenses of a special primary even though the need for the special primary arose solely as a result of an error on the part of the probate judge. 1978 Op. Att'y Gen. No. U78-44.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 159.

21-2-157. Municipal nonpartisan primary; qualifying as a candidate; payment of expenses.

  1. The governing authority of any municipality may call and hold a nonpartisan primary for the purpose of nominating candidates to seek municipal office in a subsequent election. If held, such a nonpartisan primary shall be held at least 50 but not more than 60 days prior to the date of the election for which nominations are to be made; and the call for such primary shall be publicly issued at least 60 days prior to the date of holding the primary. To the extent practicable, the provisions of this chapter which apply to the preparation for and conduct of primaries of political parties shall also apply to the preparation for and conduct of municipal nonpartisan primaries.
  2. Each candidate for nomination to an office in a nonpartisan primary shall qualify as such candidate by personally, or by his or her duly authorized agent, filing notice of his or her candidacy in the office of the superintendent of his or her municipality at least 45 days prior to the date of the primary, in accordance with the provisions of the charter and ordinances of the municipality not inconsistent with the requirements of this chapter.
  3. The expenses of a municipal nonpartisan primary may be paid by the municipality calling and holding such primary; provided, however, that the expenses of providing polling places on public premises and electors lists shall be paid by the municipality.

(Code 1981, §21-2-157, enacted by Ga. L. 1998, p. 295, § 1.)

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, § 183-1-8-.01.

21-2-158. Unopposed candidate failing to receive a single vote.

In any general primary where an unopposed candidate is seeking party nomination for a public office, where such candidate's name appears on the primary ballot but such candidate fails to receive a single vote, such candidate shall not be nominated for such public office and such party shall not have a candidate for that public office on the ballot in the ensuing general election.

(Code 1981, §21-2-158, enacted by Ga. L. 2001, Ex. Sess., p. 325, § 4.)

PART 3 N OMINATION AND QUALIFICATION OF INDEPENDENT CANDIDATES, CANDIDATES OF POLITICAL BODIES, AND PRESIDENTIAL ELECTORS

21-2-170. Nomination of candidates by petition; form of petition; signatures; limitations as to circulation and amendment of petitions; listing of such candidates on ballots; charter or ordinance authorization.

  1. In addition to the party nominations made at primaries, nominations of candidates for public office other than municipal office may be made by nomination petitions signed by electors and filed in the manner provided in this Code section, and such nomination by petition may also be made for municipal public office if provided for by the municipality's charter or by municipal ordinance. Such petition shall be in the form prescribed by the officers with whom they are filed, and no forms other than the ones so prescribed shall be used for such purposes, but such petitions shall provide sufficient space for the printing of the elector's name as well as for his or her signature. In addition to the other requirements provided for in this Code section, each elector signing a nomination petition shall also print his or her name thereon.
  2. A nomination petition of a candidate seeking an office which is voted upon state wide shall be signed by a number of voters equal to 1 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. A nomination petition of a candidate for any other office shall be signed by a number of voters equal to 5 percent of the total number of registered voters eligible to vote in the last election for the filling of the office the candidate is seeking and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected. However, in the case of a candidate seeking an office for which there has never been an election or seeking an office in a newly constituted constituency, the percentage figure shall be computed on the total number of registered voters in the constituency who would have been qualified to vote for such office had the election been held at the last general election and the signers of such petition shall be registered and eligible to vote in the election at which such candidate seeks to be elected.
  3. Each person signing a nomination petition shall declare therein that he or she is a duly qualified and registered elector of the state, county, or municipality entitled to vote in the next election for the filling of the office sought by the candidate supported by the petition and shall add to his or her signature his or her residence address, giving municipality, if any, and county, with street and number, if any, and be urged to add the person's date of birth which shall be used for verification purposes. No person shall sign the same petition more than once. Each petition shall support the candidacy of only a single candidate, except any political body seeking to have the names of its candidates for the offices of presidential electors placed upon the ballot through nomination petitions shall not compile a separate petition for each candidate for such office, but such political body shall compile its petitions so that the entire slate of candidates of such body for such office shall be listed together on the same petition. A signature shall be stricken from the petition when the signer so requests prior to the presentation of the petition to the appropriate officer for filing, but such a request shall be disregarded if made after such presentation.
  4. A nomination petition shall be on one or more sheets of uniform size and different sheets must be used by signers resident in different counties or municipalities. The upper portion of each sheet, prior to being signed by any petitioner, shall bear the name and title of the officer with whom the petition will be filed, the name of the candidate to be supported by the petition, his or her profession, business, or occupation, if any, his or her place of residence with street and number, if any, the name of the office he or she is seeking, his or her political body affiliation, if any, and the name and date of the election in which the candidate is seeking election. If more than one sheet is used, they shall be bound together when offered for filing if they are intended to constitute one nomination petition, and each sheet shall be numbered consecutively, beginning with number one, at the foot of each page. Each sheet shall bear on the bottom or back thereof the affidavit of the circulator of such sheet, which affidavit must be subscribed and sworn to by such circulator before a notary public and shall set forth:
    1. His or her residence address, giving municipality with street and number, if any;
    2. That each signer manually signed his or her own name with full knowledge of the contents of the nomination petition;
    3. That each signature on such sheet was signed within 180 days of the last day on which such petition may be filed; and
    4. That, to the best of the affiant's knowledge and belief, the signers are registered electors of the state qualified to sign the petition, that their respective residences are correctly stated in the petition, and that they all reside in the county or municipality named in the affidavit.

      No notary public may sign the petition as an elector or serve as a circulator of any petition which he or she notarized. Any and all sheets of a petition that have the circulator's affidavit notarized by a notary public who also served as a circulator of one or more sheets of the petition or who signed one of the sheets of the petition as an elector shall be disqualified and rejected.

  5. No nomination petition shall be circulated prior to 180 days before the last day on which such petition may be filed, and no signature shall be counted unless it was signed within 180 days of the last day for filing the same.
  6. A nomination petition shall not be amended or supplemented after its presentation to the appropriate officer for filing.
  7. Only those candidates whose petitions are accompanied by a certificate sworn to by the chairperson and secretary of a political body duly registered with the Secretary of State as required by Code Section 21-2-110, stating that the named candidate is the nominee of that political body by virtue of being nominated in a convention, as prescribed in Code Section 21-2-172, shall be listed on the ballot under the name of the political body. All petition candidates not so designated as the nominee of a political body shall be listed on the ballot in the independent column.
  8. Notwithstanding the provisions of this Code section, candidates for municipal offices may be nominated by petitions as provided for in this Code section only if the municipality authorizes such nominations by petitions in its charter or by ordinance.

(Ga. L. 1922, p. 97, § 3; Code 1933, § 34-1904; Ga. L. 1943, p. 292, § 1; Ga. L. 1962, p. 618, § 1; Code 1933, § 34-1010, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 257, § 1; Ga. L. 1968, p. 871, § 7; Ga. L. 1970, p. 347, § 13; Ga. L. 1974, p. 4, § 3; Ga. L. 1975, p. 861, § 1; Ga. L. 1979, p. 616, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1986, p. 890, § 3; Ga. L. 1987, p. 34, § 1; Ga. L. 1990, p. 243, § 4; Ga. L. 1991, p. 133, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 23, § 2; Ga. L. 2001, p. 240, § 12.)

JUDICIAL DECISIONS

Percentage requirement not unconstitutional.

- As a matter of law, Georgia's requirement of five percent of the signatures of eligible voters on nominating petitions is neither unreasonable nor does it constitute invidious, intentional, or purposeful discrimination. Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970), aff'd sub nom., Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Georgia's five percent petition requirement does not violate the United States Constitution. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Georgia's requirement under O.C.G.A. § 21-2-170(b) that a candidate for federal office could appear on an election ballot if the candidate obtained signatures in a nominating petition from at least five percent of the registered voters was not a substantive qualification, but a permissible procedural regulation of the manner in which candidates could obtain ballot placement; therefore, the requirement did not violate the Qualifications Clause of the United States Constitution. Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002), cert. denied, 538 U.S. 908, 123 S. Ct. 1500, 155 L. Ed. 2d 229 (2003).

Preclearance of 1986 amendments.

- Plaintiff political body claimed that expecting it to begin a signature drive with the possibility that the 1986 amendments to this title might not be precleared and therefore the possibility that it would have to obtain 2.5 percent of the eligible voters' signatures instead of 1 percent "demands politically absurd behavior by movants," and was unconstitutionally burdensome was meritless since the convention requirement and the notice of candidacy requirement were not in doubt. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986). See also notes to §§ 21-2-130,21-2-132, and21-2-187.

Georgia imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Rights of independent candidates and small or newly formed political organizations generally.

- So far as the election laws of this state are concerned, independent candidates and members of small or newly formed political organizations are wholly free to associate, to proselytize, to speak, to write, and to organize campaigns for any school of thought they wish. They may confine themselves to an appeal for write-in votes. Or they may seek, over a six-month period, the signatures of five percent of the eligible electorate for the office in question. If they choose the latter course, the way is open for this state imposes no suffocating restrictions whatever upon the free circulation of nominating petitions. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Signing more than one petition.

- A voter may sign a petition even though the voter has signed others. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971).

Signer need not state intention to vote for that candidate.

- Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Signers may participate in primaries.

- A person who has previously voted in a party primary is fully eligible to sign a petition. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

A voter who has signed the petition of a nonparty candidate is free thereafter to participate in a party primary. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Persons not registered at time of previous election may sign.

- A person who was not even registered at the time of the previous election is fully eligible to sign the nominating petition. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

No signature on a nominating petition need be notarized. Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Circulator and signer of petition may not notarize affidavits.

- A notary who circulated part of a nominating petition and also signed the petition was disqualified from notarizing circulators' affidavits on the petition and it was proper to disqualify those pages with affidavits notarized by such person. Poppell v. Lanier, 264 Ga. App. 473, 448 S.E.2d 194 (1994).

Lack of notarization.

- County board of election (BOE) members were entitled to qualified immunity in their individual capacities against a candidate's 42 U.S.C. § 1983 claims for the BOE's challenge to the candidate's nomination petition because a reasonable official would not have believed that compliance with the requirements of O.C.G.A. § 21-2-171 in response to the facial deficiency of the candidate's petition constituted an unlawful action in violation of the candidate's rights; the petition did not comply with O.C.G.A. § 21-2-170 because it lacked the necessary notarization, rendering it facially defective, and given this defect, § 21-2-171 required the BOE to disregard the non-conforming pages of the petition and authorized it to hold a hearing in connection therewith. Johnson v. Randolph County, 301 Ga. App. 265, 687 S.E.2d 223 (2009).

Lawsuit seeking name placed on ballot properly dismissed.

- Trial court properly dismissed a nominee's lawsuit seeking to have the nominee's name placed upon the ballot for the 2016 general election as an independent candidate for President of the United States because the notices of candidacy were submitted 11 days after the deadline set forth in O.C.G.A. § 21-2-132(d)(1) and the nominee failed to have enough signatures verified, thus, the nominee was not entitled to have the nominee's name placed on the ballot. De La Fuente v. Kemp, 300 Ga. 79, 793 S.E.2d 89 (2016).

Write-in votes.

- The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d) (see now subsections (d) and (e)),21-2-170(b) and (g),21-2-171(a),21-2-172, and21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a political body printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the voter's choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Cited in Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985); Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 34A-910 are included in the annotations for this Code section.

Purpose of this section is to prevent persons with little or no following encumbering the official ballot. 1948-49 Op. Att'y Gen. p. 157.

Nominating petition is necessary only if the municipality's charter or ordinance so requires it, and it must be in the form prescribed by the law. 1971 Op. Att'y Gen. No. 71-185 (decided under former Code 1933, § 34A-910).

Signature must be same as on voter registration list.

- It is essential to the validity of a signature that it appear on the petition in a manner identical to that in which it appears on the voter registration list. 1962 Op. Att'y Gen. p. 205 (decided under former Code 1933, § 34A-910).

Invalid signature does not invalidate entire petition.

- The overwhelming weight of authority seems to be that the invalidity of one or more signatures on a petition does not invalidate all others not subject to such infirmity. Similarly, fraudulent signatures do not invalidate the entire petition where there is no charge that the candidate personally was in any way implicated in such fraud. 1962 Op. Att'y Gen. p. 205 (decided under former Code 1933, § 34A-910).

"Last election."

- The language, "in the last election for the filling of the office the candidate is seeking," contained in O.C.G.A. § 21-2-170(b), refers to the last election for the particular office sought by the candidate. 1990 Op. Att'y Gen. No. 90-6.

Petition form may not be validly altered.

- The form prescribed by the Secretary of State for the nominating petition of a candidate seeking to have the candidate's name placed on the general election ballot cannot be altered by the candidate, and if altered sheets are included in the petition, the altered sheets would be eliminated as invalid without affecting the validity of the petition, provided the petition was otherwise valid. 1976 Op. Att'y Gen. No. U76-22.

Valid signatures within 180 days of filing to be counted.

- All signatures, otherwise proper, on a nomination petition signed thereon within 180 days of the last day for filing the petition, should be counted. 1965-66 Op. Att'y Gen. No. 66-204 (decided under former Code 1933, § 34A-910).

Deletion of names where petition contains names of electors from more than one county.

- Where a given sheet contained the names of eight Bibb County electors and two Jones County electors, it was permissible for the party to delete the names of the Jones County electors. Although former Code 1933, § 34-1011 (see now O.C.G.A. § 21-2-171(a)) provided that a petition must not contain "material alterations" without the consent of the signers, a deletion of a name would not violate that section, as it was obviously intended to prevent changes in names or addresses to keep improper signatures on a petition. 1965-66 Op. Att'y Gen. No. 66-56 (decided under former Code 1933, § 34A-910).

Number of signatures needed when election district altered.

- The General Assembly intends that when an election district has been newly created, or its boundaries changed, the number of signatures needed would be based on the number of electors in the new or altered district who were registered to vote in the last election. 1968 Op. Att'y Gen. No. 68-231 (decided under former Code 1933, § 34A-910).

Presidential electors for independent candidate.

- An independent candidate for President of the United States may have the names of the candidate's presidential electors placed on the general election ballot by the petition method; and the entire slate of presidential elector candidates for such individual shall be listed together on the same petition. 1979 Op. Att'y Gen. No. 79-38.

Each sheet of a nomination petition should be numbered consecutively, beginning with number one, at the foot of each page; regardless of any control numbers which are used in the obtaining of signatures, the pages should be renumbered when submitted to the Secretary of State. 1965-66 Op. Att'y Gen. No. 66-56 (decided under former Code 1933, § 34A-910).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 239 et seq.

C.J.S.

- 29 C.J.S., Elections, § 193 et seq.

ALR.

- Nonregistration as affecting one's qualification as signer of petition for special election, submission of proposition, or nominating petition, 100 A.L.R. 1308.

Constitutionality of election laws as regards nominations by petition or otherwise than by statutory convention or primary election, 146 A.L.R. 668.

Construction and application of Elections Clause of United States Constitution, U.S. Const. Art. I, § 4, cl.1, and state constitutional provisions concerning congressional elections, 34 A.L.R.6th 643.

Validity, construction, and application of state statutes regulating or proscribing payment in connection with gathering signatures on nominating petitions for public office or initiative petitions, 40 A.L.R.6th 317.

21-2-171. Examination of petitions; basis for grant or denial of filing; review and appeal of denial.

  1. When any nomination petition is presented in the office of the Secretary of State or of any superintendent for filing within the period limited by this chapter, it shall be the duty of such officer to examine the same to the extent necessary to determine if it complies with the law. No candidate shall be qualified if such nomination petition:
    1. Contains material errors or defects apparent on the face thereof;
    2. Contains material alterations made after signing without the consent of the signers; or
    3. Does not contain a sufficient number of signatures of registered voters as required by law.

      The Secretary of State or any superintendent shall review the petition for compliance with the provisions of Code Section 21-2-170 and shall disregard any pages or signatures that are not in conformance with the provisions of that Code section. The Secretary of State or any superintendent may question the genuineness of any signature appearing on a petition or the qualification of any signer whose signature appears thereon and, if he or she shall thereupon find that any such signature is improper, such signature shall be disregarded in determining whether the petition contains a sufficient number of signatures as required by law. The invalidity of any sheet of a nomination petition shall not affect the validity of such petition if a sufficient petition remains after eliminating such invalid sheet.

  2. Upon the filing of a nomination petition, the officer with whom it is filed shall begin expeditiously to examine the petition to determine if it complies with the law. During such examination the officer shall have the right to summon by subpoena on two days' notice and interrogate under oath the candidate named in the petition, any person who signed the petition, any person who executed or witnessed any affidavit or certificate accompanying the petition, or any other person who may have knowledge of any matter relevant to the examination. Such officer shall also have the right to subpoena on two days' notice any record relevant to the examination. No witness shall be compelled to attend if he or she should reside more than 100 miles from the place of hearing by the nearest practical route; provided, however, that the officer may compel the taking of his or her testimony by deposition in the county of the residence of the witness. The sheriff of any county, or his or her deputy, or agent of the officer shall serve all processes issued by the officer, or the same may be served by United States registered or certified mail or statutory overnight delivery; and the production of an appropriate return receipt issued by the United States post office or commercial delivery firm shall constitute prima-facie evidence of such service. In case of the refusal of any person subpoenaed to attend or testify, such fact shall be reported forthwith by the officer to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify; and, on failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as now allowed and paid witnesses in civil actions in the superior court. The officer shall not be bound by technical rules of evidence in hearing such testimony. The testimony presented shall be stenographically recorded and made a part of the record of the examination. If the petition complies with the law, it shall be granted and the candidate named therein shall be notified in writing. If the petition fails to comply with the law, it shall be denied and the candidate named therein shall be notified of the cause for such denial by letter directed to his or her last known address. In neither case shall the petition be returned to the candidate.
  3. The decision of the officer denying a nomination petition may be reviewed by the superior court of the county containing the office of such officer upon an application for a writ of mandamus to compel the granting of such petition. The application for such writ of mandamus shall be made within five days of the time when the petitioner is notified of such decision. Upon the application being made, a judge of such court shall fix a time and place for hearing the matter in dispute as soon as practicable; and notice thereof shall be served with a copy of such application upon the officer with whom the nomination petition was filed and upon the petitioner. At the time so fixed the court, or any judge thereof assigned for the purpose, shall hear the case. If after such hearing the said court shall find that the decision of the officer was erroneous, it shall issue its mandate to the officer to correct his or her decision and to grant the nomination petition. From any decision of the superior court an appeal may be taken within five days after the entry thereof. It shall be the duty of the appellate court to fix the hearing and to announce its decision within such period of time as will permit the name of the candidate affected by the court's decision to be printed on the ballot if the court should so determine.

(Code 1933, § 34-1011, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 13; Ga. L. 1997, p. 590, § 14; Ga. L. 1998, p. 295, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 20, § 1; Ga. L. 2010, p. 914, § 6/HB 540; Ga. L. 2016, p. 883, § 3-6/HB 927.)

Cross references.

- Witness fees and mileage, § 24-13-25.

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, made the Act applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews.

- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-904 and former § 21-3-90 are included in the annotations for this Code section.

Prohibiting candidates' names from ballot because they cannot post money.

- To prohibit candidates from getting their names on the ballot solely because they cannot post a certain amount of money is illegal and unconstitutional. Where the candidate can get the candidate's name on the ballot in some other fashion, either by a nominating petition, primary election, or pauper's affidavit, such unconstitutionality does not attach. Jenness v. Little, 306 F. Supp. 925 (N.D. Ga. 1969) (decided under former Code 1933, § 34A-904).

Lack of notarization.

- County board of election (BOE) members were entitled to qualified immunity in their individual capacities against a candidate's 42 U.S.C. § 1983 claims for the BOE's challenge to the candidate's nomination petition because a reasonable official would not have believed that compliance with the requirements of O.C.G.A. § 21-2-171 in response to the facial deficiency of the candidate's petition constituted an unlawful action in violation of the candidate's rights; the petition did not comply with O.C.G.A. § 21-2-170 because it lacked the necessary notarization, rendering it facially defective, and given this defect, § 21-2-171 required the BOE to disregard the non-conforming pages of the petition and authorized it to hold a hearing in connection therewith. Johnson v. Randolph County, 301 Ga. App. 265, 687 S.E.2d 223 (2009).

Lawsuit seeking name placed on ballot properly dismissed.

- Trial court properly dismissed a nominee's lawsuit seeking to have the nominee's name placed upon the ballot for the 2016 general election as an independent candidate for President of the United States because the notices of candidacy were submitted 11 days after the deadline set forth in O.C.G.A. § 21-2-132(d)(1) and the nominee failed to have enough signatures verified, thus, the nominee was not entitled to have the nominee's name placed on the ballot. De La Fuente v. Kemp, 300 Ga. 79, 793 S.E.2d 89 (2016).

For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Write-in votes.

- The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d) (see now (d) and (e)),21-2-170(b) and (g),21-2-171(a),21-2-172, and21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a political body printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the voter's choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Appeal of denial of nomination petition was moot.

- Regardless of the merits or lack thereof of the candidate's claims that the candidate's nomination petition was miscounted, improperly counted, or that there were irregularities in the process leading to the unlawful decision to keep the candidate off the November ballot, the candidate's present appeal was moot because the general election had already taken place. Bodkin v. Bolia, 285 Ga. 758, 684 S.E.2d 241 (2009).

Cited in Johnson v. Fortson, 237 Ga. 367, 227 S.E.2d 392 (1976); McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991); Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-904 and former Code Section 21-3-90 are included in the annotations for this Code section.

Employment of assistants in checking petitions.

- For duties which require no discretion or judgment, the Secretary of State or judges of a probate court may legally employ certified public accountants or other persons on a temporary basis to assist in checking nomination petitions. 1965-66 Op. Att'y Gen. No. 66-159 (decided under former Code 1933, § 34A-904).

Deletion of names from petition with names of two counties' electors not "material alteration".

- Where a given sheet contained the names of eight Bibb County electors and two Jones County electors, it was permissible for the party to delete the names of the Jones County electors. Although a petition must not contain "material alterations" without the consent of the signers, a deletion of a name would not violate those provisions, as it was obviously intended to prevent changes in names or addresses to keep improper signatures on a petition. 1965-66 Op. Att'y Gen. No. 66-56 (decided under former Code 1933, § 34A-904).

Proper signatures within 180 days of filing to be counted.

- All signatures, otherwise proper, on a nomination petition signed thereon within 180 days of the last day for filing the petition, should be counted. 1965-66 Op. Att'y Gen. No. 66-204 (decided under former Code 1933, § 34A-904).

Qualification fees.

- Former Code 1933, § 34A-904 authorized the city's governing authority to charge qualification fees to those running for office in a general city election. 1969 Op. Att'y Gen. No. 69-330 (decided under former Code 1933, § 34A-904).

Altered sheets eliminated without affecting validity of remainder of petition.

- The form prescribed by the Secretary of State for the nominating petition of a candidate seeking to have the candidate's name placed on the general election ballot cannot be altered by the candidate, and if altered sheets are included in the petition, the altered sheets would be eliminated as invalid without affecting the validity of the petition, provided the petition were otherwise valid. 1976 Op. Att'y Gen. No. U76-22.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 239 et seq.

C.J.S.

- 29 C.J.S., Elections, § 193 et seq.

ALR.

- Nonregistration as affecting one's qualification as signer of petition for special election, submission of proposition, or nominating petition, 100 A.L.R. 1308.

Challenges to write-in ballots and certification of write-in candidates, 75 A.L.R.6th 311.

21-2-172. Nomination of presidential electors and candidates of political bodies by convention.

  1. Any political party desiring to nominate its presidential electors by convention, any political body desiring to nominate its candidates qualifying with petitions by convention, and any political body desiring to nominate its candidates for state-wide public office by convention by virtue of qualifying under Code Section 21-2-180 shall, through its state executive committee, adopt rules and regulations in conformity with this Code section governing the holding of such conventions for the nomination of candidates for any state, district, or county office. Such rules and regulations shall be filed with the Secretary of State, and no amendment to such rules and regulations shall be effective unless filed with the Secretary of State at least 30 days prior to the date of such convention. The state party or body chairperson of such political party or body and its secretary shall accompany the filing of such rules and regulations with their certificate certifying that the rules and regulations therein filed are a true and correct copy of the rules and regulations of the party pertaining to the nomination of candidates by the convention method.
  2. The Secretary of State shall examine all such rules and all amendments thereto as shall be filed with him or her within 15 days after receipt thereof. If, in the opinion of the Secretary of State, any rule or regulation, or any part thereof, does not meet the requirements prescribed by this Code section, he or she shall notify the state party or body chairperson and secretary of such party or body in writing, stating therein his or her reasons for rejecting such rule or regulation. If, in the judgment of the Secretary of State, such rules and regulations meet the requirements prescribed by this Code section, they shall be approved.
  3. The Secretary of State shall not approve any such rules or regulations unless they provide:
    1. That a notice of the proposed date for the holding of any such convention must be published in a newspaper having a general circulation within the area to be affected at least ten days prior to the date of any such convention. Such notice shall also state the purpose for which the convention has been called;
    2. That delegates to the convention shall be certified pursuant to appropriate party or body rules by the proper party or body officials;
    3. That delegates to the convention shall be apportioned in such manner as will properly reflect the number of electors residing within the political subdivisions or areas affected in accordance with the last United States decennial census, or apportioned according to the number of votes received by the party's candidate for the office of President of the United States in the last presidential election in the areas concerned, or apportioned according to the number of votes received by the party's candidate for the office of Governor of Georgia in the last gubernatorial election in the areas concerned;
    4. In the event that more than one county is involved, each county shall have at least one delegate to the convention, and such additional delegates as shall be allotted thereto shall be apportioned according to paragraph (3) of this subsection; and
    5. That a certified copy of the minutes of the convention, attested to by the chairperson and secretary of the convention, must be filed by the nominee with his or her nomination petition.
  4. Any candidate nominated by convention shall be required to pay to the person with whom he or she files his or her notice of candidacy the same qualifying fee or the same pauper's affidavit and qualifying petition as that required of other candidates for the same office.
  5. A convention for the purpose of nominating candidates shall be held at least 150 days prior to the date on which the general election is conducted.
  6. Nothing contained within this Code section shall be construed so as to apply to the nomination of substitute candidates by convention pursuant to Code Section 21-2-134 or to the nomination of candidates in special elections.

(Code 1933, § 34-1012, enacted by Ga. L. 1970, p. 347, § 13; Ga. L. 1986, p. 890, § 4; Ga. L. 1987, p. 34, § 1; Ga. L. 1987, p. 647, § 3; Ga. L. 1989, p. 643, § 7; Ga. L. 1990, p. 53, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, Ex. Sess., p. 325, § 8; Ga. L. 2014, p. 1, § 4/HB 310; Ga. L. 2019, p. 7, § 4/HB 316.)

The 2019 amendment, effective April 2, 2019, substituted "nomination petition" for "notice of candidacy" at the end of paragraph (c)(5).

Law reviews.

- For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 93 (2014). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Write-in votes.

- The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d) (see now (d) and (e)),21-2-170(b) and (g),21-2-171(a),21-2-172, and21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a political body printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the voter's choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

Cited in Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-904 are included in the opinions under this Code section.

Convention requirements inapplicable to petitions.

- The requirements as to conventions under former Code 1933, § 34-1012 (see now O.C.G.A. § 21-2-172) were not added to the requirements as to nomination petitions under former Code 1933, § 34-1004 (see now O.C.G.A. § 21-2-151). 1968 Op. Att'y Gen. No. 68-314.

Only primary-nominated candidates exempt from qualification fee.

- The effect of former Code 1933, § 34-1004 (see now O.C.G.A. § 21-2-151) and former Code 1933, § 34-1012 (see now O.C.G.A. § 21-2-172) was to exempt only candidates nominated in a primary from paying the qualification fee. 1968 Op. Att'y Gen. No. 68-316.

Qualification fees.

- Former Code 1933, § 34A-904 authorized the city's governing authority to charge qualification fees to those running for office in a general city election. 1969 Op. Att'y Gen. No. 69-330 (decided under former Code 1933, § 34A-904).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 222 et seq.

C.J.S.

- 29 C.J.S., Elections, § 184 et seq.

ALR.

- Construction and application of statutes relating to filling vacancies in nominations for election to public office, 143 A.L.R. 996.

PART 4 N OMINATION OF CANDIDATES OF POLITICAL BODIES FOR STATE-WIDE PUBLIC OFFICE BY CONVENTION

21-2-180. Manner of qualification.

Any political body which is duly registered as provided for in Code Section 21-2-110 is qualified to nominate candidates for state-wide public office by convention if:

  1. The political body files with the Secretary of State a petition signed by voters equal in number to 1 percent of the registered voters who were registered and eligible to vote in the preceding general election; or
  2. At the preceding general election, the political body nominated a candidate for state-wide office and such candidate received a number of votes equal to 1 percent of the total number of registered voters who were registered and eligible to vote in such general election.

(Code 1981, §21-2-180, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1998, p. 295, § 1.)

21-2-181. Filing of petitions generally.

Petitions to qualify political bodies to nominate candidates for state-wide public office by convention shall be filed with the Secretary of State and shall be signed by voters in the manner provided in this part. Such petitions shall provide sufficient space for the printing of the voter's name and for the voter's signature. No forms other than those prescribed in this part shall be used for qualifying a political body to nominate candidates for public office.

(Code 1981, §21-2-181, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1987, p. 34, § 1; Ga. L. 1998, p. 295, § 1.)

21-2-182. Contents of petitions; signatures.

Each person signing a political body qualifying petition shall declare therein that such person is a duly qualified and registered voter of the state, entitled to vote in the next election for members of the General Assembly, and shall provide with such person's signature such person's residence address and county and the date of such person's signature. No person shall sign the same petition more than once. Each petition shall support the qualification of only one political body. No signature shall be valid if made more than 15 months prior to the submission of the petitions to the Secretary of State. A signature shall be stricken from the petition when the signer so requests prior to the presentation of the petitions to the Secretary of State for filing, but such request shall be disregarded if made after such presentation.

(Code 1981, §21-2-182, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state statutes regulating or proscribing payment in connection with gathering signatures on nominating petitions for public office or initiative petitions, 40 A.L.R.6th 317.

21-2-183. Form of petitions; affidavits of circulators.

  1. A petition to qualify a political body to nominate candidates for public office by convention shall be on one or more sheets of uniform size, and different sheets must be used by signers residing in different counties. The upper portion of each sheet, prior to being signed by any petitioner, shall bear the name and title of the Secretary of State and the political body to be formed by the petition. If more than one sheet is used, they shall be bound together when offered for filing and each sheet shall be numbered consecutively, beginning with number one, at the foot of each page.
  2. Each sheet shall bear on the bottom or back thereof the affidavit of the circulator of such sheet setting forth:
    1. The residence address of the circulator;
    2. That each signer manually signed such signer's own name with full knowledge of the contents of the political body qualifying petitions;
    3. That, to the best of the affiant's knowledge and belief, the signers are registered voters of the State of Georgia, qualified to sign the petition;
    4. That their respective residences are correctly stated in the petition; and
    5. That they all reside in the county named in the affidavit.

(Code 1981, §21-2-183, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1997, p. 590, § 15; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Cited in Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

21-2-184. Restriction on amendment or supplementation.

A petition to qualify a political body to nominate candidates for state-wide public office by convention shall not be amended or supplemented after its presentation to the Secretary of State for filing.

(Code 1981, §21-2-184, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1998, p. 295, § 1.)

21-2-185. Filing deadline.

No petition to qualify a political body shall be submitted to the Secretary of State for verification after 12:00 Noon on the second Tuesday in July.

(Code 1981, §21-2-185, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1997, p. 590, § 16; Ga. L. 1998, p. 295, § 1.)

21-2-186. Examination of petitions; judicial review.

Petitions to qualify a political body to nominate candidates for state-wide public office by convention shall be examined and shall be subject to judicial review in the same manner as provided for candidates nominated by petition pursuant to Code Section 21-2-171.

(Code 1981, §21-2-186, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1998, p. 295, § 1.)

21-2-187. Holding of conventions; filing notice of candidacy.

Political bodies shall hold their conventions in accordance with Code Section 21-2-172, and candidates nominated for state-wide public office in convention shall file a notice of candidacy no earlier than 9:00 A.M. on the fourth Monday in June immediately prior to the election and no later than 12:00 Noon on the Friday following the fourth Monday in June as prescribed in Code Section 21-2-132; provided, however, that the political body must file its qualifying petition no later than 12:00 Noon on the second Tuesday in July following the convention as prescribed in Code Section 21-2-172 in order to qualify its candidates to be listed on the general election ballot.

(Code 1981, §21-2-187, enacted by Ga. L. 1986, p. 890, § 5; Ga. L. 1987, p. 1360, § 9; Ga. L. 1989, p. 643, § 8; Ga. L. 1997, p. 590, § 17; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, Ex. Sess., p. 325, § 9; Ga. L. 2014, p. 1, § 5/HB 310.)

Law reviews.

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

JUDICIAL DECISIONS

Effect of federal preclearance procedure.

- Where plaintiff political party held no convention in 1986 to choose its nominees but claimed it was denied ballot access by the fact that it was notified of the resolution of the federal preclearance procedure one day after the deadline for filing notice of candidacy, the court found no merit in this argument since the notice of candidacy provision, enacted one year before the June 9, 1986 preclearance determination, was not altered by the 1986 amendments in O.C.G.A. T. 21 and thus was not subject to the preclearance determination. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Where plaintiff political body contended federal preclearance of the 1986 amendments to O.C.G.A. T. 21 was "late," plaintiff should have complied with the unchallenged Election Code requirements of holding a convention and filing notice of candidacy. Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

ARTICLE 5 PRESIDENTIAL PREFERENCE PRIMARY

OPINIONS OF THE ATTORNEY GENERAL

Bond referendum may be held on the date of the presidential preference primary, but the bond referendum should be placed on a separate ballot so that voters need not request a party ballot to vote only in the referendum. 1975 Op. Att'y Gen. No. 75-132.

21-2-190. Short title.

This article shall be known and may be cited as the "Georgia Presidential Preference Primary Law."

(Code 1933, § 34-1001A, enacted by Ga. L. 1973, p. 221, § 1.)

21-2-191. Parties entitled to hold primaries; dates; decision to elect delegates to presidential nominating convention in primary; qualifying periods for candidates for delegate.

As provided in this article, a presidential preference primary shall be held in 2012 and every four years thereafter for each political party or body which has cast for its candidates for President and Vice President in the last presidential election more than 20 percent of the total vote cast for President and Vice President in this state, so that the electors may express their preference for one person to be the candidate for nomination by such person's party or body for the office of President of the United States; provided, however, that no elector shall vote in the primary of more than one political party or body in the same presidential preference primary. Such primary shall be held in each year in which a presidential election is to be conducted on a date selected by the Secretary of State which shall not be later than the second Tuesday in June in such year. The Secretary of State shall select such date no later than December 1 of the year immediately preceding such primary. A state political party or body may by rule choose to elect any portion of its delegates to that party's or body's presidential nominating convention in the primary; and, if a state political party or body chooses to elect any portion of its delegates, such state political party or body shall establish the qualifying period for those candidates for delegate and delegate alternate positions which are to be elected in the primary and for any party officials to be elected in the primary and shall also establish the date on which state and county party executive committees shall certify to the Secretary of State or the superintendent, as the case may be, the names of any such candidates who are to be elected in the primary; provided, however, that such dates shall not be later than 60 days preceding the date on which the presidential preference primary is to be held.

(Code 1933, § 34-1002A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1974, p. 429, § 1; Ga. L. 1975, p. 1223, § 1; Ga. L. 1986, p. 220, § 1; Ga. L. 1992, p. 1, §§ 1, 1A; Ga. L. 1994, p. 1406, § 6; Ga. L. 1997, p. 590, § 18; Ga. L. 2007, p. 544, § 2/SB 194; Ga. L. 2011, p. 630, § 1/HB 454.)

Editor's notes.

- This Code section was amended by §§ 1 and 1A of Ga. L. 1992, p. 1. Section 6 of that Act, however, provided that § 1 of that Act would become effective upon the preclearance of this Act by the United States Attorney General pursuant to § 5 of the federal Voting Rights Act of 1965, as amended. If the Act did not receive such preclearance on or before January 27, 1992, § 1 of the Act would be void and would stand repealed in its entirety as of that time and date and § 1A, which amended this Code section to read as it did prior to the amendment by § 1 of the Act, would become effective on January 28, 1992. If § 1 did receive such preclearance, then § 1A of the Act would not become effective but would be void and stand repealed in its entirety upon § 1 becoming effective. The Act received preclearance by the United States Attorney General on January 27, 1992.

JUDICIAL DECISIONS

Preservation of party autonomy.

- The federal district court reads O.C.G.A. § 21-2-191 (only those parties which have cast greater than twenty percent of the votes in the last presidential election may participate in the presidential preference primary) and O.C.G.A. § 21-2-195 (parties are free to set out the rules by which delegates are bound) alongside O.C.G.A. § 21-2-193 (ballot decision-making) as a distinct attempt at preserving party autonomy in the nomination process. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

Cited in Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992).

21-2-192. Proclamation by Governor; copies of proclamation transmitted to superintendents.

It shall be the duty of the Governor to issue his proclamation for such presidential preference primary, a copy of which shall be transmitted promptly by the Secretary of State to the superintendent of each county.

(Code 1933, § 34-1008A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1975, p. 1223, § 3; Ga. L. 1986, p. 220, § 2.)

21-2-193. List of names of candidates to appear on ballot; publication of list.

On a date set by the Secretary of State, but not later than 60 days preceding the date on which a presidential preference primary is to be held, the state executive committee of each party which is to conduct a presidential preference primary shall submit to the Secretary of State a list of the names of the candidates of such party to appear on the presidential preference primary ballot. Such lists shall be published on the website of the Secretary of State during the fourth week immediately preceding the date on which the presidential preference primary is to be held.

(Code 1933, § 34-1003A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1980, p. 5, § 1; Ga. L. 1987, p. 1360, § 10; Ga. L. 1993, p. 118, § 1; Ga. L. 1994, p. 1406, § 7; Ga. L. 1997, p. 590, § 19; Ga. L. 2007, p. 544, § 3/SB 194; Ga. L. 2011, p. 630, § 2/HB 454.)

JUDICIAL DECISIONS

Constitutionality.

- This section is neither unduly burdensome nor irrational, and is valid under U.S. Const., amend. 14. Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980).

O.C.G.A. § 21-2-193, by identifying three logically representative members of each party to serve on the committee, and by providing a check against arbitrariness by allowing only one member of the party on the committee to override the unanimous decision of the committee, is narrowly tailored to advance the interests of the state in conducting orderly and efficient elections, and in allowing the parties to choose their candidates, and is not violative of the First and Fourteenth Amendments. Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd, 87 F.3d 1226 (11th Cir. 1996).

Primary candidate selection procedure not state action.

- The procedure for selecting primary candidates set forth in O.C.G.A. § 21-2-193 does not amount to state action since the state does not assist the party members in their decision; it does not join in the decision-making process with the party members; it does not delegate authority to the parties that the parties do not already have; and it does not mandate guidelines for the decision-making process. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

State interest in protecting rights of political parties.

- State interest in not interfering with (and possibly even facilitating) the rights of political parties to define their membership and their representatives is legitimate and compelling. Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd, 87 F.3d 1226 (11th Cir. 1996).

Preservation of party autonomy.

- The federal district court reads O.C.G.A. § 21-2-191 (only those parties which have cast greater than twenty percent of the votes in the last presidential election may participate in the presidential preference primary) and O.C.G.A. § 21-2-195 (parties are free to set out the rules by which delegates are bound) alongside O.C.G.A. § 21-2-193 (ballot decision-making) as a distinct attempt at preserving party autonomy in the nomination process. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

Exclusion of candidate from ballot.

- The Republican Party enjoys a constitutionally protected right of freedom of association, which encompasses its decision to exclude a candidate for the Republican nomination for President of the United States as a candidate on the Republican Primary ballot because the candidate's political beliefs are inconsistent with those of the Republican Party. Duke v. Cleland, 954 F.2d 1526 (11th Cir.), cert. denied, 502 U.S. 1086, 112 S. Ct. 1152, 117 L. Ed. 2d 279 (1992).

Presidential selection candidate committee, acting as representatives of the Republican Party under O.C.G.A. § 21-2-193, did not heavily burden a candidate's First Amendment and Fourteenth Amendment rights, nor voters' associational rights and their right to vote for a candidate of their choice, when it excluded the candidate from the Republican Party's presidential primary ballot. Duke v. Cleland, 87 F.3d 1226 (11th Cir. 1996).

Voter's rights not burdened.

- Voters have a right to vote for the candidate of their choice, but only the candidate of their choice on the ballot, and they cannot argue that, of the universe of candidates, the exclusion of their favorite candidate from the ballot necessarily "heavily burdens" their rights; to so hold would open the ballot to anyone who has some support in the electorate. Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd, 87 F.3d 1226 (11th Cir. 1996).

RESEARCH REFERENCES

ALR.

- Constitutionality of statute relating to election ballots as regards place or number of appearances on the ballots of names of candidates, 78 A.L.R. 398.

Constitutionality of candidate participation provisions for primary elections, 121 A.L.R.5th 1.

21-2-194. Procedure for withdrawal of candidates.

Reserved. Repealed by Ga. L. 1997, p. 590, § 20, effective April 14, 1997.

Editor's notes.

- This Code section was based on Code 1933, § 34-1004A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1987, p. 1360, § 11; Ga. L. 1994, p. 1406, § 8.

21-2-195. Procedures by which delegates and alternates to national nominating conventions selected.

The state executive committee of each political party or body shall determine the method and procedures by which delegates and delegate alternates to the national nominating conventions are to be selected as well as adopt any other rule not inconsistent with this article. The state executive committee of the political party or body shall establish, at least 90 days prior to the presidential preference primary, procedures to be followed in the nomination of candidates for delegates and delegate alternates to the nominating convention of the political party or body. A copy of any rule or regulation adopted by the state executive committee shall be sent to the Secretary of State within seven days after its adoption, to become a public record.

(Code 1933, § 34-1005A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1975, p. 1223, § 2; Ga. L. 1979, p. 1316, § 1.)

Law reviews.

- For note, "Selecting and Certifying National Political Convention Delegates - A Party or a State Right?," see 4 Ga. L. Rev. 875 (1970).

JUDICIAL DECISIONS

Preservation of party autonomy.

- The federal district court reads O.C.G.A. § 21-2-191 (only those parties which have cast greater than twenty percent of the votes in the last presidential election may participate in the presidential preference primary) and O.C.G.A. § 21-2-195 (parties are free to set out the rules by which delegates are bound) alongside O.C.G.A. § 21-2-193 (ballot decision-making) as a distinct attempt at preserving party autonomy in the nomination process. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

Cited in O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976); Belluso v. Poythress, 485 F. Supp. 904 (N.D. Ga. 1980); Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992).

21-2-196. Qualification oath of delegates and alternates to national convention.

Any person selected as a delegate or delegate alternate to such national convention shall file a qualification oath with theSecretary of State pledging support at the convention to the candidate of their political party or body for the office of President of the United States for whom they are selected to support. The oath shall state that the delegate or delegate alternate affirms to support such candidate until the candidate is either nominated by such convention or receives less than 35 percent of the votes for nomination by such convention during any balloting, or until the candidate releases the delegates from such pledge. No delegate shall be required to vote for such candidate after two convention nominating ballots have been completed.

(Code 1933, § 34-1006A, enacted by Ga. L. 1973, p. 221, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Intent.

- This section reflects the legitimate interest of the state in insuring orderliness in the electoral process, and it provides a means of presenting the political preferences of the people of this state to a political party. Also, the considerable public funds expended in establishing these preferences are an adequate basis for the reasonable conditions imposed by that section. 1980 Op. Att'y Gen. No. 80-104.

21-2-197. Effect of withdrawal of presidential candidate.

Any delegate to a national convention whose presidential candidate withdraws after being entitled to delegate votes pursuant to this article shall be an unpledged delegate to the national convention.

(Code 1933, § 34-1007A, enacted by Ga. L. 1973, p. 221, § 1.)

21-2-198. Assessment of qualifying fee for candidates listed on presidential preference primary ballot.

No qualifying fee may be assessed for presidential candidates or for candidates for delegate or delegate alternate whose names are listed on a presidential preference primary ballot.

(Code 1933, § 34-1009A, enacted by Ga. L. 1973, p. 221, § 1; Ga. L. 1975, p. 1223, § 4.)

21-2-199. Election of political party committee members or officers at primary.

The presidential preference primary may be considered as a general primary for any political party wishing to elect committee members or officers therein. Such party shall prescribe by state party charter, bylaws, or rules and regulations regarding qualifying of candidates and the fixing and publishing of qualifying fees, if any.

(Code 1933, § 34-1012A, enacted by Ga. L. 1975, p. 1223, § 7.)

21-2-200. Applicability of general primary provisions; form of ballot.

A presidential preference primary shall be conducted, insofar as practicable, pursuant to this chapter respecting general primaries, except as otherwise provided in this article.In setting up the form of the ballot, the Secretary of State shall provide for designating the name of the candidate to whom a candidate for delegate or delegate alternate is pledged, if any.

(Code 1933, § 34-1011A, enacted by Ga. L. 1975, p. 1223, § 6; Ga. L. 1992, p. 1, § 3; Ga. L. 1994, p. 1406, § 9.)

OPINIONS OF THE ATTORNEY GENERAL

Bond referendum may be held on the date of the presidential preference primary, but the bond referendum should be placed on a separate ballot so that voters need not request a party ballot to vote only in the referendum. 1975 Op. Att'y Gen. No. 75-132.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 223 et seq.

C.J.S.

- 29 C.J.S., Elections, § 198 et seq.

ARTICLE 6 REGISTRATION OF VOTERS

Cross references.

- Exceptions to right to register and vote, Ga. Const. 1983, Art. II, Sec. I, Para. III.

Penalties for offenses relating to voter registration, §§ 21-2-561,21-2-562.

Editor's notes.

- Ga. L. 1994, p. 1443, § 3, effective January 1, 1995, repealed the Code sections formerly codified at this article and enacted a new article. The former article consisted of Code Sections21-2-210 through21-2-246 and was based on Orig. Code 1863, § 1227; Code 1868, § 1308; Code 1873, § 1281; Code 1882, § 1281; Ga. L. 1894, p. 115, §§ 2, 6-8, 10-12, 14; Ga. L. 1895, p. 115, § 3; Civil Code 1895, §§ 34, 36, 41, 42, 48-50, 52-54, 56-58, 60, 63, 64; Ga. L. 1897, p. 95, § 1; Ga. L. 1899, p. 21, § 1; Ga. L. 1908, p. 58, §§ 1, 4-10; Civil Code 1910, §§ 36, 38, 41, 42, 49, 50, 52, 54-56, 58, 59, 61, 63-66, 68, 70, 71, 73, 74; Ga. L. 1911, p. 167, § 2; Ga. L. 1913, p. 115, §§ 1, 3; Code 1933, §§ 34-103, 34-106 - 34-108, 34-115, 34-203, 34-204, 34-301, 34-303, 34-401, 34-402, 34-404, 34-405, 34-407, 34-408, 34-602 - 34-605, 34-801, 34-803, 34-804, 34-1001, 34-1101; Ga. L. 1943, p. 353, § 3; Ga. L. 1949, p. 1204, §§ 6-11, 13-20, 23, 24, 26, 28-36, 39, 41, 42, 45, 48, 53, 54; Ga. L. 1950, p. 126, § 8; Ga. L. 1955, p. 344, § 1; Ga. L. 1957, p. 385, § 1; Ga. L. 1958, p. 269, §§ 2-8, 10-17, 20-31, 33, 35, 36, 39, 41, 43, 44; Ga. L. 1959, p. 182, § 1; Ga. L. 1960, p. 257, § 1; Ga. L. 1960, p. 955, § 1; Ga. L. 1961, p. 56, § 1; Ga. L. 1961, p. 162, § 1; Ga. L. 1961, p. 164, § 1; Ga. L. 1963, p. 73, §§ 1, 2; Ga. L. 1964, Ex. Sess., p. 26, § 1; Code 1933, §§ 34-601 - 34-607, 34-609 - 34-617, 34-619 - 34-636; Ga. L. 1968, p. 847, § 1; Ga. L. 1968, p. 871, §§ 1-4, 4a; Ga. L. 1969, p. 285, §§ 1, 2; Ga. L. 1969, p. 329, §§ 5a, 7; Ga. L. 1970, p. 383, §§ 1, 2; Ga. L. 1971, p. 270, § 1; Ga. L. 1971, Ex. Sess., p. 61, §§ 1-7; Ga. L. 1974, p. 95, §§ 1-6; Ga. L. 1975, p. 803, §§ 1-4; Ga. L. 1976, p. 457, §§ 1-4; Ga. L. 1976, p. 468, § 1; Ga. L. 1976, p. 473, § 1; Code 1933, § 34-626.1; Ga. L. 1977, p. 1053, § 2; Ga. L. 1978, p. 1004, §§ 6-13, 24, 36; Code 1933, § 34-608; Ga. L. 1978, p. 1023, § 1; Ga. L. 1978, p. 1035, § 1; Ga. L. 1979, p. 955, § 2; Ga. L. 1979, p. 962, § 1; Ga. L. 1979, p. 1080, § 1; Ga. L. 1980, p. 1256, §§ 1, 6; Ga. L. 1981, p. 1238, §§ 4-6; Ga. L. 1981, p. 1718, §§ 2, 3; Ga. L. 1981, p. 1798, §§ 1-3; Code 1981, §§ 21-2-210 - 21-246; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 442, §§ 1, 2; Ga. L. 1982, p. 688, §§ 1, 2; Ga. L. 1982, p. 850, §§ 1, 2; Ga. L. 1982, p. 1292, §§ 3-7; Ga. L. 1982, p. 1512, § 5; Ga. L. 1982, p. 2107, §§ 21-23; Ga. L. 1983, p. 140, §§ 1, 2; Ga. L. 1983, p. 786, § 2; Ga. L. 1983, p. 930, §§ 5, 6; Ga. L. 1984, p. 1, §§ 2-5; Ga. L. 1984, p. 133, § 1; Ga. L. 1984, p. 635, § 1; Ga. L. 1984, p. 677, § 1; Ga. L. 1984, p. 694, § 1; Ga. L. 1984, p. 922, § 1; Ga. L. 1984, p. 1372, § 1; Ga. L. 1984, p. 1430, § 1; Ga. L. 1984, p. 1490, §§ 1, 2; Code 1981, § 21-2-232.1; Ga. L. 1985, p. 206, § 1; Ga. L. 1985, p. 496, §§ 7-12; Code 1981, § 21-2-232.2; Ga. L. 1985, p. 632, §§ 1, 2; Ga. L. 1985, p. 1236, § 1; Ga. L. 1985, p. 1318, §§ 1, 2; Ga. L. 1986, p. 32, § 1; Ga. L. 1986, p. 382, §§ 2, 3; Ga. L. 1986, p. 772, § 2; Ga. L. 1986, p. 932, §§ 1-4; Ga. L. 1986, p. 1028, § 1; Ga. L. 1987, p. 351, § 1; Ga. L. 1987, p. 417, §§ 2, 3; Ga. L. 1987, p. 1360, § 12; Ga. L. 1988, p. 639, § 1; Ga. L. 1988, p. 647, § 1; Ga. L. 1988, p. 752, §§ 1-5; Ga. L. 1988, p. 926, § 1; Ga. L. 1988, p. 928, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1989, p. 659, § 1; Ga. L. 1989, p. 661, § 1; Ga. L. 1989, p. 662, § 1; Ga. L. 1989, p. 849, § 1; Ga. L. 1989, p. 1082, § 1; Ga. L. 1990, p. 143, §§ 1, 1A, 2; Ga. L. 1990, p. 243, §§ 5, 6; Ga. L. 1990, p. 1238, § 1; Ga. L. 1990, p. 1282, § 1; Ga. L. 1991, p. 133, § 1; Ga. L. 1992, p. 56, § 1; Ga. L. 1992, p. 1060, § 1; Ga. L. 1992, p. 1231, § 1; Ga. L. 1992, p. 1815, § 1; Ga. L. 1992, p. 2048, § 1; Ga. L. 1992, p. 2051, § 1; Ga. L. 1992, p. 2345, § 1; Ga. L. 1993, p. 118, § 1; Ga. L. 1993, p. 617, §§ 6, 7; Ga. L. 1994, p. 237, § 2; Ga. L. 1994, p. 1406, §§ 10-18.

Ga. L. 1994, p. 1443, § 28, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval [April 15, 1994] for the purpose of authorizing the Secretary of State to design and distribute such forms and materials and to develop, procure, and install such computer hardware and software as are required under the provisions of this Act and to exercise such administrative authority as such officer deems necessary and proper for the implementation of this Act. For all other purposes, this Act shall become effective January 1, 1995."

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Chapter 34-6 and § 34-115 are included in the annotations for this article.

Purpose of registration statutes.

- Registration statutes have for their purpose the regulation of the exercise of the right of suffrage, not to qualify or restrict the right to vote. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949), appeal dismissed, 339 U.S. 946, 70 S. Ct. 804, 94 L. Ed. 1361 (1950) (decided under former Code 1933, § 34-115).

Registration laws are the means or machinery under which proofs are furnished showing the existence of the voter's qualifications. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949), appeal dismissed, 339 U.S. 946, 70 S. Ct. 804, 94 L. Ed. 1361 (1950) (decided under former Code 1933, § 34-115).

Registration laws must be impartial, uniform, and reasonable, giving to all a fair and reasonable opportunity to exercise such right. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949), appeal dismissed, 339 U.S. 946, 70 S. Ct. 804, 94 L. Ed. 1361 (1950) (decided under former Code 1933, § 34-115).

Limitation on legislature's power to determine voter qualifications.

- The legislature, even in the absence of express constitutional power, can provide for the registration of voters; but where the state Constitution provides who shall be entitled to vote, the legislature cannot take from or add to the qualifications unless the power is granted expressly or by necessary implication. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949), appeal dismissed, 339 U.S. 946, 70 S. Ct. 804, 94 L. Ed. 1361 (1950) (decided under former Code 1933, § 34-115).

The legislature has wide latitude in determining how the qualifications required by the Constitution may be determined, provided it does not deny the right of franchise by making the exercise of such right so difficult or inconvenient as to amount to a denial of the right to vote. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221 (1949), appeal dismissed, 339 U.S. 946, 70 S. Ct. 804, 94 L. Ed. 1361 (1950) (decided under former Code 1933, § 34-115).

Cited in NAACP v. Georgia, 494 F. Supp. 668 (N.D. Ga. 1980).

OPINIONS OF THE ATTORNEY GENERAL

For general discussion of powers and duties of county boards of registrars and chief registrars, see 1982 Op. Att'y Gen. No. U82-12.

RESEARCH REFERENCES

ALR.

- Constitutionality of statutes in relation to registration before voting at election or primary, 91 A.L.R. 349.

21-2-210. Secretary of State deemed the chief state election official.

The Secretary of State is designated as the chief state election official to coordinate the responsibilities of this state under the National Voter Registration Act of 1993 (P.L. 103-31) as required by 42 U.S.C. Section 1973gg-8.

(Code 1981, §21-2-210, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Rights as citizens, § 31-8-111.

Law reviews.

- For article, "Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks," see 67 Emory L.J. 545 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-609 and 34A-505 are included in the annotations for this Code section.

Registration dependent upon furnishing required information.

- Registration is dependent upon making proper application by furnishing under oath, and over the signature of the applicant, the information required by the statutorily prescribed registration forms. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-609 and 34A-505).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 177, 183.

C.J.S.

- 29 C.J.S., Elections, § 59.

21-2-211. List of registered electors; provision of equipment to access and utilize list.

  1. The Secretary of State shall establish and maintain a list of all eligible and qualified registered electors in this state which shall be the official list of electors for use in all elections in this state conducted under this title.
    1. As used in this subsection, the term "equipment" shall include, but not be limited to, computer hardware; computer software; modems, controllers, and other data transmission devices; data transmission lines; scanners and other digital imaging devices; and printers.
    2. The Secretary of State is authorized to procure and provide all of the necessary equipment to permit the county boards of registrars to access and utilize the official list of electors maintained by the Secretary of State pursuant to this Code section, provided that funds are specifically appropriated by the General Assembly for that purpose.

(Code 1981, §21-2-211, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1.)

21-2-212. County registrars; appointment; certification; term of service; vacancies; compensation and expenses of chief registrar, registrars, and other officers and employees; budget estimates.

  1. Except in the case in which a county has a board of elections and registration, the judge of the superior court in each county or the senior judge in time of service in those counties having more than one judge shall appoint in accordance with this Code section, upon the recommendation of the grand jury of such county, not less than three nor more than five judicious, intelligent, and upright electors of such county as county registrars. The grand jury shall submit to the judge the names of a number of electors equal to twice the number of persons to be appointed and the appointment shall be made therefrom and shall be entered on the minutes of the court. When making such appointments when appropriate, the judge will designate one of the registrars as chief registrar who shall serve as such during such registrar's term of office, and such designation shall likewise be entered on the minutes of the court. It shall be the duty of the clerk of the superior court to certify the appointments and designation to the Secretary of State within 30 days after the appointments and designation, and commissions shall be issued as for county officers. When certifying such names to the Secretary of State, the clerk of the superior court shall also list the addresses of the registrars. Except in the case in which the local Act creating a county board of elections and registration specifically provides for the appointment and removal by another authority, such judge will have the right to remove one or more of such registrars at any time for cause after notice and hearing. In case of the death, resignation, or removal of a registrar, the judge shall appoint a successor who shall serve until the next grand jury convenes, at which time the grand jury shall submit to the judge the names of two judicious, intelligent, and upright electors of such county; and the judge shall make an appointment from said list, such successor to serve the unexpired term of such registrar's predecessor in office. In the event the grand jury is in session at the time of any such death, removal, or resignation, such grand jury shall immediately submit the names of said electors to the judge for such appointment. Each such appointment or change in designation shall be entered on the minutes of the court and certified as provided in this Code section.
    1. Except as otherwise provided in this subsection, appointees under this article shall serve for a term of four years and until their successors are appointed and qualified, except in the event of resignation or removal as provided in subsection (a) of this Code section. Their terms shall commence on July 1 and expire on June 30 four years thereafter.
    2. The first new grand jury which convenes in each county in the year 2013 shall submit to the judge the list of names as provided in subsection (a) of this Code section. From this list, the judge shall appoint two registrars to serve two-year terms of office and until their respective successors are appointed and qualified and not more than three registrars to serve four-year terms of office and until their respective successors are appointed and qualified. Thereafter, the first new grand jury which convenes in each county in each odd-numbered year shall submit to the judge a list of names equal to twice the number of registrars whose terms are to expire that year. From this list, the judge shall appoint successors to the registrars whose terms are expiring that year who shall then serve terms of office of four years and until their respective successors are selected and qualified.
    3. Such list of names shall be submitted to the judge, who shall appoint the registrars and designate the chief registrar, as needed, prior to June 30. No appointment for a full term shall be made prior to January 1 of the year in which the appointee is to take office. If no such grand jury is convened or, if convened but failed to recommend, the judge shall appoint the registrars without the necessity of any recommendation. In the event that a registrar holds over beyond the end of the registrar's term of office due to the failure to have a successor timely appointed and qualified, the successor shall be appointed to serve the remainder of the term of office and shall not receive a new four-year term of office.
  2. Reserved.
  3. The chief registrar shall be the chief administrative officer of the board of registrars and shall generally supervise and direct the administration of the affairs of the board of registrars. The chief registrar shall act as chairperson of the board of registrars and, as chief registrar, shall perform those functions normally devolving upon the chairperson. The board of registrars shall meet each month on a day selected by the chief registrar to transact the business of the board. The board shall also meet at other times as needed upon the call of the chief registrar or upon the request of two or more of the registrars. The chief registrar shall be compensated in an amount of not less than $61.00 per day for each day of service on the business of the board of registrars. The other registrars shall be compensated in an amount of not less than $48.00 per day for each day of service on the business of the board of registrars. In lieu of the per diem compensation provided for in this subsection, the chief registrar may be compensated in an amount not less than $272.00 per month and the other registrars in an amount not less than $242.00 per month. The per diem or monthly compensation, as the case may be, shall be fixed, subject to the limitations provided for in this subsection, by the governing authority of each county and shall be paid from county funds. The compensation of other officers and employees appointed and employed under this article shall be fixed by the board of registrars with the approval of the governing authority of each county and shall be paid from county funds.
  4. If, within 90 days of the end of the term or the creation of a vacancy for a county registrar, an appointment is not made in accordance with subsection (a) of this Code section, the governing authority of the county shall appoint the county registrars in lieu of the judge of the superior court. The appointments shall be entered on the minutes of the county governing authority. The county governing authority shall designate one of the registrars as chief registrar, who shall serve as such during such registrar's term of office. Such designation shall likewise be entered on the minutes of such governing authority. It shall be the duty of the county governing authority to certify the appointments and designation to the Secretary of State and the clerk of the superior court within 30 days after such appointments and designation. In certifying such names to the Secretary of State and the clerk of the superior court, the county governing authority shall also list the addresses of the registrars. Such registrars shall serve for the term and in the manner set forth in subsection (a) of this Code section. Any registrar shall have the right to resign at any time by submitting a resignation to the clerk of the superior court. In the event of the death, resignation, or removal of any registrar, such registrar's duties and authority as such shall terminate instantly. Successors shall be appointed as set forth in subsection (a) of this Code section.
  5. The board of registrars of each county shall prepare annually a budget estimate in which it shall set forth an itemized list of its expenditures for the preceding two years and an itemized estimate of the amount of money necessary to be appropriated for the ensuing year and shall submit the same at the time and in the manner and form other county budget estimates are required to be filed.

(Code 1981, §21-2-212, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 1027, § 4; Ga. L. 1996, p. 145, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 902, § 15; Ga. L. 2005, p. 253, § 22/HB 244; Ga. L. 2010, p. 914, § 7/HB 540; Ga. L. 2011, p. 683, § 5/SB 82; Ga. L. 2017, p. 697, § 5/HB 268.)

The 2017 amendment, effective July 1, 2017, substituted "Reserved" for the former provisions of subsection (c), which read: "The governing authority of each municipality shall appoint registrars as necessary, and the appointments shall be entered on the minutes of such governing authority. The municipal governing authority shall designate one of the registrars as chief registrar. The chief registrar will serve as such during such registrar's term of office, and such designation shall likewise be entered on the minutes of such governing authority. Such registrars shall serve at the pleasure of the municipal governing authority, and compensation of the registrars shall be fixed by such governing authority. Any registrar shall have the right to resign at any time by submitting a resignation to such governing authority. In the event of any such removal or resignation of a registrar, such registrar's duties and authority as such shall terminate instantly. Successors to resigned registrars shall be appointed by the municipal governing authority. Each appointment or change in designation shall be entered on the minutes of such governing authority and certified by the governing authority. The municipal governing authority may furnish such employees and facilities as it deems necessary for the operation of the office and the affairs of the registrars".

Law reviews.

- For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under the 1895 Political Code, former Code 1933, § 34A-104 and former Code Section 21-2-211 are included in the annotations for this Code section.

Judge's duty is official act.

- The duty devolving upon the judge from the 1895 Political Code, §§ 50, 51 was an official act, and political interest was not sufficient to disqualify a judge from hearing a petition for mandamus against the judge requiring the judge to appoint a bipartisan board of registrars, and a petition for injunction to restrain the registrars appointed by the judge from functioning. Elliott v. Hipp, 134 Ga. 844, 68 S.E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423 (1910) (decided under the 1895 Political Code).

Resignation and subsequent rescission.

- Trial court could conclude that the resignation of a member of the board of registrars was not effective until it had been accepted by the superior court judge and that the resignation could be rescinded prior to the time it was accepted. Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522, 444 S.E.2d 877 (1994) (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Election laws can be enforced by penalizing officials involved, without penalizing voters. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Effects of errors of officers and voters distinguished.

- There is a distinction between the errors of officers conducting elections and errors of the voters themselves. In the former case, since the voter has no power over the officer, the officer's blunder will not disenfranchise the voter, unless it is mandatory under the law, whereas the voter may by the voter's own neglect be disenfranchised. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Removal of registrar.

- Findings that voided elections were directly caused by the registrar's failure to follow the law and properly administer the duties of the office were supported by evidence sufficient to warrant the registrar's removal from office for cause. Collier v. Board of Comm'rs, 240 Ga. App. 605, 524 S.E.2d 292 (1999).

Nonresident electors granted right to vote under city ordinance do not have any vested rights to their franchised status which would prevent the General Assembly from enacting a registration law having the effect of invalidating their registration certificates. Parkerson v. Malcolm, 227 Ga. 132, 179 S.E.2d 61 (1971) (decided under former Code 1933, § 34A-104).

Elector not denied right to vote by registrar's negligence.

- An elector will not be deprived of the right to vote merely because of the negligent failure of the registrar to enter the elector's name or address on the registry list, or because the elector was registered by a third person with whom the registrar had left the registrar's books, or because of the failure of the registrar to post a list of the electors, or because the registration was made at a place other than that named by the registrar in the notice. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

The power and duties of registration officers should not be so construed as to make the right to vote by registered voters dependent on a strict observance by such officers of minute directions of this former article, thereby rendering the constitutional right of suffrage liable to be defeated through the ignorance or negligence of the registrars. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Cited in Lewis v. O'Day, 284 Ga. 423, 667 S.E.2d 594 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-603 and former Code Section 21-2-211 are included in the annotations for this Code section.

Precedence of local law in selecting registrars.

- Local act creating a county board of elections and registration did not conflict with former § 21-2-212 and it was appropriate to determine by local act the method of selecting the members of the board of elections and registration. 1986 Op. Att'y Gen. No. U86-38 (decided under former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Section 15-12-81 advertising provision inapplicable.

- The advertisement provisions of Ga. L. 1958, p. 686, §§ 1 and 2 (see O.C.G.A. § 15-12-81) are not applicable to the recommendations of the grand jury for county registrars. 1960-61 Op. Att'y Gen. p. 209 (decided under Ga. L. 1958, p. 269 and former Code Section21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Declaration of intent not to serve following appointment.

- While electors recommended by the grand jury for the board of registrars for a county may declare their intention not to serve, thereby invalidating the recommendations, their declaration of intent after appointment constitutes a resignation, requiring the superior court judge to appoint successors to serve until the next grand jury convenes. 1973 Op. Att'y Gen. No. U73-31 (decided under former Code 1933, § 34-603 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Political party not required to pay registrars' compensation.

- Former Code 1933, § 34-603 did not require that a political party pay any part of the compensation fixed for the county registrars. 1965-66 Op. Att'y Gen. No. 65-27 (decided under former Code Section 21-2-211 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Nonfeasance is cause for removal.

- Nonfeasance or any instance where the registrar might not be doing an effective job would be as much a cause for removal from office as malfeasance in office. Op. Att'y Gen. No. 71-168 (decided under former Code 1933, § 34-603 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 177, 183.

C.J.S.

- 29 C.J.S., Elections, §§ 59, 112, 121.

21-2-213. (Effective until January 1, 2021. See note.) County deputy registrars; clerical help; appointment of county officer or employee as chief deputy registrar.

  1. The board of registrars in each county may appoint deputy registrars to aid them in the discharge of their duties. The number of deputy registrars appointed to serve shall be determined by the board of registrars. Such deputy registrars shall serve without compensation unless the governing authority of the county, by resolution, authorizes compensation. In appointing deputy registrars, the registrars shall select persons who are reasonably representative of a cross section of significantly identifiable groups of the communities or areas where they are to serve.
  2. The board of registrars in each county may hire clerical help to assist them in their duties if the compensation required therefor has been first approved by the governing authority of the county. Such additional clerks shall be eligible to be appointed as deputy registrars for the purpose of registering voters and performing other duties as may be required, but it shall not be necessary for such clerks to be electors of the county in which employed.
  3. In every county wherein the registrars do not maintain an office which is open and staffed during regular business hours, the registrars shall designate and appoint as chief deputy registrar a full-time county officer or employee for the purpose of registering eligible electors and performing other duties as may be required by the board of registrars. The governing authority of the county shall provide for the compensation of the chief deputy registrar in an amount not less than $293.29 per month. The name, business address, telephone number, and any other pertinent information relative to the chief deputy registrar shall be forwarded by the registrars to the Secretary of State's office, where such information shall be maintained on file.

(Code 1981, §21-2-213, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 4; Ga. L. 1998, p. 295, § 1.; Ga. L. 1998, p. 1159, § 16; Ga. L. 2001, p. 902, § 16; Ga. L. 2006, p. 568, § 10/SB 450.)

Editor's notes.

- Code Section 21-2-213 is set out twice in this Code. The first version is effective until January 1, 2021, and the second version becomes effective on that date.

Administrative Rules and Regulations.

- Rules and regulations for voter registration by registrars and deputy registrars, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.03.

Law reviews.

- For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-604 and Code Section 21-2-212 are included in the annotations for this Code section.

Delegation of responsibilities by Board of Registrars permissible.

- Read together, former § 21-2-212 and § 21-2-384 allow the conclusion that the Board of Registrars has authority to delegate to deputy registrars any of the tasks for which it is responsible. 1981 Op. Att'y Gen. No. 81-70 (decided under former Code Section21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Board of registrars may not "hire" tax collector.

- The Election Code does not authorize the Board of Registrars to "hire" the tax commissioner since the commissioner is by law a deputy to the board. 1965-66 Op. Att'y Gen. No. 66-137 (decided prior to 1982 amendment and under former Code 1933, § 34-604 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Oath may be administered in mass.

- Persons authorized to register voters pursuant to subsection (c) of O.C.G.A. § 21-2-212 may, after the registration cards have been completed by the applicants, administer the oath to all applicants at the same time and then obtain the required signatures individually. 1983 Op. Att'y Gen. No. 83-42 (decided under former Code Section21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration in schools outside county.

- Registrars and deputy registrars of a county are not authorized to go into a private high school or area vocational school which is located in another county for the purpose of registering qualified applicants enrolled at that school. 1985 Op. Att'y Gen. No. 85-44 (decided under former Code Section 21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration of students from other counties.

- Principals and assistant principals of public and private high schools and the directors of area vocational schools are authorized to register all qualified students enrolled in their schools, notwithstanding the fact that the students do not reside in the same county in which the school is located. 1985 Op. Att'y Gen. No. 85-44 (decided under former Code Section 21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Other employees of school system not included.

- Authority extends only to students and employees of the school and does not extend to other employees of the school system. 1976 Op. Att'y Gen. No. 76-37 (decided under former Code 1933, § 34-604 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 177, 183. 72 Am. Jur. 2d, State & Local Taxation, § 872.

C.J.S.

- 29 C.J.S., Elections, § 59. 78 C.J.S., Schools & School Districts, § 237. 84 C.J.S., Taxation, §§ 503, 510.

21-2-213. (Effective January 1, 2021. See note.) County deputy registrars; clerical help; appointment of county officer or employee as chief deputy registrar.

  1. The board of registrars in each county may appoint deputy registrars to aid them in the discharge of their duties. The number of deputy registrars appointed to serve shall be determined by the board of registrars. Such deputy registrars shall serve without compensation unless the governing authority of the county, by resolution, authorizes compensation. In appointing deputy registrars, the registrars shall select persons who are reasonably representative of a cross section of significantly identifiable groups of the communities or areas where they are to serve.
  2. The board of registrars in each county may hire clerical help to assist them in their duties if the compensation required therefor has been first approved by the governing authority of the county. Such additional clerks shall be eligible to be appointed as deputy registrars for the purpose of registering voters and performing other duties as may be required, but it shall not be necessary for such clerks to be electors of the county in which employed.
  3. In every county wherein the registrars do not maintain an office which is open and staffed during regular business hours, the registrars shall designate and appoint as chief deputy registrar a full-time county officer or employee for the purpose of registering eligible electors and performing other duties as may be required by the board of registrars. The governing authority of the county shall provide for the compensation of the chief deputy registrar in an amount not less than $349.60 per month. The name, business address, telephone number, and any other pertinent information relative to the chief deputy registrar shall be forwarded by the registrars to the Secretary of State's office, where such information shall be maintained on file.

(Code 1981, §21-2-213, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 4; Ga. L. 1998, p. 295, § 1.; Ga. L. 1998, p. 1159, § 16; Ga. L. 2001, p. 902, § 16; Ga. L. 2006, p. 568, § 10/SB 450; Ga. L. 2019, p. 1015, § 8/SB 171.)

The 2019 amendment, effective January 1, 2021, substituted "$349.60" for "$293.29" in the second sentence of subsection (c).

Editor's notes.

- Code Section 21-2-213 is set out twice in this Code. The first version is effective until January 1, 2021, and the second version becomes effective on that date.

Administrative Rules and Regulations.

- Rules and regulations for voter registration by registrars and deputy registrars, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.03.

Law reviews.

- For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-604 and Code Section 21-2-212 are included in the annotations for this Code section.

Delegation of responsibilities by Board of Registrars permissible.

- Read together, former § 21-2-212 and § 21-2-384 allow the conclusion that the Board of Registrars has authority to delegate to deputy registrars any of the tasks for which it is responsible. 1981 Op. Att'y Gen. No. 81-70 (decided under former Code Section21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Board of registrars may not "hire" tax collector.

- The Election Code does not authorize the Board of Registrars to "hire" the tax commissioner since the commissioner is by law a deputy to the board. 1965-66 Op. Att'y Gen. No. 66-137 (decided prior to 1982 amendment and under former Code 1933, § 34-604 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Oath may be administered in mass.

- Persons authorized to register voters pursuant to subsection (c) of O.C.G.A. § 21-2-212 may, after the registration cards have been completed by the applicants, administer the oath to all applicants at the same time and then obtain the required signatures individually. 1983 Op. Att'y Gen. No. 83-42 (decided under former Code Section21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration in schools outside county.

- Registrars and deputy registrars of a county are not authorized to go into a private high school or area vocational school which is located in another county for the purpose of registering qualified applicants enrolled at that school. 1985 Op. Att'y Gen. No. 85-44 (decided under former Code Section 21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration of students from other counties.

- Principals and assistant principals of public and private high schools and the directors of area vocational schools are authorized to register all qualified students enrolled in their schools, notwithstanding the fact that the students do not reside in the same county in which the school is located. 1985 Op. Att'y Gen. No. 85-44 (decided under former Code Section 21-2-212 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Other employees of school system not included.

- Authority extends only to students and employees of the school and does not extend to other employees of the school system. 1976 Op. Att'y Gen. No. 76-37 (decided under former Code 1933, § 34-604 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 177, 183. 72 Am. Jur. 2d, State & Local Taxation, § 872.

C.J.S.

- 29 C.J.S., Elections, § 59. 78 C.J.S., Schools & School Districts, § 237. 84 C.J.S., Taxation, §§ 503, 510.

21-2-213.1. Monthly contingent expense allowance for the operation of the office of the board of registrars.

In addition to any salary, fees, or expenses now or hereafter provided by law, the governing authority of each county is authorized to provide as contingent expenses for the operation of the office of the board of registrars, and payable from county funds, a monthly expense allowance for each registrar of not less than the amount fixed in the following schedule:

Population Minimum Monthly Expenses ---------- -------------- 0 - 11,889 $ 100.00 11,890 - 74,999 200.00 75,000 - 249,999 300.00 250,000 - 499,999 400.00 500,000 or more 500.00

(Code 1981, §21-2-213.1, enacted by Ga. L. 2001, p. 902, § 17.)

21-2-214. Qualifications of registrars and deputy registrars; prohibited political activities; oath of office; privilege from arrest; duties conducted in public.

  1. Members of the board of registrars shall be electors of this state and the county in which they serve, and any deputy registrars shall be electors of this state. All registrars shall be able to read, write, and speak the English language. Registrars and deputy registrars shall have never been convicted of a felony involving moral turpitude unless such person's civil rights have been restored and at least ten years have elapsed from the date of the completion of the sentence without a subsequent conviction of another felony involving moral turpitude and shall never have been convicted of a crime involving fraud, and the appointing authority shall be authorized to investigate the applicant's criminal history before making such appointment.
  2. The office of a member of a county board of registrars, a deputy registrar, a member of a county or municipal board of elections or county or municipal board of elections and registration, or a member of a joint county-municipal board of elections or joint county-municipal board of elections and registration shall be vacated immediately upon such officer's qualifying for any nomination or office to be voted for at a primary or election or qualifying for any nomination or office or qualifying to have such officer's name placed on any primary or election ballot pursuant to Code Sections 21-2-132 and 21-2-153 or giving notice of such officer's intention of write-in candidacy; provided, however, that this Code section shall not apply to a chief deputy registrar who is also an elected public officer and who seeks to qualify for reelection to the public office such chief deputy registrar is presently holding.Nothing contained in this Code section shall cause the office of a member of a county board of registrars, deputy registrar, member of a county or municipal board of elections or county or municipal board of elections and registration, or a member of a joint county-municipal board of elections or joint county-municipal board of elections and registration to be vacated upon qualifying for or having such officer's name placed on the ballot or holding office in a political party or body or serving as a presidential elector.
  3. No member of a county board of registrars, deputy registrar, member of a county or municipal board of elections or county or municipal board of elections and registration, or a member of a joint county-municipal board of elections or joint county-municipal board of elections and registration, while conducting the duties of such person's office, shall engage in any political activity on behalf of a candidate, political party or body, or question, including, but not limited to, distributing campaign literature, engaging in any communication that advocates or criticizes a particular candidate, officeholder, or political party or body, and wearing badges, buttons, or clothing with partisan messages.
  4. Before entering upon the duties of office, each registrar and deputy registrar shall take the following oath before some officer authorized to administer oaths under the laws of this state:

    "I do solemnly swear that I will faithfully and impartially discharge, to the best of my ability, the duties imposed upon me by law as (deputy) registrar."

  5. Registrars, deputy registrars, election superintendents, and poll officers shall be privileged from arrest upon days of primaries and elections, except for fraudulent misconduct of duty, felony, larceny, or breach of the peace.
  6. The registrars shall conduct their duties in public and all hearings on the qualifications of electors shall be conducted in public.

(Code 1981, §21-2-214, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 230, § 6; Ga. L. 2001, p. 240, § 13; Ga. L. 2003, p. 517, § 15; Ga. L. 2012, p. 995, § 12/SB 92; Ga. L. 2017, p. 697, § 6/HB 268; Ga. L. 2018, p. 1112, § 21/SB 365.)

The 2017 amendment, effective July 1, 2017, in subsection (a), substituted "this state and the county" for "the state and county" near the beginning of the first sentence, and deleted the former third sentence, which read: "Municipal registrars shall be registered Georgia voters and shall be able to read, write, and speak the English language."; and deleted "or municipal" preceding "board of registrars" near the beginning of the first and second sentences of subsection (b) and near the beginning of subsection (c).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "electors of this state" for "electors of the state" at the end of the first sentence of subsection (a).

Administrative Rules and Regulations.

- Rules and regulations for voter registration by registrars and deputy registrars, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.03.

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 114 (2001).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-103 and former Code Section 21-2-213 are included in the annotations for this Code section.

County registrar was not prohibited from entering municipal election because the restriction on registrars did not apply to municipal elections and because the restriction on municipal registrars did not govern county registrars by definition under former Code 1933, § 34A-103. Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108 (1976) (decided under former Code 1933, § 34A-103 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-605 and former Code Section 21-2-213 are included in the annotations for this Code section.

Words "at a primary or election," as they are used in former Code 1933, § 34-605 (formerly § 21-2-213), include any primary or election, whether or not the conduct of that primary or election is otherwise governed by the Georgia Election Code. 1976 Op. Att'y Gen. No. 76-8 (decided prior to 1986 amendment and under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Code Section 45-2-5 not applicable to registrars.

- Qualifications of voter registrars and deputy registrars established by former Code 1933, § 34-605 (formerly § 21-2-213) are unaffected by former Code 1933, § 89-950 (see now O.C.G.A. § 45-2-5) prohibiting counties and municipalities from requiring employees to reside within. 1975 Op. Att'y Gen. No. 75-111 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Person may hold public office acquired prior to becoming registrar.

- Former Code 1933, § 34-605 (formerly § 21-2-213) does not specifically prohibit a person from serving out a term of public office to which elected prior to becoming a registrar or deputy registrar. 1978 Op. Att'y Gen. No. 78-19 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

A county registrar may serve as a city councilman so long as the person is elected to the council prior to becoming a registrar. 1969 Op. Att'y Gen. No. 69-366 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Eligibility for nomination to county office after resignation.

- A deputy registrar, within six months of having resigned from office, is not eligible to qualify for nomination by primary to a county office. 1980 Op. Att'y Gen. No. 80-40 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Membership on Democratic Party county committee would not disqualify a person from serving on the county board of registrars so long as members of the county committee are not voted for at a primary or election. 1968 Op. Att'y Gen. No. 68-470 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Deputy registrars may serve without compensation.

- So long as the deputy registrars possess the qualifications required by the Georgia Election Code, there is no prohibition against these persons serving without compensation. 1971 Op. Att'y Gen. No. 71-168 (decided under former Code 1933, § 34-605 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Display of signs in business used as registration site.

- Private businesses which are used as voter registration places may not display political signs or posters supportive of a particular political candidate, party, or issue. 1986 Op. Att'y Gen. No. 86-14 (decided under former Code Section 21-2-213 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 177, 183.

C.J.S.

- 29 C.J.S., Elections, § 59 et seq. 84 C.J.S., Taxation, §§ 503, 510.

ALR.

- Waiver of privilege against or nonliability to arrest in civil action, 8 A.L.R. 754.

21-2-215. Main office of board of registrars; location; business hours; additional registration places; educators to serve as deputy registrars; training; registration cards and papers.

  1. For the purpose of taking and processing applications for registration and for the purpose of registering electors, such number of registrars or deputy registrars as shall be designated by the chief registrar shall be stationed in the main office of the board of registrars.
  2. In those counties in which the registrars have a main office separate from other county offices, the main office shall be in the courthouse or other public building at the county site. In those counties in which the registrars do not have an office separate from other county offices, the office of the chief deputy registrar or other office designated by the board of registrars which is accessible at all times during normal business hours shall be deemed to be the main office of the board of registrars.
  3. The main office of the board of registrars in each county shall remain open for business during regular office hours on each business day, except Saturday. The main office, or such other offices, shall be open at such designated times other than the normal business hours as shall reasonably be necessary to facilitate registration and at such other hours as will suit the convenience of the public.
  4. The board of registrars may designate additional registration places throughout the county on a temporary or permanent basis. These additional offices for registration will have fixed hours of operation. All voter registration places shall be places open to the general public and frequented by the general public. Such places for temporary or permanent voter registration may include, but shall not be limited to, any of the following: churches, synagogues, governmentally funded and managed public housing facilities, public social agencies, public child care centers, public recreation centers, public buildings and shopping centers, multifamily apartment complexes, child care centers, and educational facilities, provided that such places are in fact open to and frequented by the general public.
  5. Additional registration places and the hours of operation shall be advertised in a newspaper of general circulation in the county or in the form of a public service announcement on radio or television one or more times at least three days prior to the first day for registration.
  6. The State Election Board shall adopt rules and regulations setting forth criteria governing the selection of voter registration places in conformity with the provisions of subsection (d) of this Code section. Boards of registrars shall not adopt rules nor utilize procedures inconsistent with such rules and regulations adopted by the State Election Board; provided, however, that nothing contained in this subsection shall supersede the ultimate authority of local boards in selecting additional voter registration sites.
  7. Each principal or assistant principal of every public or private high school, the president of every public or private college or university, the president of each state supported technical institute in this state, and the designee of such principal, assistant principal, college or university president, or state supported technical institute president shall be a deputy registrar of the county in which the school, college, university, or institute is located for the purpose of receiving voter registration applications from those qualified applicants who are enrolled students within the principal's school or the president's college, university, or institute or who are employed by the private high school, the school system, the college or university, or the state supported technical institute, notwithstanding the fact that such students or employees are not residents of the county in which the school, college, university, or institute is located. Such principals, assistant principals, presidents, and their designees shall inform their students and employees of the availability of such voter registration and shall provide reasonable and convenient procedures to enable such persons who are qualified applicants to register. The principal of each public or private high school, the president of each public or private college or university, and the president of each state supported technical institute are authorized to invite other deputy registrars to the school, college, university, or institute for the purpose of conducting voter registration. All such deputy registrars authorized by this subsection shall receive annual training by the board of registrars of the county in which such deputy registrar shall work.
  8. The completed registration cards in the custody of the board of registrars and the other papers of the board of registrars shall be secured and maintained in the main office of the board of registrars, with the exception that completed registration cards may be retained temporarily at permanent additional voter registration places established under this Code section but shall be transmitted to the main office as expeditiously as possible by a registrar or deputy registrar or by United States mail. In no event shall the completed registration cards be temporarily retained beyond the end of the next business day. However, in counties in which a computer system for the electronic imaging of the entire voter registration card or the signature of the voter is operational and permits the registrars to view the signature of the voter electronically, the completed registration cards may be stored in a secure area outside of the main office of the board of registrars, provided that such cards may be retrieved within a reasonable time in the event that the actual card is needed. The electronic image of the voter's signature may be used by the registrars in the same manner as the original signature on the voter registration card to verify absentee ballot applications, absentee ballots, petitions, and other documents which require the registrars to compare the signature of the voter on the document to the signature on the voter's registration card.
  9. The board of registrars shall enter into the state-wide voter registration system credit for voting by qualified electors to the Secretary of State within 60 days of a primary or election for the purpose of maintaining the list of electors and voter history.

(Code 1981, §21-2-215, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 5; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 14; Ga. L. 2005, p. 253, § 23/HB 244.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 21-2-218 are included in the annotations for this Code section.

Former Code 1933, § 34-610 created three categories of registration places: the main office of the board of registrars; other fixed places which may be designated as registration places; and additional nonfixed registration places which shall be designated in even-numbered years by the chief registrar of counties with a population of over 100,000 according to a United States decennial census of 1960 or later. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided prior to first 1986 amendment of Code Section21-2-218, which deleted the provision relating to counties with a population of 100,000 or more).

Purpose of advertising requirement.

- The advertisement requirement of former § 21-2-218 was a salutary one. It encompassed within its purposes both the interest of the citizen in learning of convenient places to register to vote, and the interest of the voters in knowing where registration was being conducted so that any imbalance in chosen locations became apparent and could be challenged. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Reference in former § 21-2-218 to "additional registration places" was a reference solely to "additional voter registration places" contained in the former section and did not require the one-time advertisement of registration places which are "fixed." Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Advertisement provision of former § 21-2-218 was mandatory and not satisfied by publicity through news articles. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Enforcement of advertising requirement.

- Advertisement provision of former § 21-2-218 could be enforced as to future registration by mandamus or injunction against the registrars. In any instance where it was willfully abrogated by the responsible public officers, they were subject to criminal prosecution under former § 21-2-596. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Failure to advertise had no effect on otherwise valid registration.

- The incorrect registrations of otherwise qualified voters were not invalid because they were processed at additional registration places which were not advertised in compliance with former § 21-2-218, given a finding of good faith. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Designation of church as voter registration site.

- A complaint seeking a declaratory judgment that the acts and policies of the local board of registrars in not designating the plaintiff-church as a voter registration site were illegal was properly dismissed, as: (1) mandamus, used to compel official action when a public official has discretion to act, but arbitrarily and capriciously refuses to do so, was the appropriate remedy; and (2) nothing in former subsection (f) required that churches be designated as voter registration sites. Fourth St. Baptist Church v. Board of Registrars, 253 Ga. 368, 320 S.E.2d 543 (1984) (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-610 and former Code Section 21-2-218 are included in the annotations for this Code section.

County residency requirement.

- Registrar may only conduct registration of electors within the registrat's county for residents of that county. 1980 Op. Att'y Gen. No. 80-63 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration may not be done house-to-house.

- The Georgia Election Code does not contemplate the registration of electors by having the registration official move from house to house for the purpose of registering voters. 1965-66 Op. Att'y Gen. No. 66-163 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registrar's discretion in designating places for registration.

- The discretion formerly given a chief registrar in designating places for registration did not specify that the registrar had uncontrolled discretion; thus, the registrar's designations could be based upon the purpose for which the power existed, the chief purpose being that of registering voters. 1971 Op. Att'y Gen. No. 71-168 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Main registration office had to be at county site.

- Registration of electors and the other functions performed by the registrars were not administrative services but were official functions; therefore, the main office for registration of electors had to be located at the county site, with additional offices located elsewhere in the county as permitted by former Code. 1974 Op. Att'y Gen. No. 74-25 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

No office could be located outside the county.

- County registrars could not lawfully establish a place outside the county which they used for the purpose of receiving and acting upon applications for registration of voters. 1975 Op. Att'y Gen. No. 75-148 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Words "offices" or "other fixed places" in former § 21-2-218 could not be read so as to restrict the physical characteristics of additional voter registration places. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

If office of county board of registrars was staffed only on part-time basis and was not open during regular office hours on each business day, except Saturday, the office of the tax collector or tax commissioner was to be designated the main office of the board of registrars and the records of the board of registrars was to be maintained in the office of the tax collector or tax commissioner. 1985 Op. Att'y Gen. No. U85-13 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Church could be used as a place for voter registration provided the church was open to the general public and frequented by such. A church was open to, and frequented by, the general public if it was open to all worshipers and was frequented by worshipers who were not members of the church's congregation. 1980 Op. Att'y Gen. No. U80-38 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Supervision and security for additional offices had to be of same degree as, but not necessarily exactly the same as, that which was provided for main office. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Location and operation of additional voter registration places had to strictly comply with the former requirements of former Chapter 2 concerning supervision and security. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Sunday hours.

- Former Code 1933, § 34-610 permitted the board of registrars of a county to extend the statutory minimum office hours for registration of voters to include hours on Sundays. 1980 Op. Att'y Gen. No. 80-82 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Where blank and completed registration cards kept.

- With respect to additional voter registration places, blank registration cards could be only (1) at main office; (2) in transit to additional voter registration place; (3) at additional voter registration place, and then after hours of operation, (4a) if voter registration place had same degree of supervision and security as main office, at said additional voter registration site overnight, or, (4b) if requisite supervision and security was unable to be maintained overnight at additional voter registration place, then, in transit back to main office until such time as they were issued again. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Completed registration cards could be (1) at additional voter registration place during times at which registration was taking place, (2) in transit to main office, and, finally, (3) at main office. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Because all registration cards had to be kept in places for registration and because completed registration cards had to be kept in main office of registrars, neither blank nor completed registration cards could be kept at any time in anyone's private home. 1982 Op. Att'y Gen. No. 82-38 (decided under former Code Section 21-2-218 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Blank registration cards could not be issued to an office but had to be issued to deputy registrars, and could not be removed from a registration office. 1978 Op. Att'y Gen. No. 78-39 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Maintenance of voter registration cards.

- Though it was illegal to maintain voter registration lists and polling places on segregated basis, voter registration cards had to be maintained in manner most conducive to administrative convenience. 1962 Op. Att'y Gen. p. 225 (decided under former Code 1933, § 34-610 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 177 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 59, 70, 73.

ALR.

- Waiver of privilege against or nonliability to arrest in civil action, 8 A.L.R. 754.

21-2-216. Qualifications of electors generally; reregistration of electors purged from list; eligibility of nonresidents who vote in presidential elections; retention of qualification for standing as elector; evidence of citizenship; check of convicted felons and deceased persons databases.

  1. No person shall vote in any primary or election held in this state unless such person shall be:
    1. Registered as an elector in the manner prescribed by law;
    2. A citizen of this state and of the United States;
    3. At least 18 years of age on or before the date of the primary or election in which such person seeks to vote;
    4. A resident of this state and of the county or municipality in which he or she seeks to vote; and
    5. Possessed of all other qualifications prescribed by law.
  2. In addition to the qualifications in subsection (a) of this Code section, no person who has been convicted of a felony involving moral turpitude may register, remain registered, or vote except upon completion of the sentence and no person who has been judicially determined to be mentally incompetent may register, remain registered, or vote unless the disability has been removed.
  3. Any person who possesses the qualifications of an elector except that concerning age shall be permitted to register to vote if such person will acquire such qualification within six months after the day of registration; provided, however, that such person shall not be permitted to vote in a primary or election unless such person shall be at least 18 years of age on or before the date of the primary or election in which such person seeks to vote.
  4. Notwithstanding any other provision of this article, any person who was qualified and registered to vote on June 24, 1964, shall not be required to reregister under the terms of this article unless such person shall have become or becomes disqualified to vote by reason of having been purged from the list of electors or for any other reason whatsoever, in which event such person shall, in order to become registered to vote, reregister under the terms of this article.
  5. If any citizen of this state begins residence in another state after the thirtieth day next preceding any election for President and Vice President and, for that reason, does not satisfy the registration requirements of that state, such citizen shall be allowed to vote for presidential and vice presidential electors, in that election, in person in this state if such citizen satisfied, as of the date of such citizen's change of residence, the requirements to vote in this state, or by absentee ballot in this state if such citizen satisfies, but for such citizen's nonresident status and the reason for such citizen's absence, the requirements for absentee voting in this state.
  6. No person shall remain an elector longer than such person shall retain the qualifications under which such person registered.
    1. On and after January 1, 2010, an application for registration under this chapter shall be accompanied by satisfactory evidence of United States citizenship. Upon the receipt of an application without satisfactory evidence of citizenship, the board of registrars shall notify the applicant in writing of the requirement to provide satisfactory evidence of citizenship. The board of registrars shall not determine the eligibility of the applicant until and unless satisfactory evidence of citizenship is supplied by the applicant. If the initial application is received without satisfactory evidence of citizenship prior to the close of voter registration preceding an election, but the applicant supplies satisfactory evidence of citizenship on or prior to the date of such election and the applicant is found eligible to vote, the applicant shall be permitted to vote in the election and any run-off elections resulting therefrom and subsequent elections; provided, however, that those electors who register to vote for the first time in this state by mail also shall supply current and valid identification as required in subsection (c) of Code Section 21-2-220. In the event the applicant does not respond to the request for the missing information within 30 days following the sending of notification to provide satisfactory evidence of citizenship, the application shall be rejected.
    2. Satisfactory evidence of citizenship shall include any of the following:
      1. The number of the applicant's Georgia driver's license or identification card issued by the Department of Driver Services if the applicant has provided satisfactory evidence of United States citizenship to the Department of Driver Services or a legible photocopy of the applicant's driver's license or identification card issued by an equivalent government agency of another state if the agency indicates on the driver's license or identification card that the applicant has provided satisfactory evidence of United States citizenship to the agency;
      2. A legible photocopy of the applicant's birth certificate that verifies citizenship to the satisfaction of the board of registrars;
      3. A legible photocopy of pertinent pages of the applicant's United States passport identifying the applicant and the applicant's passport number or presentation to the board of registrars of the applicant's United States passport;
      4. A presentation to the board of registrars of a legible copy of the applicant's United States naturalization documents or the alien registration number from the applicant's naturalization documents. If only the applicant's alien registration number is provided, the applicant shall not be found eligible to vote until the applicant's alien registration number is verified with the United States Citizenship and Immigration Services by the board of registrars;
      5. Other documents or methods of proof that are established pursuant to the federal Immigration Reform and Control Act of 1986 (P. L. 99-603);
      6. The applicant's Bureau of Indian Affairs card, tribal treaty card, or tribal enrollment card; and
      7. For residents of this state who are United States citizens but are not in possession of any of the documents or methods of proof enumerated under subparagraphs (A) through (F) of this paragraph, other documents or methods of proof for establishing evidence of United States citizenship which shall be promulgated by rule and regulation of the State Election Board.
    3. Notwithstanding any provision of this subsection, any person who is registered in this state on December 31, 2009, shall be deemed to have provided satisfactory evidence of citizenship and shall not be required to submit evidence of citizenship.
    4. After citizenship has been demonstrated to a board of registrars, an elector shall not be required to resubmit satisfactory evidence of citizenship in that or any other county in this state so long as the person continuously remains an elector of this state.
    5. For the purposes of this subsection, proof of voter registration from another state shall not be satisfactory evidence of citizenship.
    6. After a person has submitted satisfactory evidence of citizenship, the board of registrars shall indicate such information on the elector's voter registration record. After two years, the board of registrars may destroy all documents that were submitted as evidence of citizenship.
    7. The Secretary of State shall establish procedures to match an applicant's voter registration information to the information contained in the data base maintained by the Department of Driver Services for the verification of the accuracy of the information provided on the application for voter registration, including whether the applicant has provided satisfactory evidence of United States citizenship.
  7. Prior to approving the application of a person to register to vote, the registrars may check the data bases of persons convicted of felonies and deceased persons maintained by the Secretary of State.

(Code 1981, §21-2-216, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2009, p. 712, § 1/SB 86; Ga. L. 2011, p. 683, § 6/SB 82; Ga. L. 2017, p. 697, § 7/HB 268; Ga. L. 2019, p. 7, § 5/HB 316.)

The 2017 amendment, effective July 1, 2017, inserted "a legible copy of" in the first sentence of subparagraph (g)(2)(D); in subparagraph (g)(2)(F), deleted "number" following "card" twice, and substituted "card" for "number" near the end.

The 2019 amendment, effective April 2, 2019, added "on or before the date of the primary or election in which such person seeks to vote" at the end of paragraph (a)(3) and substituted "unless such person shall be at least 18 years of age on or before the date of the primary or election in which such person seeks to vote" for "until the acquisition of all specified qualifications" at the end of subsection (c).

Cross references.

- Prohibition against denial of right to vote for failure to pay poll tax or other tax, U.S. Const., amend. 24.

Right to register and vote, Ga. Const. 1983, Art. II, Sec. I, Para. II.

Disqualification from registering or voting, Ga. Const. 1983, Art. II, Sec. I, Para. III.

Informing students 18 years and over regarding right to register and vote, § 20-2-310.

Penalty for voting by unqualified elector, § 21-2-571.

Penalty for poll officer who allows unqualified person to vote, § 21-2-590.

Administrative Rules and Regulations.

- Verification of United States citizenship of applicants for voter registration, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.06.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1895, § 36, former Code 1910, § 36, former Code 1933, § 34-601 et seq., and former Code Sections 21-2-217 and 21-2-219 are included in the annotations for this Code section.

Georgia may require its voters to be bona fide residents to register to vote, but it may not require any length of residence as a condition to registering to vote. Abbott v. Carter, 356 F. Supp. 280 (N.D. Ga. 1972) (decided under former Code 1933, § 34-602 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Compliance with federal privacy law.

- State violated the Voting Rights Act, 42 U.S.C. § 1971(a)(2)(B), when it denied voter registration applicants the right to register to vote because they refused to disclose their social security numbers (SSN); disclosing one's SSN was not material in determining whether that person was qualified to vote under state law. Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005).

In order to be entitled to register as a voter, person must take prescribed oath, by which the person is required to depose, in effect, that the person possesses, or will by a designated day in the future possess, all the legal qualifications of a voter. Cole v. McClendon, 109 Ga. 183, 34 S.E. 384 (1899); Drake v. Drewry, 112 Ga. 308, 37 S.E. 432 (1900) (decided under former Code 1895, § 36).

Person not qualified voter if has not taken required oath.

- Although a person's name may appear on the registration list, the person is not a qualified voter if the person has not taken the oath required by former Code 1910, § 36. Chapman v. Sumner Consol. Sch. Dist., 152 Ga. 450, 109 S.E. 129 (1921); Stephens v. Ball Ground Sch. Dist., 153 Ga. 690, 113 S.E. 85 (1922) (decided under former Code 1910, § 36).

Fact that name signed to oath in voters' book prima facie evidence that oath administered.

- The fact that one's name was signed to the oath in the voters' book will be prima facie evidence that the oath was administered as required by former Code 1910, § 36, and a substantial compliance therewith was sufficient. Chapman v. Sumner Consol. Sch. Dist., 152 Ga. 450, 109 S.E. 129 (1921) (decided under former Code 1910, § 36).

Compliance where attention called to oath's content and name subscribed.

- Where the attention of the voters was called to the contents of the registration oath and the voters subscribed their names thereto, this was a substantial compliance with the requirement as to administering such an oath. Brown v. City of Atlanta, 152 Ga. 283, 109 S.E. 666 (1921) (decided under former Code 1910, § 36).

Requirement that registration cards be signed.

- By failing to sign their registration cards, individuals never took the oath required to qualify them as voters in this state and, therefore, they never became lawfully registered voters who were authorized to cast ballots. Johnson v. Byrd, 263 Ga. 173, 429 S.E.2d 923 (1993) (decided under former Code Section21-2-217 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Residence in political subdivision may be required.

- County registrars and the State of Georgia have the power to require that voters be bona fide residents of the relevant political subdivision. McCoy v. McLeroy, 348 F. Supp. 1034 (M.D. Ga. 1972) (decided under former Code 1933, § 34-601 et seq. as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

County registrars may determine whether residence requirements are met.

- County registrars are free to take reasonable and adequate steps to see that all applicants for the right to register to vote actually fulfill the requirements of bona fide residence. McCoy v. McLeroy, 348 F. Supp. 1034 (M.D. Ga. 1972) (decided under former Code 1933, § 34-601 et seq. as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Indicia of residence.

- Since residents of Georgia are prohibited from operating out-of-state licensed motor vehicles in Georgia, a person who regularly drives an out-of-state licensed motor vehicle in Georgia has already determined and is evidencing that person determination that one is not a resident of Georgia for purposes of the former provisions. McCoy v. McLeroy, 348 F. Supp. 1034 (M.D. Ga. 1972) (decided under former Code 1933, § 34-601 et seq. as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Voting by felons.

- Even though felons may have remained registered voters, they still could not have legally voted and their votes could still have been challenged even after they had been cast. Johnson v. Byrd, 263 Ga. 173, 429 S.E.2d 923 (1993) (decided under former Code Section21-2-219 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Cited in Moore v. Nelson, 394 F. Supp. 2d 1365 (M.D. Ga. 2005).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-103 and 34-609 and former Code Sections 21-2-217 and 21-2-219 are included in the annotations for this Code section.

Completion of sentence for crime of moral turpitude a prerequisite to registering to vote.

- If a fine is imposed where authorized by statute in addition to and independent of any sentence of probation, a person may not register and vote until the sentence is complete in all aspects including the completion of the payment of the fine imposed. If the fine is not paid at the end of probation, then the sentence is not completed. 1984 Op. Att'y Gen. 84-33 (decided under former Code Section 21-2-217 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Application inquiring as to race.

- Registration to vote may not be conditioned upon an applicant supplying race on a registration application, though race may be requested as an optional part of the registration process. 1995 Op. Att'y Gen. No. 95-35.

Judicial determination of mental incompetence.

- A separate, judicial determination must be made that a person is "mentally incompetent" prior to the removal of a person's right to vote. 1995 Op. Att'y Gen. No. 95-27.

Disclosure of social security numbers.

- Social security number disclosure required by former Code 1933, §§ 34-103 and 34-609 is exempted by § 7(a) (5 U.S.C. § 552a note) of the Privacy Act of 1974 from the prohibition which prohibits state and local governments, as well as federal agencies, from denying to any individual any right, benefit, or privilege afforded by law for the individual's refusal to disclose social security number. 1976 Op. Att'y Gen. No. 76-6 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Lack of information on registration card and absentee ballot application.

- Where there is an absence of information on a registration card, and a consequent lack of correspondence between that source of information and the information provided on the completed absentee ballot application, the registrar may properly request the absentee ballot applicants to furnish all the information which is sought by former Code 1933, §§ 34-103 and 34-609. In the event the applicant does not furnish the requested information, the application may be rejected. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Where the registration card corresponding to an otherwise proper application for absentee ballot is signed but is otherwise incomplete in some respect, until the completion of proceedings in accordance with O.C.G.A. §§ 21-2-236 or former21-3-137, as the case may be, the registrar may not refuse to deliver the absentee ballot unless the absence of information sought by the registration card on file gives rise to a question as to the applicant's identity. In the latter event, the registrar may request additional information, including that sought by the former provisions, and may, if the applicant refuses to furnish the information requested, reject the absentee ballot application. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Telephone numbers.

- Voter registrars have no authority to request the inclusion of a telephone number on a voter registration card, and in the absence of statutory authority either to require or to request that an elector provide a telephone number, whether listed or unlisted, for a voter registration card, the disclosure of an unlisted number pursuant to an Open Records Act, O.C.G.A. § 50-18-70 et seq., request may constitute an unwarranted invasion of privacy. Hence, a voter's unlisted telephone number should not be disclosed by voter registrars under an Open Records Act request. 1990 Op. Att'y Gen. No. 90-5 (decided under former Code Section21-2-217 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

County residency requirement.

- Registrar may only conduct registration of electors within county for residents of that county. 1980 Op. Att'y Gen. No. 80-63 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Voting in elections held pursuant to § 3-4-41. - Registered and qualified voters in municipal elections may sign petitions and vote in both municipal and county elections held pursuant to O.C.G.A. § 3-4-41, but a county referendum is only binding on the unincorporated areas of the county. 1985 Op. Att'y Gen. No. U85-48 (decided under former Code Section21-2-219 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration is dependent upon making proper application by furnishing under oath, and over the signature of the applicant, the information required by the statutorily prescribed registration forms. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration to vote for President after moving to another state.

- A citizen of Georgia who moves to another state, beginning residence therein after the thirtieth day next preceding the election for President and Vice-President, should be permitted to register to vote for such officers up to 14 days prior to the election, and to vote, either in person or by absentee ballot. 1972 Op. Att'y Gen. No. U72-51 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

School bond elections.

- A person otherwise eligible to vote may vote in school bond elections in this state. 1969 Op. Att'y Gen. No. 69-300 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Out-of-state woman married to Georgia resident may vote.

- A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. 1975 Op. Att'y Gen. No. 75-77 (decided under former Code 1933, §§ 34-103 and 34-609 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 97 et seq., 180 et seq.

C.J.S.

- 29 C.J.S., Elections, § 32 et seq.

ALR.

- Constitutionality of voter participation provisions for primary elections, 120 A.L.R.5th 125.

Validity, construction, and application of state criminal disenfranchisement provisions, 10 A.L.R.6th 31.

Validity of statute requiring proof and disclosure of information as condition of registration to vote, 48 A.L.R.6th 181.

Validity of statute providing for purging voter registration lists of inactive voters, 51 A.L.R.6th 287.

21-2-217. Rules for determining residence.

  1. In determining the residence of a person desiring to register to vote or to qualify to run for elective office, the following rules shall be followed so far as they are applicable:
    1. The residence of any person shall be held to be in that place in which such person's habitation is fixed, without any present intention of removing therefrom;
    2. A person shall not be considered to have lost such person's residence who leaves such person's home and goes into another state or county or municipality in this state, for temporary purposes only, with the intention of returning, unless such person shall register to vote or perform other acts indicating a desire to change such person's citizenship and residence;
    3. A person shall not be considered to have gained a residence in any county or municipality of this state into which such person has come for temporary purposes only without the intention of making such county or municipality such person's permanent place of abode;
    4. If a person removes to another state with the intention of making it such person's residence, such person shall be considered to have lost such person's residence in this state;

      (4.1) If a person removes to another county or municipality in this state with the intention of making it such person's residence, such person shall be considered to have lost such person's residence in the former county or municipality in this state;

    5. If a person removes to another state with the intention of remaining there an indefinite time and making such state such person's place of residence, such person shall be considered to have lost such person's residence in this state, notwithstanding that such person may intend to return at some indefinite future period;
    6. If a person removes to another county or municipality within this state with the intention of remaining there an indefinite time and making such other county or municipality such person's place of residence, such person shall be considered to have lost such person's residence in the former county or municipality, notwithstanding that such person may intend to return at some indefinite future period;
    7. The residence for voting purposes of a person shall not be required to be the same as the residence for voting purposes of his or her spouse;
    8. No person shall be deemed to have gained or lost a residence by reason of such person's presence or absence while enrolled as a student at any college, university, or other institution of learning in this state;
    9. The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention;
    10. No member of the armed forces of the United States shall be deemed to have acquired a residence in this state by reason of being stationed on duty in this state;
    11. If a person removes to the District of Columbia or other federal territory, another state, or foreign country to engage in government service, such person shall not be considered to have lost such person's residence in this state during the period of such service; and the place where the person resided at the time of such person's removal shall be considered and held to be such person's place of residence;
    12. If a person is adjudged mentally ill and is committed to an institution for the mentally ill, such person shall not be considered to have gained a residence in the county in which the institution to which such person is committed is located;
    13. If a person goes into another state and while there exercises the right of a citizen by voting, such person shall be considered to have lost such person's residence in this state;
    14. The specific address in the county or municipality in which a person has declared a homestead exemption, if a homestead exemption has been claimed, shall be deemed the person's residence address; and
    15. For voter registration purposes, the board of registrars and, for candidacy residency purposes, the Secretary of State, election superintendent, or hearing officer may consider evidence of where the person receives significant mail such as personal bills and any other evidence that indicates where the person resides.
  2. In determining a voter's qualification to register and vote, the registrars to whom such application is made shall consider, in addition to the applicant's expressed intent, any relevant circumstances determining the applicant's residence. The registrars taking such registration may consider the applicant's financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse, and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that the registrars may reasonably deem necessary to determine the qualification of an applicant to vote in a primary or election. The decision of the registrars to whom such application is made shall be presumptive evidence of a person's residence for voting purposes.

(Code 1981, §21-2-217, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 1999, p. 21, § 1; Ga. L. 1999, p. 52, § 9; Ga. L. 2003, p. 517, § 16.)

Cross references.

- Right of nonresident to vote, § 1-2-9.

Law reviews.

- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-632 and former Code Section 21-2-241 are included in the annotations for this Code section.

Residency requirement of Commissioner met.

- In a case involving the residency requirements of O.C.G.A. §§ 21-2-217(a) and46-2-1(b), the trial court properly granted a Commissioner's motion for summary judgment because the evidence established the Commissioner's residence in District Two at least 12 months prior to the Commissioner's election to the Public Service Commission; pursuant to O.C.G.A. § 19-2-3, the domicile of the Commissioner's spouse in another district was not presumed to be the Commissioner's domicile. Dozier v. Baker, 283 Ga. 543, 661 S.E.2d 543 (2008).

In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

County residents' challenge to a school board candidate's residency qualification under O.C.G.A. § 45-2-1(1) and Ga. Const. 1983, Art. VIII, Sec. V, Para. II, was barred by res judicata because another challenger had raised the same challenge, and it had been resolved against the challenger by the county's board of elections. Lilly v. Heard, 295 Ga. 399, 761 S.E.2d 46 (2014).

Irrebuttable presumption of married woman's residence unconstitutional.

- The joint operation of former Code 1933, §§ 79-403, 79-407 and 34-632 (see O.C.G.A. §§ 19-2-3 and19-2-6), and former § 21-2-241, respectively, insofar as it established an irrebuttable presumption that the domicile and residence of a married woman was that of her husband, and thereby prevents her from registering to vote in Georgia, violated U.S. Const., amend. 19. Kane v. Fortson, 369 F. Supp. 1342 (N.D. Ga. 1973) (decided prior to 1982 amendment to former Code 1933, § 34-632).

Husband and wife were qualified to vote in a city election where their testimony showed that (1) the husband grew up in the city and entered the military, and that all of his relatives still lived in the city; (2) when he retired from the military in 1993, they had a house in another city, but always considered the city to be their home, (3) the husband worked for the city, and they would regularly travel back and forth between the two cities, (4) they attended church in the city and had a trailer there which they sold two or three years earlier, (5) after the sale of the trailer, they would stay in the city with the husband's mother, (6) the husband apparently still owned some real property in the city and was in the city almost every day, (7) the wife's bank account was in the city and she had voted in the city for 16 years, and (8) their expressed intent was to keep their house in the other city temporarily and to return to the city permanently. Holton v. Hollingsworth, 270 Ga. 591, 514 S.E.2d 6 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-632 and former Code Section 21-2-241 are included in the annotations for this Code section.

Individual's intent as to determination of domicile.

- A registrar must acquire and examine the available evidence in order to ascertain the intent of each individual, on a case by case basis, to determine the domicile of that individual. 1990 Op. Att'y Gen. No. 90-1 (decided under former Code Section 21-2-241 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

One who moves away from a county and makes a home elsewhere forfeits right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933, § 34-632 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Residence of person between 18 and 21 years of age.

- A citizen over 18 years but under 21 years is sui juris for voting purposes and the citizen can establish a residence apart from the residence of parents. However, such citizens must still fulfill the residence requirements established by law and each application should be decided by the voter registrars in accordance with established principles of determining residence. 1971 Op. Att'y Gen. No. 71-151 (decided under former Code 1933, § 34-632 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Residence of member of armed forces.

- A person who is a member of the armed forces does not acquire residence in this state merely because the person is stationed here. A member of the armed forces stationed in this state, who acquires a domicile here, without any present intention of removing therefrom, and to which, whenever the individual is absent, the individual intends to return, would acquire residence in this state. 1968 Op. Att'y Gen. No. 68-68 (decided under former Code 1933, § 34-632 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

United States Navy personnel living offshore in a submarine while stationed at an armed forces base in Georgia may establish residence in a certain county only if they fix their place of habitation at that location, without any present intention of removing therefrom, and with intent to return thereto. 1982 Op. Att'y Gen. No. 82-83 (decided under former Code Section 21-2-241 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Registration in another state by a serviceman stationed in such state for a special election wherein nonresidents of the category are permitted to register and vote under the laws of such state would not necessarily void registration in Georgia. 1970 Op. Att'y Gen. No. U70-103 (decided under former Code 1933, § 34-632 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Business address insufficient for residency purposes.

- A business address, in and of itself, does not fulfill the residency requirements of the Election Code, and an otherwise qualified elector may vote in the election district (now precinct) containing the business address only when such district (now precinct) also contains the elector's residence as defined by the Election Code. 1968 Op. Att'y Gen. No. 68-293 (decided under former Code 1933, § 34-632 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 159 et seq.

C.J.S.

- 29 C.J.S., Elections, § 36 et seq.

ALR.

- Propriety of test or question asked applicant for registration as voter other than formal questions relating to specific conditions of his right to registration, 76 A.L.R. 1238.

Voting by persons in the military service, 155 A.L.R. 1459.

Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office, 39 A.L.R.3d 303.

Validity of residency and precinct-specific requirements of state voter registration statutes, 57 A.L.R. 6th 419.

21-2-218. Cancellation of registration in former state or county; address changes and corrections.

  1. Any person, who is registered to vote in another state and who moves such person's residence from that state to this state, shall, at the time of making application to register to vote in this state, provide such information as specified by the Secretary of State in order to notify such person's former voting jurisdiction of the person's application to register to vote in this state and to cancel such person's registration in the former place of residence.
  2. Any person, who is registered to vote in another county or municipality in this state and who moves such person's residence from that county or municipality to another county or municipality in this state, shall, at the time of making application to register to vote in that county or municipality, provide such information as specified by the Secretary of State in order to notify such person's former voting jurisdiction of the person's application to register to vote in the new place of residence and to cancel such person's registration in the former place of residence.
  3. In the event that an elector moves to a residence within the county or municipality and has a different address from the address contained on the person's registration card, it shall be the duty of such elector to notify the board of registrars of such fact by the fifth Monday prior to the primary or election in which such elector wishes to vote by submitting the change of address in writing. The board of registrars shall then correct the elector's record to reflect the change of address and place the elector in the proper precinct and voting districts. The board of registrars may accept a properly submitted application for an absentee ballot for this purpose for electors who move to an address within the county or municipality which is different from the address contained on the person's registration card. The board of registrars may also accept a properly submitted application for an absentee ballot to correct an elector's name on the voter registration list if all necessary information to complete such a change is included with the application.
  4. In the event that an elector moves to a residence within the county or municipality but into a different precinct or who moves to a residence in the same precinct but at a different address and fails to notify the board of registrars of such fact by the fifth Monday prior to an election or primary such elector shall vote in the precinct of such elector's former residence for such election or primary and for any runoffs resulting therefrom. The superintendent of an election shall make available at each polling place forms furnished by the Secretary of State which shall be completed by each such elector to reflect such elector's present legal residence. Such forms may also be used to notify the board of registrars of a change in an elector's name. The board of registrars shall thereafter place the elector in the proper precinct and voting districts and correct the list of electors accordingly. If the elector is placed in a precinct other than the one in which such elector has previously been voting, such elector shall be notified of the new polling place by first-class mail.
  5. Any provision of this chapter to the contrary notwithstanding, an elector who moves from one county or municipality to another after the fifth Monday prior to a primary or election may vote in the county or municipality or precinct in which such elector is registered to vote.
  6. No person shall vote in any county or municipality other than the county or municipality of such person's residence except as provided in subsection (e) of this Code section.
  7. In the event that the registration records incorrectly indicate that an elector has moved from an address within a precinct, the elector may vote in the precinct upon affirming in writing on a form prescribed by the Secretary of State that the elector still resides in the precinct at the address previously provided to the board of registrars. The registrars shall correct the elector's registration record to reflect the correct address.
  8. If a voter registration application is completed at a polling place for the purpose of recording a change of address and the new address is outside the county, then the registrar shall forward the application to the registrar in the new county of residence.

(Code 1981, §21-2-218, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 230, § 7; Ga. L. 2012, p. 995, § 13/SB 92.)

Administrative Rules and Regulations.

- Rules and regulations for voter registration by registrars and deputy registrars, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.03.

Ballot secrecy, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.01.

Use of absentee ballots when voting machines are inaccessible, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Voting Machines - Vote Recorders, § 183-1-12-.10.

Law reviews.

- For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 114 (2001).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 71, former Code 1933, §§ 34-602 and 34-631 are included in the annotations for this Code section.

Length of residence not condition for registration.

- Georgia may require its voters to be bona fide residents, but it may not require any length of residence as a condition to registering to vote. Abbott v. Carter, 356 F. Supp. 280 (N.D. Ga. 1972) (decided under former Code 1933, § 34-602 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Proof of residence outside precinct does not establish ineligibility.

- Since it is possible for an elector to be eligible to vote in an election district (now precinct) even though no longer residing there, a showing that the absentee ballot oath bears a residence address outside the election district (now precinct) does not establish that the elector was ineligible to vote in the election district (now precinct). Walls v. Garrett, 247 Ga. 640, 277 S.E.2d 903 (1981) (decided under former Code 1933, § 34-631 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Failure to apply to registrars upon moving to new county.

- One who had moved from another county to that wherein an election was held, and, by application to the tax-collector of the latter county, had one's name transferred and entered upon the voters' book of that county, but at no time made any application to the registrars thereof for such transfer, and had offered no proof before them as to qualifications to vote, was not qualified to vote in a bond election. Turk v. Royal, 34 Ga. App. 717, 131 S.E. 119 (1925) (decided under former Code 1910, § 71).

Change of residence more than 30 days prior to election.

- An elector may not vote in a legislative district (now precinct) when the elector has changed residence from that district (now precinct) more than 30 days prior to the primary or election. Taggart v. Phillips, 242 Ga. 484, 249 S.E.2d 268 (1978) (decided under former Code 1933, § 34-631 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Standing to bring action under the National Voter Registration Act.

- Voter who had recently moved suffered a concrete and actual injury by the refusal by the Georgia Secretary of State to accept the voter's voter registration containing the voter's new address, thereby preventing the voter from voting in the voter's new precinct. Charles H. Wesley Educ. Found., Inc. v. Cox, 324 F. Supp. 2d 1358 (N.D. Ga. 2004).

Cited in Haynes v. Wells, 273 Ga. 106, 538 S.E.2d 430 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-631 and 34-804 are included in the annotations for this Code section.

One who moves away from a county and makes a home elsewhere forfeits one's right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933, §§ 34-631 and 34-804 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Duty to make changes in records.

- The board of registrars has the right and duty to make changes in its records if it learns from voters' certificates of changes of names or addresses of voters. 1970 Op. Att'y Gen. No. U70-12 (decided under former Code 1933, §§ 34-631 and 34-804 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 159 et seq., 179 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 36, 38, 39, 40, 41, 66 et seq., 75 et seq.

21-2-219. Registration cards; form; registration by members of armed forces or merchant marine and permanent overseas citizen; Secretary of State to provide information regarding registration and absentee ballot procedures; reports regarding absentee ballots.

  1. The registration cards for use by persons in making application to register to vote shall be in a form as specified by the Secretary of State, which shall include printed forms, forms made available through electronic means, or otherwise. Except as provided in subsection (b) of this Code section and Code Section 21-2-221.2, only registration cards issued or authorized for use by the Secretary of State or the national voter registration card promulgated under the provisions of the National Voter Registration Act of 1993, 42 U.S.C. Section 1973gg-7, shall be accepted for purposes of voter registration.
  2. A person who is a legal resident of this state and a citizen of the United States; who is a member of the armed forces of the United States or the merchant marine, is a spouse or dependent of a member of the armed forces or the merchant marine residing with or accompanying said member, or is temporarily or permanently residing overseas; and who will be absent from such person's county of residence until after the time for registering for an ensuing primary or election may make proper application for voter registration on the official post card or write-in absentee ballot provided for by the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. Section 1973ff, et seq., as amended.
  3. Permanent overseas citizens shall only be authorized to vote for presidential electors and United States senator or representative in Congress. Permanent overseas citizens shall be deemed to be residents of the precinct in which the county courthouse is located.
  4. A properly executed registration card submitted under the provisions of subsection (b) of this Code section shall be considered to be an application for an absentee ballot under Code Section 21-2-381 or a special absentee ballot under Code Section 21-2-381.1, as appropriate.
  5. A person who is a United States citizen, permanently residing overseas, who has never lived in the United States, may register and vote in this state in the county of residence of either of such person's parents under the limitations of subsection (c) of this Code section if either of the person's parents is registered to vote in this state. Such person shall be deemed to reside at the same location as the parent for voting purposes.
  6. The office of the Secretary of State is designated as the office, under the federal Help America Vote Act, to be responsible for providing information on registration and absentee ballot procedures for use by absent uniformed services and overseas voters, including the use of the federal write-in absentee ballot.
  7. The registrars of each county shall report to the Secretary of State within 60 days after a general election in which federal candidates were on the ballot the combined number of absentee ballots transmitted to absent uniformed services and overseas voters in such election and the combined number of such ballots that were returned by such voters and cast in such election.
  8. The Secretary of State shall within 90 days after a general election in which federal candidates were on the ballot report to the federal Election Assistance Commission, on such form as may be prescribed by such commission, the combined number of absentee ballots transmitted to absent uniformed services and overseas voters in such election and the combined number of such ballots that were returned by such voters and cast in such election.

(Code 1981, §21-2-219, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 15; Ga. L. 2003, p. 517, § 17; Ga. L. 2010, p. 569, § 1/HB 1073; Ga. L. 2010, p. 914, § 8/HB 540; Ga. L. 2012, p. 995, § 14/SB 92.)

U.S. Code.

- The Help America Vote Act of 2002, referred to in this Code section, is codified at 42 U.S.C. § 15301 et seq.

JUDICIAL DECISIONS

Compliance with federal Privacy Act.

- Georgia's voter registration forms do not comply with the notice requirements of § 7(b) of the Privacy Act, 5 U.S.C. § 552a, because the form requires an applicant to disclose his or her social security number. Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005).

21-2-220. Application for registration; identification requirement; rejection for failure to provide required information or for submission of false information; aid to disabled or illiterate.

  1. Any person desiring to register as an elector shall apply to do so by making application to a registrar or deputy registrar of such person's county of residence in person, by submission of the federal post card application form as authorized under Code Section 21-2-219, by making application through the Department of Driver Services as provided in Code Section 21-2-221, by making application through the Department of Natural Resources as provided in Code Section 21-2-221.1, by making application online as provided in Code Section 21-2-221.2, by making application through designated offices as provided in Code Section 21-2-222, or by making application by mail as provided in Code Section 21-2-223.
  2. Notwithstanding any other provision of this title, whenever a person makes application to register in person or through the means specified in this Code section, the person authorized to offer registration shall inquire as to whether the individual seeking registration is a citizen of the United States, and the person offering registration shall not be required to offer registration to an individual who answers such inquiry with a negative response.
  3. Except as otherwise provided in this subsection, electors who register to vote for the first time in this state by mail must present current and valid identification either when registering to vote by mail or when voting for the first time after registering to vote by mail. The current and valid identification shall be one or more of those forms of identification provided in subsection (c) of Code Section 21-2-417 or a legible copy thereof. The registrars shall make copies of any original forms of identification submitted by applicants and return the originals to the applicants. The requirement to submit identification shall not apply to:
    1. Persons who submit identifying information with their applications that the registrars are able to match to information contained on a state data base available to such registrars containing the same number, name, and date of birth as contained in the application;
    2. Persons who are entitled to vote by absentee ballot under the federal Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. Section 1973ff, et seq.; or
    3. Persons who are entitled to vote otherwise than in person under any other federal law.
  4. If an applicant fails to provide all of the required information on the application for voter registration with the exception of current and valid identification, the board of registrars shall notify the registrant in writing of the missing information. The board of registrars shall not determine the eligibility of the applicant until and unless all required information is supplied by the applicant. If the initial application is received prior to the close of voter registration prior to an election, if the applicant supplies the necessary information on or prior to the date of the election, and if the applicant is found eligible to vote, the applicant shall be added to the list of electors and shall be permitted to vote in the election and any run-off elections resulting therefrom and subsequent elections; provided, however, that voters who registered to vote for the first time in this state by mail must supply current and valid identification when voting for the first time as required in subsection (c) of this Code section. In the event the elector does not respond to the request for the missing information within 30 days, the application shall be rejected.
  5. If an applicant submits false information, the board of registrars shall reject the application and shall refer the application to the district attorney of the county for criminal prosecution. If the false information is not discovered until after the applicant's application has been approved and the applicant's name added to the list of electors, the giving of such false information shall be cause to challenge the applicant's right to remain on the list of electors, which, if sustained, shall result in such applicant's name being removed from the list and the application being submitted to the district attorney of the county for criminal prosecution.
  6. A person registering to vote who is disabled or illiterate may request assistance from any other person in completing the form for registration, but the person offering assistance shall sign the voter registration form in the space provided to identify the person offering assistance.
  7. The registrars shall note on their records and the electors list any elector who registers by mail for the first time in this state and does not provide the identification required by subsection (c) of this Code section.

(Code 1981, §21-2-220, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 5, 29; Ga. L. 2001, p. 240, § 16; Ga. L. 2003, p. 517, § 18; Ga. L. 2004, p. 732, § 1; Ga. L. 2005, p. 253, § 24/HB 244; Ga. L. 2005, p. 334, § 10-1/HB 501; Ga. L. 2006, p. 69, § 1/SB 467; Ga. L. 2012, p. 995, § 15/SB 92.)

Cross references.

- Handicapped persons, T. 30.

JUDICIAL DECISIONS

Compliance with federal Privacy Act.

- Georgia's voter registration forms do not comply with the notice requirements of § 7(b) of the Privacy Act, 5 U.S.C. § 552a, because the form requires an applicant to disclose his or her social security number. Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005).

OPINIONS OF THE ATTORNEY GENERAL

Digitized signature system not authorized.

- Express statutory authorization must be obtained before a system allowing for use of an applicant's digitized, rather than original, signature may be implemented. 1996 Op. Att'y Gen. No. 96-2.

21-2-220.1. Required documentation for voter registration.

  1. Any person applying to register to vote shall provide his or her Georgia driver's license number or identification card number for an identification card issued pursuant to Article 5 of Chapter 5 of Title 40 on the voter registration application. If a person does not have a Georgia driver's license or identification card issued pursuant to Article 5 of Chapter 5 of Title 40, such person shall provide the last four digits of his or her social security number on the voter registration application. If a person does not have a Georgia driver's license, a Georgia identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or a social security number, the person shall affirm this fact in the manner prescribed in the voter registration application upon penalty of law and such application shall be processed without regard to the procedures outlined in subsections (b), (c), and (d) of this Code section.
  2. In the event that the name, driver's license number, social security number, or date of birth provided by the person registering to vote on the voter registration form does not match information about the applicant on file at the Department of Driver Services or the federal Social Security Administration, the applicant shall nevertheless be registered to vote but shall be required to produce proof of his or her identity to a county registrar, a deputy county registrar, a poll manager, or a poll worker at or before the time that such applicant requests a ballot for the first time in any federal, state, or local election.
  3. Proof of the applicant's identity as set forth in subsection (b) of this Code section shall be the forms of identification listed in subsection (c) of Code Section 21-2-417.

(Code 1981, §21-2-220.1, enacted by Ga. L. 2017, p. 697, § 8/HB 268; Ga. L. 2019, p. 7, § 6/HB 316.)

Effective date.

- This Code section became effective July 1, 2017.

The 2019 amendment, effective April 2, 2019, substituted the present provisions of subsection (b) for the former provisions, which read: "For those voter registration applicants who have a Georgia driver's license number or identification card number for an identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or the last four digits of a social security number, a voter registration application may be accepted as valid only after the board of registrars has verified the authenticity of the Georgia driver's license number, the identification card number of an identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or the last four digits of the social security number provided by the applicant."; rewrote subsection (c); and deleted subsection (d), which read: "(1) If a completed voter registration application has been received by the registration deadline set by Code Section 21-2-224 but the Georgia driver's license number, the identification card number of an identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or the last four digits of the social security number provided by the applicant cannot be verified, the applicant shall be notified that the number cannot be verified and that the applicant must provide sufficient evidence to the board of registrars to verify the applicant's identity in order to have his or her application processed by the board of registrars.

"(2) If the applicant provides such sufficient evidence on or before the date of a primary or election, and if the applicant is found eligible to vote, the applicant shall be added to the list of electors and shall be permitted to vote in the primary or election and any runoff resulting therefrom and subsequent primaries and elections.

"(3) If the applicant has not provided such sufficient evidence or such number has not otherwise been verified on or before the date of a primary or election, the applicant presenting himself or herself to vote shall be provided a provisional ballot. The provisional ballot shall be counted only if such number is verified by the end of the time period set forth in subsection (c) of Code Section 21-2-419 or if the applicant presents sufficient evidence to the board of registrars to verify the applicant's identity, by the end of the time period set forth in subsection (c) of Code Section 21-2-419.

"(4) The voter application shall be rejected if the Georgia driver's license number, identification card number of an identification card issued pursuant to Article 5 of Chapter 5 of Title 40, or last four digits of the social security number provided by the applicant is not verified and the applicant fails to present sufficient evidence to the board of registrars to verify the applicant's identity within 26 months following the date of the application.

"(5) This subsection shall not apply to an electronic voter registration application submitted pursuant to Code Section 21-2-221.2."

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

21-2-221. Driver's license or identification card application as application for voter registration; forms and procedure; electronic transmission of applications and signatures.

  1. Each application to obtain, renew, or change the name or address on a driver's license or identification card issued by the Department of Driver Services pursuant to Chapter 5 of Title 40 made by an applicant who is within six months of such applicant's eighteenth birthday or older shall also serve as an application for voter registration unless the applicant declines to register to vote through specific declination or by failing to sign the voter registration application.
  2. The commissioner of driver services and the Secretary of State shall agree upon and design such procedures and forms as will be necessary to comply with this Code section.
  3. The forms designed by the commissioner of driver services and the Secretary of State:
    1. Shall not require the applicant to duplicate any information required in the driver's license portion of the application with the exception of a second signature;
    2. Shall include such information as required on other voter registration cards issued by the Secretary of State;
    3. Shall contain a statement that states each eligibility requirement contained in Code Section 21-2-216, that contains an attestation that the applicant meets each such requirement, and that requires the signature of the applicant under penalty of perjury; and
    4. Shall include, in print that is identical to that used in the attestation, the penalties provided by law for submission of a false voter registration application; and a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to register will remain confidential and will be used only for voter registration purposes.
  4. Any change of address submitted to the Department of Driver Services for the purpose of changing the information contained on a driver's license or identification card issued by the Department of Driver Services shall serve as a notification of change of address for voter registration unless the registrant states that at the time of submitting the change of address that the change of address is not for voter registration purposes.
  5. The Department of Driver Services shall transmit the completed applications for voter registration to the Secretary of State at the conclusion of each business day. The Secretary of State shall forward the applications to the appropriate county board of registrars to determine the eligibility of the applicant and, if found eligible, to add the applicant's name to the list of electors and to place the applicant in the correct precinct and voting districts.
  6. The Department of Driver Services shall maintain such statistical records on the number of registrations and declinations as requested by the Secretary of State.
  7. No information relating to the failure of an applicant for a driver's license or identification card issued by the Department of Driver Services to sign a voter registration application may be used for any purpose other than voter registration.
  8. The Secretary of State and the commissioner of driver services shall have the authority to promulgate rules and regulations to provide for the transmission of voter registration applications and signatures electronically. Such electronically transmitted signatures shall be valid as signatures on the voter registration application and shall be treated in all respects as a manually written original signature and shall be recognized as such in any matter concerning the voter registration application.

(Code 1981, §21-2-221, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 6; Ga. L. 1998, p. 295, § 1; Ga. L. 2002, p. 437, § 1; Ga. L. 2005, p. 334, § 10-2/HB 501.)

JUDICIAL DECISIONS

Cited in Haynes v. Wells, 273 Ga. 106, 538 S.E.2d 430 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-107, 34-108 and 34-612 and Code Section 21-2-221 are included in the annotations for this Code section.

County board of registrars is the proper agency to determine eligibility to register and vote. 1970 Op. Att'y Gen. No. U70-103 (decided under former Code 1933, §§ 34-107, 34-108, and 34-612 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Oath may be administered in mass.

- Persons authorized to register voters pursuant to O.C.G.A. § 21-2-212(c) may, after the registration cards have been completed by the applicants, administer the oath to all applicants at the same time and then obtain the required signatures individually. 1983 Op. Att'y Gen. No. 83-42 (decided under former Code Section21-2-221 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Failure to sign voter's registration card.

- Where a voter's registration card has not been signed by the voter, such person is not a registered voter and it actually is a misnomer to refer to the person as a "voter." 1968 Op. Att'y Gen. No. 68-145 (decided under former Code 1933, §§ 34-107, 34-108 and 34-612 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 180 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 70, 73.

ALR.

- Voter identification requirements as denying or abridging right to vote on account of race or color under § 2 of Voting Rights Act, 52 U.S.C.A. § 10301, 12 A.L.R. Fed. 3d 4.

21-2-221.1. Voter registration incorporated into resident hunting, fishing, or trapping license; design of forms; record keeping; opting out by businesses selling alcohol for on-premises consumption.

  1. Each application to obtain a resident hunting, fishing, or trapping license issued by the Department of Natural Resources pursuant to Chapter 2 of Title 27 and made by an applicant who is within six months of such applicant's eighteenth birthday or older shall also serve as an application for voter registration unless the applicant declines to register to vote through specific declination or by failing to sign the voter registration application.
  2. The Board of Natural Resources and the Secretary of State shall agree upon and design such procedures and forms as will be necessary to comply with this Code section, including without limitation procedures applicable to processing of applications received by persons approved as license agents for the Department of Natural Resources pursuant to Code Section 27-2-2.
  3. The forms designed by the Board of Natural Resources and the Secretary of State:
    1. Shall not require the applicant to duplicate any information required in the resident hunting, fishing, or trapping license portion of the application with the exception of a second signature;
    2. Shall include such information as required on other voter registration cards issued by the Secretary of State;
    3. Shall contain a statement that states each eligibility requirement contained in Code Section 21-2-216, that contains an attestation that the applicant meets each such requirement, and that requires the signature of the applicant under penalty of false swearing; and
    4. Shall include, in print that is identical to that used in the attestation, the penalties provided by law for submission of a false voter registration application; and a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to register will remain confidential and will be used only for voter registration purposes.
  4. Any person when acting as a license agent for the Department of Natural Resources shall not:
    1. Seek to influence an applicant's political preference;
    2. Display on his or her person any such political preference or political party or body allegiance;
    3. Make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from applying to register to vote; or
    4. Make any statement to an applicant or take any action the purpose or effect of which is to lead the applicant to believe that a decision to apply to register or not to apply to register to vote has any bearing on the availability of services or benefits.
  5. License agents for the Department of Natural Resources acting under this Code section shall not be considered to be deputy registrars under this chapter or any rules and regulations promulgated thereunder.
  6. The Department of Natural Resources shall transmit the completed applications for voter registration to the Secretary of State at the conclusion of each business day. The Secretary of State shall forward the applications to the appropriate county board of registrars to determine the eligibility of the applicant and, if found eligible, to add the applicant's name to the list of electors and to place the applicant in the correct precinct and voting districts.
  7. The Department of Natural Resources shall maintain such statistical records on the number of registrations and declinations as requested by the Secretary of State.
  8. Information relating to the failure of an applicant for a resident hunting, fishing, or trapping license issued by the Department of Natural Resources to sign a voter registration application shall not be used for any purpose other than voter registration and shall not be subject to public inspection.
  9. The Secretary of State and the Board of Natural Resources shall have the authority to promulgate rules and regulations to provide for the transmission of voter registration applications and signatures electronically. Such electronically transmitted signatures shall be valid as signatures on the voter registration application and shall be treated in all respects as a manually written original signature and shall be recognized as such in any matter concerning the voter registration application.
  10. The forms and procedures to implement and administer this Code section shall be designed in a manner such that license agents for the Department of Natural Resources shall not incur any expenses nor be required to make any reports in implementing and administering this Code section in addition to those presently required of such license agents in issuing fishing, hunting, and trapping licenses, other than providing information to the Department of Natural Resources at the time the license application is processed necessary to comply with state and federal voter laws on voter registration.
  11. License agents for the Department of Natural Resources acting under this Code section whose businesses are authorized to sell alcoholic beverages for on-premises consumption may notify the Department of Natural Resources of their desire to opt out of the requirements of this Code section and shall thereafter not be required to comply with this Code section.

(Code 1981, §21-2-221.1, enacted by Ga. L. 2004, p. 732, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d., Elections, § 173 et seq.

C.J.S.

- 29 C.J.S., Elections, § 55 et seq.

21-2-221.2. Voter registration application for electronic voter registration.

  1. A person who is qualified to register to vote in this state and who has a valid Georgia driver's license or identification card may submit a voter registration application on the Internet website of the Secretary of State. The Secretary of State shall, in conjunction with the Department of Driver Services, design and implement a system to allow for such electronic voter registration.
  2. An application submitted pursuant to this Code section shall contain:
    1. The applicant's name and residence address;
    2. The applicant's driver's license or identification card number;
    3. The applicant's date of birth;
    4. An affirmation by the applicant that the applicant is a citizen of the State of Georgia and of the United States;
    5. An affirmation by the applicant that the information provided is truthful and that the applicant is eligible to vote in the State of Georgia;
    6. An assent by the applicant to the use of his or her signature from his or her driver's license or identification card; and
    7. Such other information the Secretary of State deems necessary to establish the identity of the applicant.
  3. Upon the submission of an application through the website pursuant to this Code section, the software used by the Secretary of State for processing applications through the website shall provide for immediate verification of all of the following:
    1. That the applicant has a valid Georgia driver's license or identification card and that the number for that driver's license or identification card provided by the applicant matches the number for the applicant's driver's license or identification card that is on file with the Department of Driver Services;
    2. That the date of birth provided by the applicant matches the date of birth that is on file with the Department of Driver Services; and
    3. That the applicant is a citizen of the State of Georgia and of the United States and that the information provided by the applicant matches the information on file with the Department of Driver Services.

      If any of these items do not match or if the application is incomplete, the application shall be void and shall be rejected and the applicant shall be notified of such rejection either electronically or by mail within five days after such application is rejected.

  4. If all of the items enumerated in subsection (c) of this Code section are verified, the Secretary of State shall obtain an electronic copy of the applicant's signature from the applicant's driver's license or identification card on file with the Department of Driver Services. The application shall then be processed in the same manner as applications under Code Section 21-2-221. Except as otherwise provided by this Code section, the application shall be deemed to have been made as of the date that the information was provided by the applicant through the Internet website.
  5. The matching of information pursuant to subsection (c) of this Code section shall satisfy the requirements of subsection (g) of Code Section 21-2-216.
  6. The Secretary of State shall employ security measures to ensure the accuracy and integrity of voter registration applications submitted electronically pursuant to this Code section.

(Code 1981, §21-2-221.2, enacted by Ga. L. 2012, p. 995, § 16/SB 92.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2012, "do" was substituted for "does" in the ending undesignated paragraph of subsection (c).

RESEARCH REFERENCES

ALR.

- Voter identification requirements as denying or abridging right to vote on account of race or color under § 2 of Voting Rights Act, 52 U.S.C.A. § 10301, 12 A.L.R. Fed. 3d 4.

21-2-222. Designated voter registration agencies and offices; definitions; duties of agencies and offices.

  1. As used in this Code section, the term:
    1. "Persons with disabilities" means persons who have physical disabilities, including, but not limited to, any physical or neurological impairment which severely restricts a person's mobility or manual dexterity; substantial loss of speech, sight, or hearing; or loss of one or more limbs or use thereof; but such term shall not include nonphysical disabilities, mental or emotional disabilities, or disabilities based upon substance abuse.
    2. "Public assistance" means the food stamp program; the Medicaid program; the Women, Infants, and Children program; and the Temporary Assistance for Needy Families program.
    3. "Recruitment office of the armed forces of the United States" includes both regular and reserve forces recruitment offices and national guard recruitment offices.
  2. Each office in this state:
    1. Which provides public assistance;
    2. Which provides state funded programs primarily engaged in providing services to persons with disabilities; and
    3. Which is a recruitment office of the armed forces of the United States located within this state

      shall be designated voter registration agencies.

  3. In addition to the offices listed in subsection (b) of this Code section, the Secretary of State shall designate other offices within the state as designated voter registration offices. Such offices may include, but not be limited to:
    1. State or local governmental offices such as public libraries, public schools, offices of county and municipal clerks, and government revenue offices; and
    2. Federal and nongovernmental offices, with the agreement of such offices.
  4. At each designated voter registration agency, the following services shall be made available:
    1. Distribution of the mail voter registration application provided for in Code Section 21-2-223 in accordance with subsection (f) of this Code section;
    2. Assistance to applicants in completing voter registration application forms, unless the applicant refuses such assistance; and
    3. Acceptance of completed voter registration application forms for submission to the Secretary of State.
  5. If a designated voter registration agency under paragraph (2) of subsection (b) of this Code section provides services to a person with a disability at the person's home, the agency shall provide the services described in subsection (d) of this Code section at such person's home.
  6. A designated voter registration agency that provides service or assistance in addition to conducting voter registration shall:
    1. Distribute with each application for such service or assistance and with each recertification, renewal, or change of address form relating to such service or assistance, when such application, recertification, renewal, or change of address is made in person, the mail voter registration application form provided for in Code Section 21-2-223 unless the applicant declines in writing to register to vote;
    2. Distribute a form provided by the Secretary of State to accompany the voter registration application form which includes:
      1. The question "If you are not registered to vote where you live now, would you like to apply to register to vote here today?";
      2. If the agency provides public assistance, the statement "Applying to register or declining to register to vote will not affect the amount of assistance that you will be provided by this agency.";
      3. Boxes for the applicant to check to indicate whether the applicant is presently registered, would like to register, or declines to register to vote with the statement "IF YOU DO NOT CHECK ANY BOX, YOU WILL BE CONSIDERED TO HAVE DECIDED NOT TO REGISTER TO VOTE AT THIS TIME." in close proximity to the boxes and in prominent type;
      4. The statements "If you would like help in filling out the voter registration application form, we will help you. The decision whether to seek or accept help is yours. You may fill out the application in private."; and
      5. The statement "If you believe that someone has interfered with your right to register or to decline to register to vote or your right to privacy in deciding whether to register or in applying to register to vote, you may file a complaint with the Secretary of State at (insert address and telephone number)."; and
    3. Provide to each applicant who does not decline to apply to register to vote the same degree of assistance with regard to the completion of the voter registration application form as is provided by the office with regard to the completion of its own forms, unless the applicant refuses such assistance.
  7. If an applicant fails to check any box on the form required by subparagraph (f)(2)(C) of this Code section, the applicant shall be deemed to have declined to apply to register to vote.
  8. No information relating to a declination to apply to register to vote in connection with an application made at an office described in subsection (f) of this Code section may be used for any purpose other than voter registration and shall not be subject to public inspection.
  9. Each office shall transmit the completed voter registration application forms to the Secretary of State at least once per week, except that, during the 15 days leading up to a registration deadline for a primary or election, such applications shall be transmitted to the Secretary of State at the conclusion of each business day. The Secretary of State shall forward the applications to the appropriate county board of registrars to determine the eligibility of the applicant and, if found eligible, to add the applicant's name to the list of electors and to place the applicant in the correct precinct and voting districts.
  10. Each office shall maintain such statistical records on the number of registrations and declinations as requested by the Secretary of State.
  11. Persons providing the services described in subsection (d) of this Code section shall not:
    1. Seek to influence an applicant's political preference;
    2. Display any such political preference or political party or body allegiance;
    3. Make any statement to an applicant or take any action the purpose or effect of which is to discourage the applicant from applying to register to vote; or
    4. Make any statement to an applicant or take any action the purpose or effect of which is to lead the applicant to believe that a decision to apply to register or not to apply to register to vote has any bearing on the availability of services or benefits.
  12. The Secretary of State shall have the authority to promulgate rules and regulations to provide for the transmission of voter registration applications and signatures electronically from public assistance offices, offices which provide state funded programs primarily engaged in providing services to persons with disabilities, and recruitment offices of the armed forces of the United States located within this state. Such electronically transmitted signatures shall be valid as signatures on the voter registration application and shall be treated in all respects as a manually written original signature and shall be recognized as such in any matter concerning the voter registration application.

(Code 1981, §21-2-222, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1997, p. 1021, § 7; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 17; Ga. L. 2003, p. 517, § 19.)

Administrative Rules and Regulations.

- Rules and regulations for voter registration by registrars and deputy registrars, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.03.

Registration of persons by college presidents or their designees, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.05.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 284 (1997).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-615 are included in the annotations for this Code section.

Relationship with the National Voter Registration Act of 1993.

- There was no clear textual basis in the operative language of 42 U.S.C. § 1973gg-5(a)(6) for the proviso found in O.C.G.A. § 21-2-222(f), the Georgia statute implementing the National Voter Registration Act of 1993, which limited the application of the mandatory distribution of forms to only those instances when such application, recertification, renewal, or change of address was made in person. Ga. State Conf. of the NAACP v. Kemp, F. Supp. 2d (N.D. Ga. Jan. 30, 2012).

Decision to deny the right of registration, though initially made by a registrar or deputy registrar, is to be finally made by the three registrars, and from their decision an appeal lies to the superior court. McCoy v. McLeroy, 348 F. Supp. 1034 (M.D. Ga. 1972) (decided under former Code 1933, § 34-615 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 174 et seq.

C.J.S.

- 29 C.J.S., Elections, § 69.

21-2-223. Mail voter registration application forms.

  1. The Secretary of State shall design, publish, and distribute voter registration application forms with which a person may apply to register to vote by completing and mailing the form to the Secretary of State or to the board of registrars of the person's county of residence. The Secretary of State shall forward the applications that he or she receives to the appropriate county board of registrars to determine the eligibility of the applicant and, if found eligible, to add the applicant's name to the list of electors and to place the applicant in the correct precinct and voting districts.
  2. The county boards of registrars shall obtain and maintain a supply of mail voter registration application forms for distribution and for voter registration. In addition, each state, county, and municipal office, except an office which is a designated voter registration office under Code Section 21-2-222, which has regular contact with the public shall obtain a supply of mail voter registration application forms from the Secretary of State and make such applications available for use by citizens to register to vote.
  3. The mail voter registration application forms shall be made available through governmental and private entities with particular emphasis on making such forms available for organized voter registration programs.

(Code 1981, §21-2-223, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2010, p. 914, § 9/HB 540.)

JUDICIAL DECISIONS

Injunction was properly issued against officials who rejected voter registration forms.

- Preliminary injunction was properly issued against state officials who had rejected voter registration forms that had been mailed to the Georgia Secretary of State because the plaintiffs were substantially likely to prevail in their suit and the public interest was served by the preservation of the applicants' voting rights because: (1) the Secretary of State had rejected the forms based upon the fact that they had been bundled and mailed in together, rather than individually; (2) state law had to comply with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. § 1973gg et seq.; (3) the NVRA did not prohibit registration drives or prohibit third-party submission of individual voter registration forms and specifically required that states should register all voters that timely mailed in valid voter registration forms; and (4) Georgia's anti-bundling policy did little, if anything, to prevent fraud or assist in the assessment of voter eligibility. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005).

Plaintiffs had standing to challenge rejection of voter registration forms which they mailed to the Georgia Secretary of State where: (1) the Secretary of State rejected the forms based upon the fact that the forms were bundled and mailed in together, rather than mailed individually; (2) the plaintiffs' claim, that the rejection of the forms violated their rights under the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg et seq., was sufficient to allege a legal injury-in-fact that was fairly attributable to the conduct of the state officials that were sued in the suit; and (3) the plaintiffs did not have to show that their claims were valid or that they would prevail in the suit in order to have standing to assert their claims. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005).

21-2-224. Registration deadlines; restrictions on voting in primaries; official list of electors; voting procedure when portion of county changed from one county to another.

  1. If any person whose name is not on the list of registered electors maintained by the Secretary of State under this article desires to vote at any general primary, general election, or presidential preference primary, such person shall make application as provided in this article by the close of business on the fifth Monday or, if such Monday is a legal holiday, by the close of business on the following business day prior to the date of such general primary, general election, or presidential preference primary.
  2. If any person whose name is not on the list of registered electors maintained by the Secretary of State under this article desires to vote at any special primary or special election, such person shall make application as provided in this article no later than either the close of business on the fifth day after the date of the call for the special primary or special election, excluding Saturdays, Sundays, and legal holidays of this state or the close of business on the fifth Monday prior to the date of the special primary or special election or, if such Monday is a legal holiday, by the close of business on the following business day, whichever is later; except that:
    1. If such special primary or special election is held in conjunction with a general primary, general election, or presidential preference primary, the registration deadline for such special primary or special election shall be the same as the registration deadline for the general primary, general election, or presidential preference primary in conjunction with which the special primary or special election is being conducted; or
    2. If such special primary or special election is not held in conjunction with a general primary, general election, or presidential preference primary but is held on one of the dates specified in Code Section 21-2-540 for the conduct of special elections to present a question to the voters or special primaries or elections to fill vacancies in elected county or municipal offices, the registration deadline for such a special primary or election shall be at the close of business on the fifth Monday prior to the date of the special primary or election or, if such Monday is a legal holiday, by the close of business on the following business day.
  3. Mail voter registration applications shall be deemed to have been made as of the date of the postmark affixed to such application by the United States Postal Service or, if no such postmark is affixed or if the postmark affixed by the United States Postal Service is illegible or bears no date, such application shall be deemed to have been made timely if received through the United States mail by the Secretary of State no later than the close of business on the fourth Friday prior to a general primary, general election, presidential preference primary, or special primary or special election held in conjunction with a general primary, general election, or presidential preference primary or special primary or special election held on one of the dates specified in Code Section 21-2-540 for the conduct of special elections to present questions to the voters or special primaries or special elections to fill vacancies in elected county or municipal offices or no later than the close of business on the ninth day after the date of the call, excluding Saturdays, Sundays, and legal holidays of this state, for all other special primaries and special elections.
  4. Each elector who makes timely application for registration, is found eligible by the board of registrars and placed on the official list of electors, and is not subsequently found to be disqualified to vote shall be entitled to vote in any primary or election; provided, however, that an elector, voting in the primary or primaries held by a single party for the nomination of candidates to seek public offices to be filled in an election, shall not vote in a primary held by any other party for the nomination of candidates to seek public offices to be filled in the same such election.
  5. The county board of registrars shall deliver to the municipality, upon a basis mutually agreed upon between the county board of registrars and the governing authority of the municipality, a copy of the list of electors for the municipality for the primary or election. Such list shall be delivered not earlier than the fifth Monday prior to a primary or election and not later than 21 days prior to such primary or election for the purpose of permitting the municipality to check the accuracy of the list. The municipality shall, upon receipt of the county registration list, or as soon as practicable thereafter but in no event later than five days prior to such primary or election, review such list and identify in writing to the county board of registrars any names on the electors list of persons who are not qualified to vote at such primary or election, stating the reason for disqualification. The county board of registrars shall challenge the persons identified in accordance with Code Section 21-2-228. In addition, the county board of registrars shall provide a list of inactive electors for the municipality. The municipality shall certify such lists and file with the city clerk a copy showing the names of electors entitled to vote at such primary or election.
  6. The official list of electors eligible to vote in any primary or election shall be prepared and completed at least five calendar days prior to the date of the primary or election in which the list is to be used.
  7. The official list of electors and the official list of inactive electors prepared and distributed to the poll officers of each precinct shall include only the elector's name, address, ZIP Code, date of birth, voter identification number, a designation of whether the elector registered for the first time in this state and is required to comply with Code Section 21-2-216, a designation of whether the elector registered for the first time in this state by mail and is required to comply with Code Sections 21-2-220 and 21-2-417, congressional district, state Senate district, state House district, county commission district, if any, county or independent board of education district, if any, and municipal governing authority district designations, if any, and such other voting districts, if any. The official list of electors and the official list of inactive electors prepared and distributed to the poll officers of each precinct may also include codes designating that an elector has voted by absentee ballot, has been challenged, or has been sent mail by the registrars which has been returned marked undeliverable. No person whose name does not appear on the official list of electors shall vote or be allowed to vote at any election, except as otherwise provided in this article. The county registrars shall ensure that the information required to notify poll officers that an elector registered to vote for the first time in this state by mail and must comply with subsection (c) of Code Section 21-2-220 and subsection (c) of Code Section 21-2-417 is placed on each list of electors to be used at a polling place.
  8. All persons whose names appear on the list of electors placed in the possession of the managers in each precinct and no others, except as otherwise provided in this article, shall be allowed to deposit their ballots according to law at the precinct in which they are registered.
  9. When any portion of a county or municipality is changed from one county or municipality to another, the persons who would have been qualified to vote in the county or municipality from which taken, at the time of any primary or election, shall vote in the county or municipality to which they are removed; and, if required to swear or certify, the oath or certification may be so qualified as to contain this fact. The name of such elector shall be kept and checked as provided in Code Section 21-2-228.

(c.1)An individual or organization shall promptly transmit all completed voter registration applications to the Secretary of State or the appropriate board of registrars within ten days after receiving such application or by the close of registration, whichever period is earlier. If an individual or organization receives a completed voter registration application 14 or fewer days before the close of registration, the individual or organization shall transmit the application to the Secretary of State or the appropriate board of registrars within 72 hours of the date of the execution of the application or by midnight on the close of registration, whichever period is earlier.

(Code 1981, §21-2-224, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1995, p. 1027, § 5; Ga. L. 1995, p. 1044, § 1; Ga. L. 1996, p. 145, § 7; Ga. L. 1997, p. 590, § 21; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p. 517, § 20; Ga. L. 2005, p. 253, § 25/HB 244; Ga. L. 2010, p. 914, § 10/HB 540; Ga. L. 2012, p. 995, § 17/SB 92; Ga. L. 2017, p. 697, § 9/HB 268.)

The 2017 amendment, effective July 1, 2017, in subsection (e), deleted "the chief registrar of" preceding "the municipality" near the beginning of the first sentence and near the end of the second sentence, and substituted "municipality" for "municipal registrar" near the beginning of the third and last sentences.

Administrative Rules and Regulations.

- Preparation of the electors list and use of ExpressPoll, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Voting Machines - Vote Recorders, § 183-1-12-.07.

Acceptance of voter registration applications, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.01.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-106 and 34-611 and former Code Section 21-2-220 are included in the annotations for this Code section.

Election Code controls over charter provisions.

- When determining voter registration cut-off dates, the Election Code prevails over conflicting charter provisions. 1970 Op. Att'y Gen. No. U70-165 (decided under former Code 1933, §§ 34-106 and 34-611 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Party primaries.

- This provision would preclude a person from voting in the Democratic primary for Governor and other offices listed on the ballot and then later voting in a Republican primary or run off for candidates for the same offices. 1982 Op. Att'y Gen. No. 82-53 (decided under former Code Section 21-2-220 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Right to vote in special primary or election.

- If a special primary or election is called, voters who did not register or vote previously in a regular primary are still entitled to vote in the special primary or election provided they register to vote on the fifth day after the call of such special primary or election. 1982 Op. Att'y Gen. No. 82-53 (decided under former Code Section 21-2-220 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

If a special primary is held for the United States House of Representatives, a person is not bound to vote in the same political party's primary in which the person previously voted in the regular primary. 1982 Op. Att'y Gen. No. 82-53 (decided under former Code Section 21-2-220 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 177 et seq.

C.J.S.

- 29 C.J.S., Elections, § 66 et seq.

ALR.

- Propriety of test or question asked applicant for registration as voter other than formal questions relating to specific conditions of his right to registration, 76 A.L.R. 1238.

Validity of statute limiting time period for voter registration, 56 A.L.R. 6th 523.

21-2-225. Confidentiality of original registration applications; limitations on registration data available for public inspection; data made available by Secretary of State; membership in nongovernmental entity for purpose of sharing and exchanging information to improve accuracy and efficiency of voter registration systems.

  1. Neither the original applications for voter registration nor any copies thereof shall be open for public inspection except upon order of a court of competent jurisdiction.
  2. Except as provided in Code Section 21-2-225.1, all data collected and maintained on electors whose names appear on the list of electors maintained by the Secretary of State pursuant to this article shall be available for public inspection with the exception of bank statements submitted pursuant to subsection (c) of Code Section 21-2-220 and subsection (c) of Code Section 21-2-417, the month and day of birth, the social security numbers, e-mail addresses, and driver's license numbers of the electors, and the locations at which the electors applied to register to vote, which shall remain confidential and shall be used only for voter registration purposes; provided, however, that any and all information relating to the dates of birth, social security numbers, and driver's license numbers of electors may be made available to other agencies of this state, to agencies of other states and territories of the United States, and to agencies of the federal government if the agency is authorized to maintain such information and the information is used only to identify the elector on the receiving agency's data base and is not disseminated further and remains confidential. Information regarding an elector's year of birth shall be available for public inspection.
  3. It shall be the duty of the Secretary of State to furnish copies of such data as may be collected and maintained on electors whose names appear on the list of electors maintained by the Secretary of State pursuant to this article, within the limitations provided in this article, on electronic media or computer run list or both. Notwithstanding any other provision of law to the contrary, the Secretary of State shall establish the cost to be charged for such data. The Secretary of State may contract with private vendors to make such data available in accordance with this subsection. Such data may not be used by any person for commercial purposes.
    1. The Secretary of State may become a member of a nongovernmental entity whose purpose is to share and exchange information in order to improve the accuracy and efficiency of voter registration systems. The membership of the nongovernmental entity shall be composed solely of election officials of state and territorial governments of the United States, except that such membership may also include election officials of the District of Columbia.
    2. Notwithstanding any provision of law to the contrary, the Secretary of State may share confidential and exempt information after becoming a member of such nongovernmental entity as provided in paragraph (1) of this subsection.
    3. The Secretary of State may become a member of such nongovernmental entity only if such entity is controlled and operated by the participating jurisdictions. The entity shall not be operated or controlled by the federal government or any other entity acting on behalf of the federal government. The Secretary of State must be able to withdraw at any time from any such membership in such nongovernmental entity.
    4. If the Secretary of State becomes a member of such nongovernmental entity, the Department of Driver Services shall, pursuant to an agreement with the Secretary of State, provide driver's license or identification card information related to voter eligibility to the Secretary of State for the purpose of sharing and exchanging voter registration information with such nongovernmental entity.
    5. Notwithstanding any law to the contrary, upon the Secretary of State becoming a member of a nongovernmental entity as provided in this subsection, information received by the Secretary of State from the nongovernmental entity is exempt from disclosure under Article 4 of Chapter 18 of Title 50 and any other provision of law. However, the Secretary of State may provide such information to the boards of registrars to conduct voter registration list maintenance activities.

(Code 1981, §21-2-225, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1995, p. 1027, § 6; Ga. L. 1996, p. 145, § 8; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 21; Ga. L. 2004, p. 103, § 1; Ga. L. 2005, p. 253, § 26/HB 244; Ga. L. 2008, p. 781, § 8/HB 1112; Ga. L. 2009, p. 316, § 1/HB 227; Ga. L. 2010, p. 914, § 11/HB 540; Ga. L. 2011, p. 590, § 1/HB 143; Ga. L. 2011, p. 683, § 7/SB 82; Ga. L. 2019, p. 7, § 7/HB 316.)

The 2019 amendment, effective April 2, 2019, added subsection (d).

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 58 are included in the annotations for this Code section.

Voter list correct but official proceeded in irregular manner.

- Where an ordinary (now judge of the probate court) made up the list of qualified voters in an irregular manner, the mere fact that the ordinary may have proceeded in an irregular manner would not operate to vitiate the election, where it does not also appear that the list as certified and furnished to the ordinary was in fact incorrect. Powell v. Consolidated Sch. Dist. No. 1, 26 Ga. App. 135, 105 S.E. 616 (1921) (decided under former Code 1910, § 58).

Compliance with federal Privacy Act.

- Georgia's voter registration forms do not comply with the notice requirements of § 7(b) of the Privacy Act, 5 U.S.C. § 552a, because the form requires an applicant to disclose his or her social security number. Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005).

Cited in Walls v. Garrett, 247 Ga. 640, 277 S.E.2d 903 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-401, 34-402, 34-404, 34-622, and 34-623 and former Code Sections 21-2-233 and 21-2-234 are included in the annotations for this Code section.

Responsibility to prepare all electors lists.

- The county board of registrars has both the authority and the responsibility to prepare all lists of electors used within the county to include those for the election of county commissioners. 1979 Op. Att'y Gen. No. U79-23 (decided under former Code 1933, §§ 34-401, 34-402, and 34-622 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Withholding of name because of change of residence.

- A name may not be withheld from the list of registered voters because of a change of residence unless the board of registrars is convinced by sufficient proof of a change of legal residence. 1945-47 Op. Att'y Gen. p. 275 (decided under former Code 1933, § 34-401).

Access to additional information on electors.

- The names, addresses and ZIP codes of electors must be furnished upon request for the fees set forth in former § 21-2-234. Any additional identifying information as may be collected and maintained must be made available for inspection and copying and a reasonable fee may be charged for expenses incurred or copies furnished. 1984 Op. Att'y Gen. No. 84-39 (decided under former Code Section21-2-234 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Any citizen has a right to acquire the list of electors, with whatever other information they so desire from local boards of registrars or from the Secretary of State's office without prior official restraint. 1989 Op. Att'y Gen. No. 89-13 (decided under former Code Section 21-2-234 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

The term "commercial purposes" in former § 21-2-234(c) was to be given its customary meaning and refers generally to the manufacture, transportation, traffic, and sale of goods, merchandise, and services of all kind. 1989 Op. Att'y Gen. No. 89-13 (decided under former Code Section21-2-234 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 179.

C.J.S.

- 29 C.J.S., Elections, § 75 et seq.

ALR.

- Nonregistration as affecting legality of votes cast by persons otherwise qualified, 101 A.L.R. 657.

21-2-225.1. Confidentiality of address of registered electors; term of request; procedure.

  1. Any registered elector in this state who has obtained a protective order under Code Section 19-13-4 or under a similar provision of law in another state or who has obtained a restraining order or protective order under Code Section 16-5-94 or under a similar provision of law in another state may request the board of registrars of such elector's county of residence to make such elector's residence address confidential. An elector who is a bona fide resident of a family violence shelter, as defined in Code Section 19-13-20, may request to have his or her address made confidential without having to obtain a restraining order or protective order.
  2. Upon the filing of a request with an affidavit under oath with the board of registrars by a registered elector stating that the elector has obtained a protective order under Code Section 19-13-4 or similar provision of law from another state or a restraining order or protective order under Code Section 16-5-94 or a similar provision of law of another state or, if the elector is a resident of a family violence shelter, a certification by the operators of such family violence shelter that such elector is a bona fide resident of such shelter, the registrars shall immediately review such request and supporting documents and, if such request and documentation is sufficient, shall approve the request and immediately take such steps as necessary to make the residence address of the elector confidential.
  3. A request under this Code section, once approved, shall be effective for a period of four years following its approval by the registrars and may be renewed for additional four-year periods by the filing of a new request with the supporting documentation required by subsection (b) of this Code section prior to the end of each four-year period. If the elector registers to vote in another county in this state or another state, a new request for confidentiality of the elector's residence address with the supporting documentation required in subsection (b) of this Code section shall be filed with the new county in order to continue the confidentiality of the elector's residence address or the confidentiality shall terminate.
  4. The Secretary of State shall provide by procedure, rule, or regulation for the mechanism by which such information shall be made confidential on the voter registration data base and may provide for forms for use in making such requests and for the use of alternate addresses for electors who file requests for the confidentiality of their residence addresses.
  5. Information made confidential pursuant to this Code section shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50.

(Code 1981, §21-2-225.1, enacted by Ga. L. 2009, p. 316, § 2/HB 227.)

21-2-226. Duties of county board in determining eligibility of voters; maps of municipal boundaries; notice of ineligibility; issuance of registration cards; reimbursement for postage cost.

  1. It shall be the duty of the county board of registrars to determine the eligibility of each person applying to register to vote in such county.
  2. Upon finding an elector eligible to vote in the county, the county board of registrars shall have the duty of determining and placing the elector in the proper congressional district; state Senate district; state House district; county commission district, if any; county or independent board of education district, if any; and municipal governing authority district, if any; such other voting districts, if any; and precinct.
  3. It shall be the duty of each incorporated municipality located wholly or partially within the boundaries of a county to provide a detailed map showing the municipal boundaries, municipal precinct boundaries, and voting district boundaries to the county board of registrars no later than January 1, 1995, and within 15 days of any changes in such municipal boundaries, precinct boundaries, or voting district boundaries. Upon receiving any changes in municipal boundaries, the county board of registrars shall provide to the municipality a list of all voters affected by such changes with the street addresses of such electors for the purpose of verifying the changes with the municipality. Upon receiving the list of electors affected by changes in municipal boundaries, the municipality shall immediately review the information provided by the county registrars and advise the county registrars of any discrepancies.
  4. Each person submitting an application for voter registration shall be notified of the disposition of such application. In the event that the person is found ineligible, the person shall be notified of the reasons for ineligibility. Such notices shall be sent to the person in writing by nonforwardable, first-class mail at the mailing address listed on the application.
  5. Each elector found eligible to be registered to vote by the board of registrars shall be issued a card which shall contain the elector's name and address, a block or space for the elector's signature, the date of the elector's registration, the name and location of the elector's polling place or polling places if the county and municipal polling places are not the same, and the designation of the elector's congressional district; state Senate district; state House district; county commission district, if any; county or independent board of education district, if any; and municipal governing authority district, if any, and such other voting districts, if any. On the reverse side of the card, there shall be printed instructions which shall indicate the procedure to be followed in the event of the change of address of the elector. In the event an elector changes residences within the county in which an elector is registered to vote, the elector may change such elector's address by returning the card to the board of registrars of such county indicating the new address. Upon receipt of such card, the board of registrars shall make the necessary changes in the elector's registration records and issue a new card to the elector. In the event that an elector's precinct, polling place, or voting district or districts change, a new card shall be issued to the elector reflecting such changes. When the boundaries of a precinct are changed, all affected electors shall be sent a new card prior to the next primary or election. The form of such cards shall be determined by the Secretary of State. The issuance of such cards shall be sufficient as a notification of the disposition of an application for voter registration under this Code section, provided that such cards are sent by nonforwardable, first-class mail.
  6. In the event that the registrars are required to issue voters new cards under subsection (e) of this Code section due to changes in districts or precincts as a result of reapportionment or court order, the registrars may apply to the Secretary of State prior to June 30 of each year for reimbursement of the costs of postage with respect to mailing such cards during the 12 month period ending on June 30 of that year. The Secretary of State shall receive all such applications and shall, no later than June 30 of each year, reimburse the counties for such costs from funds specifically appropriated for that purpose. In the event that the total amount of the requests for reimbursement exceeds the funds appropriated for reimbursement, the Secretary of State shall reimburse the counties on a pro rata basis. In the event that no funds are specifically appropriated for reimbursement, no such reimbursement shall be made.
  7. In the event that the registrars of a county, serving as registrars for a municipality, are required to issue voters in a municipality new cards under subsection (e) of this Code section due to changes in municipal districts or precincts, the municipality shall reimburse the county registrars for the cost of postage in mailing such cards to the voters.

(Code 1981, §21-2-226, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 22; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 18; Ga. L. 2015, p. 385, § 6-2/HB 252; Ga. L. 2017, p. 697, § 10/HB 268.)

The 2017 amendment, effective July 1, 2017, substituted "municipality" for "municipal registrar" in the middle of the second and third sentences of subsection (c).

Editor's notes.

- Ga. L. 2015, p. 385, § 1/HB 252, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act."'

Administrative Rules and Regulations.

- Acceptance of voter registration applications, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, Sec. 183-1-6-.01.

JUDICIAL DECISIONS

Cited in Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009).

21-2-227. Duty of registrars to furnish list of electors for elections held in governmental subdivisions.

Whenever the authority of a governmental subdivision within a county who is charged with the responsibility of holding elections shall request the board of registrars of the county to furnish a list of electors qualified to vote in the election involved and residing within the limits of such subdivision, it shall be the duty of the board of registrars to prepare promptly and furnish such a list at no charge.

(Code 1981, §21-2-227, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 23; Ga. L. 1998, p. 295, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 177 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 59, 75 et seq.

ALR.

- Remedy and procedure for purging voters' registration lists, 96 A.L.R. 1035.

21-2-228. Examination of electors' qualifications; subpoenas; notice and hearing; right of appeal.

  1. The board of registrars of each county or municipality shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector of the county or municipality whose name is entered upon the list of electors and shall not be limited or estopped by any action previously taken.
  2. For the purpose of determining the qualification or disqualification of applicants and electors, the board of registrars may, upon at least three days' notice, require the production of books, papers, and other material and, upon like notice, may subpoena witnesses. The board may swear any witness appearing before it. If the registrars shall differ among themselves upon any question coming before them, the concurrent votes of a majority of the registrars shall control.
  3. The sheriff, any deputy sheriff, or any lawful constable of such county or peace officer of such municipality shall serve all summonses, notices, and subpoenas issued by such registrars and placed in the hands of any such official. Such official shall receive such compensation as is provided for like services in the superior court. In case of the refusal of any person subpoenaed to attend or testify, such fact shall be reported immediately by the registrars to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify; and, on failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as allowed and paid witnesses in civil actions in the superior court.
  4. If the right of any person to remain on the list of electors is questioned by the registrars, they shall give such person at least three days' written notice of the date, time, and place of a hearing to determine such right which shall be served upon such person either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of this Code section for other notices.
  5. If, after conducting a hearing, the registrars find that the elector is not qualified to remain on the list of electors, the registrars shall remove the name of such elector from the list of electors. The elector shall be notified of such decision in writing either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of this Code section for other notices.
  6. An elector whose name is removed from the list of electors in accordance with this Code section shall have a right of appeal of such decision to the superior court of the county by filing a petition with the clerk of the superior court within ten days after the date of the decision of the registrars. A copy of such petition shall be served upon the registrars. Unless and until the decision of the registrars is reversed by the court, the decision of the registrars shall stand.

(Code 1981, §21-2-228, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 24; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Method of appeal from registration decisions, Ga. Const. 1983, Art. II, Sec. II, Para. I.

JUDICIAL DECISIONS

Appellate jurisdiction.

- Without a clear connection to a specific election, a challenge to a voter's qualifications brought under O.C.G.A. § 21-2-228 or O.C.G.A. § 21-2-229 does not come within the jurisdiction of the Supreme Court of Georgia over "cases of election contest," Ga. Const. 1983, Art. VI, Sec. VI, Para. II (2). To the extent that Jarrard v. Clayton County Bd. of Registrars, 425 S.E.2d 874 (1992), was decided as an election contest, it was overruled. Cook v. Board of Registrars, 291 Ga. 67, 727 S.E.2d 478 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-617 and former Code Sections 21-2-225 and 21-2-236 are included in the annotations for this Code section.

Removal of name based on receipt of returned notice.

- A registrar is not authorized to remove a person's name from the list of electors based on the registrar's receipt of a returned letter notifying such person of a hearing under former § 21-2-225. 1982 Op. Att'y Gen. No. 82-23 (decided under former Code Section21-2-225 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Although a registrar may well question voter eligibility based solely on returned mail from the voter's address of record, it is imperative that all reasonable measures be taken to maximize the possibility of receipt by the elector of the notice of hearing, e.g., mail forwarding. 1982 Op. Att'y Gen. No. 82-23 (decided under former Code Section 21-2-225 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Procedure for disqualification of convicted voter.

- As the Election Code does not establish a procedure for automatic disqualification of voters convicted of a crime involving moral turpitude, it is suggested that written notice be given to the elector as required by former Code 1933, § 34-617, or, if the list has already been prepared, the voter should be called upon to show cause why the voter's name should not be removed from the voters list. 1974 Op. Att'y Gen. No. 74-128 (decided prior to 1983 amendment of § 21-2-219; decided under former Code 1933, § 34-617 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Questioning of residence of elector proper.

- Inasmuch as the law clearly states that an elector be registered in the election district in which the elector resides, it would be proper for the board of registrars to question the qualifications of any elector whom the board believes to be residing outside the district in which such person is registered. 1968 Op. Att'y Gen. No. 68-220 (decided under former Code 1933, §§ 34-408, 34-603, 34-604 and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Person who moves away from a county and makes a home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Board of registrars has the right and duty to make changes in its records if it learns from voters' certificates of changes of names or addresses of voters. 1970 Op. Att'y Gen. No. U70-12 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Delivery of absentee ballot awaiting completion of proceedings.

- Where the registration card corresponding to an otherwise proper application for an absentee ballot is signed but is otherwise incomplete in some respect, until the completion of proceedings in accordance with former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627, the registrar may not refuse to deliver the absentee ballot unless the absence of information sought by the registration card on file gives rise to a question as to the applicant's identity. 1976 Op. Att'y Gen. No. 76-2 (decided under former Code 1933, §§ 34-408, 34-602, 34-603, 34-604, and 34-627 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Review of decision to remove name of elector from list.

- An elector whose name has been removed from the list of electors upon a challenge by a board of registrars after an administrative hearing is entitled to have that decision reviewed by a superior court. 1992 Op. Att'y Gen. No. 92-16 (decided under former Code Section 21-2-236 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 174 et seq.

C.J.S.

- 29 C.J.S., Elections, §§ 69, 70 et seq.

ALR.

- Nonregistration as affecting legality of votes cast by persons otherwise qualified, 101 A.L.R. 657.

Constitutionality of voter participation provisions for primary elections, 120 A.L.R.5th 125.

Validity of statute requiring proof and disclosure of information as condition of registration to vote, 48 A.L.R.6th 181.

21-2-229. Challenge of applicant for registration by other electors; notice and hearing; right of appeal.

  1. Any elector of a county or municipality may challenge the qualifications of any person applying to register to vote in the county or municipality and may challenge the qualifications of any elector of the county or municipality whose name appears on the list of electors. Such challenges shall be in writing and shall specify distinctly the grounds of the challenge.
  2. Upon such challenge being filed with the board of registrars, the registrars shall set a hearing on such challenge. Notice of the date, time, and place of the hearing shall be served upon the person whose qualifications are being challenged along with a copy of such challenge and upon the elector making the challenge. The person being challenged shall receive at least three days' notice of the date, time, and place of the hearing. Such notice shall be served either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of Code Section 21-2-228.
  3. The burden shall be on the elector making the challenge to prove that the person being challenged is not qualified to remain on the list of electors. The board of registrars shall have the authority to issue subpoenas for the attendance of witnesses and the production of books, papers, and other material upon application by the person whose qualifications are being challenged or the elector making the challenge. The party requesting such subpoenas shall be responsible to serve such subpoenas and, if necessary, to enforce the subpoenas by application to the superior court. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as allowed and paid witnesses in civil actions in the superior court.
  4. After the hearing provided for in this Code section, the registrars shall determine said challenge and shall notify the parties of their decision. If the registrars uphold the challenge, the person's application for registration shall be rejected or the person's name removed from the list of electors, as appropriate. The elector shall be notified of such decision in writing either by first-class mail addressed to the mailing address shown on the person's voter registration records or in the manner provided in subsection (c) of Code Section 21-2-228 for other notices.
  5. Either party shall have a right of appeal from the decision of the registrars to the superior court by filing a petition with the clerk of the superior court within ten days after the date of the decision of the registrars. A copy of such petition shall be served upon the other parties and the registrars. Unless and until the decision of the registrars is reversed by the court, the decision of the registrars shall stand.

(Code 1981, §21-2-229, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1997, p. 590, § 25; Ga. L. 1998, p. 295, § 1.)

JUDICIAL DECISIONS

Appellate jurisdiction.

- Without a clear connection to a specific election, a challenge to a voter's qualifications brought under O.C.G.A. § 21-2-228 or O.C.G.A. § 21-2-229 does not come within the jurisdiction of the Supreme Court of Georgia over "cases of election contest," Ga. Const. 1983, Art. VI, Sec. VI, Para. II (2). To the extent that Jarrard v. Clayton County Bd. of Registrars, 425 S.E.2d 874 (1992), was decided as an election contest, it was overruled. Cook v. Board of Registrars, 291 Ga. 67, 727 S.E.2d 478 (2012).

21-2-230. Challenge of persons on list of electors by other electors; procedure; hearing; right of appeal.

  1. Any elector of the county or municipality may challenge the right of any other elector of the county or municipality, whose name appears on the list of electors, to vote in an election. Such challenge shall be in writing and specify distinctly the grounds of such challenge. Such challenge may be made at any time prior to the elector whose right to vote is being challenged voting at the elector's polling place or, if such elector cast an absentee ballot, prior to 5:00 P.M. on the day before the election; provided, however, that challenges to persons voting by absentee ballot in person at the office of the registrars or the absentee ballot clerk shall be made prior to such person's voting.
  2. Upon the filing of such challenge, the board of registrars shall immediately consider such challenge and determine whether probable cause exists to sustain such challenge. If the registrars do not find probable cause, the challenge shall be denied. If the registrars find probable cause, the registrars shall notify the poll officers of the challenged elector's precinct or, if the challenged elector voted by absentee ballot, notify the poll officers at the absentee ballot precinct and, if practical, notify the challenged elector and afford such elector an opportunity to answer.
  3. If the challenged elector appears at the polling place to vote, such elector shall be given the opportunity to appear before the registrars and answer the grounds of the challenge.
  4. If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and if the challenge is based on grounds other than the qualifications of the elector to remain on the list of electors, no further action by the registrars shall be required.
  5. If the challenged elector cast an absentee ballot and it is not practical to conduct a hearing prior to the close of the polls and the challenge is based upon grounds other than the qualifications of the elector to remain on the list of electors, the absentee ballot shall be treated as a challenged ballot pursuant to subsection (e) of Code Section 21-2-386. No further action by the registrars shall be required.
  6. If the challenged elector does not cast an absentee ballot and does not appear at the polling place to vote and the challenge is based on the grounds that the elector is not qualified to remain on the list of electors, the board of registrars shall proceed to hear the challenge pursuant to Code Section 21-2-229.
  7. If the challenged elector cast an absentee ballot and the challenge is based upon grounds that the challenged elector is not qualified to remain on the list of electors, the board of registrars shall proceed to conduct a hearing on the challenge on an expedited basis prior to the certification of the consolidated returns of the election by the election superintendent. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.
  8. If the challenged elector appears at the polls to vote and it is practical to conduct a hearing on the challenge prior to the close of the polls, the registrars shall conduct such hearing and determine the merits of the challenge. If the registrars deny the challenge, the elector shall be permitted to vote in the election notwithstanding the fact that the polls may have closed prior to the time the registrars render their decision and the elector can actually vote, provided that the elector proceeds to vote immediately after the decision of the registrars. If the registrars uphold the challenge, the challenged elector shall not be permitted to vote and, if the challenge is based upon the grounds that the elector is not qualified to remain on the list of electors, the challenged elector's name shall be removed from the list of electors.
  9. If the challenged elector appears at the polls to vote and it is not practical to conduct a hearing prior to the close of the polls or if the registrars begin a hearing and subsequently find that a decision on the challenge cannot be rendered within a reasonable time, the challenged elector shall be permitted to vote by casting a challenged ballot on the same type of ballot that is used by the county or municipality for provisional ballots. Such challenged ballot shall be sealed in double envelopes as provided in subsection (a) of Code Section 21-2-419 and, after having the word "Challenged," the elector's name, and the alleged cause of the challenge written across the back of the outer envelope, the ballot shall be deposited by the person casting such ballot in a secure, sealed ballot box notwithstanding the fact that the polls may have closed prior to the time the registrars make such a determination, provided that the elector proceeds to vote immediately after such determination of the registrars. In such cases, if the challenge is based upon the grounds that the challenged elector is not qualified to remain on the list of electors, the registrars shall proceed to finish the hearing prior to the certification of the consolidated returns of the election by the election superintendent. If the challenge is based on other grounds, no further action shall be required by the registrars. The election superintendent shall not certify such consolidated returns until such hearing is complete and the registrars have rendered their decision on the challenge. If the registrars deny the challenge, the superintendent shall proceed to certify the consolidated returns. If the registrars uphold the challenge, the name of the challenged elector shall be removed from the list of electors and the ballot of the challenged elector shall be rejected and not counted and, if necessary, the returns shall be adjusted to remove any votes cast by such elector. The elector making the challenge and the challenged elector may appeal the decision of the registrars in the same manner as provided in subsection (e) of Code Section 21-2-229.

(Code 1981, §21-2-230, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 6, 30; Ga. L. 2000, p. 135, § 1; Ga. L. 2003, p. 517, § 22; Ga. L. 2005, p. 253, § 27/HB 244; Ga. L. 2010, p. 914, § 12/HB 540; Ga. L. 2012, p. 995, § 18/SB 92; Ga. L. 2019, p. 7, § 8/HB 316.)

The 2019 amendment, effective April 2, 2019, substituted "ballot clerk shall" for "ballot clerk whose vote is cast on a DRE unit must" near the end of the last sentence of subsection (a).

Law reviews.

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

JUDICIAL DECISIONS

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), appeal dismissed, 282 Ga. 865, 655 S.E.2d 580 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 34-605, are included in the annotations for this Code section.

One who moves away from a county forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56 (decided under former Code 1933, § 34-605).

Notice of challenge.

- The registrars are required by law to give notice to the person whose right to appear on the voters list is questioned either by the registrars or by any citizen. The notice is to be in writing and served upon the person either personally or by leaving the same at the person's most notorious place of abode. 1945-47 Op. Att'y Gen. p. 242 (decided under former Code 1933, § 34-605).

Service of challenge.

- A notice of challenge of a registered voter is served by the sheriff, the deputy, or a lawful constable. The costs of service are paid from the county treasury. 1945-47 Op. Att'y Gen. p. 242 (decided under former Code 1933, § 34-605).

Proof of disqualification required for removal from voters list.

- The registrars may not remove the name of a challenged voter from the voters list except upon legal proof of disqualification. 1945-47 Op. Att'y Gen. p. 244 (decided under former Code 1933, § 34-605).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 1793.

C.J.S.

- 29 C.J.S., Elections, § 75 et seq.

21-2-231. Lists of persons convicted of felonies, noncitizens, mentally incompetent, and deceased persons provided to Secretary of State and Council of Superior Court Clerks; removal of names from list of electors; obtain information about deceased; timing; list of inactive voters provided to Council of Superior Court Clerks.

  1. Unless otherwise notified by the Secretary of State, the Georgia Crime Information Center shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State and The Council of Superior Court Clerks of Georgia a complete list of all persons, including dates of birth, social security numbers, and other information as prescribed by the Secretary of State or The Council of Superior Court Clerks of Georgia, who were convicted of a felony in this state since the preceding reporting period. The Secretary of State or The Council of Superior Court Clerks of Georgia may, by agreement with the commissioner of corrections and the commissioner of community supervision, obtain criminal information relating to the conviction, sentencing, and completion of sentencing requirements of felonies. Additionally, the Secretary of State and The Council of Superior Court Clerks of Georgia shall be authorized to obtain such criminal information relating to Georgia electors convicted of a felony in another state, if such information is available.
  2. The judge of the probate court of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who were declared mentally incompetent during the preceding calendar month in the county and whose voting rights were removed.
    1. Upon receipt of the lists described in subsections (a.1) and (b) of this Code section, the Secretary of State shall transmit the names of such persons whose names appear on the list of electors to the appropriate county board of registrars who shall remove all such names from the list of electors and shall mail a notice of such action and the reason therefor to the last known address of such persons by first-class mail.
    2. Upon receipt of the list described in subsection (a) of this Code section and the lists of persons convicted of felonies in federal courts received pursuant to 52 U.S.C. Section 20507(g), the Secretary of State shall transmit the names of such persons whose names appear on the lists of electors to the appropriate county board of registrars who shall mail a notice to the last known address of each such person by first-class mail, stating that the board of registrars has received information that such person has been convicted of a felony and will be removed from the list of electors 30 days after the date of the notice unless such person requests a hearing before the board of registrars on such removal.
  3. Unless otherwise notified by the Secretary of State, the local registrar of vital statistics of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who died during the preceding calendar month in the county. The Secretary of State may, by agreement with the commissioner of public health, obtain such information from the state registrar of vital statistics. Additionally, the Secretary of State is authorized to obtain such lists of deceased Georgia electors, if possible, from other states.
  4. Upon receipt of the lists described in subsection (d) of this Code section, the Secretary of State or his or her designated agent shall remove all such names of deceased persons from the list of electors and shall notify the registrar in the county where the deceased person was domiciled at the time of his or her death.
  5. County registrars shall initiate appropriate action regarding the right of an elector to remain on the list of qualified registered voters within 60 days after receipt of the information described in this Code section. Failure to take such action may subject the registrars or the county governing authority for whom the registrars are acting to a fine by the State Election Board.
  6. The Secretary of State shall provide to The Council of Superior Court Clerks of Georgia not later than the last day of each month all information enumerated in subsections (b) through (d) of this Code section and Code Section 21-2-232 and a list of voters who have failed to vote and inactive voters, as identified pursuant to Code Sections 21-2-234 and 21-2-235. Such data shall only be used by the council, the council's vendors, superior court clerks, and jury clerks for maintenance of state-wide master jury lists and county master jury lists. Such data shall be provided to the council or its vendors in the electronic format required by the council for such purposes.

(a.1)The clerk of the superior court of each county shall, on or before the tenth day of each month, prepare and transmit to the Secretary of State, in a format prescribed by the Secretary of State, a complete list of all persons, including addresses, ages, and other identifying information as prescribed by the Secretary of State, who identify themselves as not being citizens of the United States during their qualification to serve as a juror during the preceding calendar month in that county.

(e.1)County registrars may obtain information about persons who died from obituaries published by local newspapers, death certificates, verifiable knowledge of the death, and information provided in writing and signed by a family member or members of the deceased person. County registrars shall determine if such deceased person's name appears on the list of electors and, if so, shall remove such name from the list of electors and shall send by first class mail to the mailing address shown on the elector's voter registration records a notice of such action and the reason therefor.

(Code 1981, §21-2-231, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 9; Ga. L. 1997, p. 590, § 26; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 7, 31; Ga. L. 1999, p. 52, § 10; Ga. L. 2001, p. 269, § 14; Ga. L. 2005, p. 253, § 28/HB 244; Ga. L. 2008, p. 781, § 9/HB 1112; Ga. L. 2009, p. 327, § 1/HB 549; Ga. L. 2009, p. 453, § 1-6/HB 228; Ga. L. 2011, p. 59, § 1-65/HB 415; Ga. L. 2011, p. 705, § 6-5/HB 214; Ga. L. 2012, p. 995, § 19/SB 92; Ga. L. 2014, p. 451, § 9/HB 776; Ga. L. 2015, p. 422, § 5-52/HB 310; Ga. L. 2019, p. 7, § 9/HB 316.)

The 2019 amendment, effective April 2, 2019, redesignated the existing provisions of subsection (c) as paragraph (c)(1); substituted "subsections (a.1), and (b) of this Code section" for "subsections (a), (a.1) and (b) of this Code section and the lists of persons convicted of felonies in federal courts received pursuant to 42 U.S.C. Section 1973gg-6(g)" in the middle of paragraph (c)(1); and added paragraph (c)(2).

Cross references.

- Purging list by using list of persons for whom death certificates filed, § 31-10-15.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, a comma was deleted following "subsections (a.1)" in paragraph (c)(1).

Editor's notes.

- Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

U.S. Code.

- The National Voter Registration Act of 1993 is codified at 42 U.S.C. Section 1973gg-7.

Section 20507 of Title 52 U.S.C., referred to in this Code section, concerns the requirements with respect to administration of voter registration.

Law reviews.

- For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 96 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-203, 34-204 and 34-621 and former Code Section 21-2-219 are included in the annotations for this Code section.

Procedure for disqualification of convicted voter.

- The Election Code does not establish a procedure for the automatic disqualification of a voter who has been convicted of a crime involving moral turpitude; therefore, it is suggested that written notice be given to the elector as required by former Code 1933, § 34-617 (see now O.C.G.A. § 21-2-225), or, if the list has already been prepared, the voter should be called upon to show cause why the voter's name should not be removed from the voters list. 1974 Op. Att'y Gen. No. 74-128 (decided prior to 1983 amendment of § 21-2-219 and decided under former Code 1933, §§ 34-203, 34-204 and 34-621 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Privacy Act of 1974 (5 U.S.C. § 552a note) did not alter the powers conferred or obligations imposed by former Code 1933, § 34-621 (see now O.C.G.A. § 21-2-232). 1976 Op. Att'y Gen. No. 76-6 (decided under former Code 1933, §§ 34-203, 34-204 and 34-621 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 179.

C.J.S.

- 29 C.J.S., Elections, § 75 et seq.

ALR.

- Governing law as to existence or character of offense for which one has been convicted in a federal court, or court of another state, as bearing upon disqualification to vote, hold office, practice profession, sit on jury, or the like, 175 A.L.R. 784.

21-2-232. Removal of elector's name from list of electors.

  1. An elector may request to have such elector's name removed from the list of electors by making a written request to the registrars of such elector's county of residence. Upon receipt of such request, the registrars shall remove such elector's name from the list of electors and shall confirm such removal by written notice by first-class mail sent to the address on the elector's registration records.
    1. When an elector of this state moves to another state and registers to vote and the registration officials in such state send a notice of cancellation reflecting the registration of the elector in the other state, which includes a copy of such elector's voter registration application bearing the elector's signature, the Secretary of State or the board of registrars, as the case may be, shall remove such elector's name from the list of electors. It shall not be necessary to send a confirmation notice to the elector in such circumstances.
    2. When an elector of this state moves to another state and the registration officials in such other state or a nongovernmental entity as described in subsection (d) of Code Section 21-2-225 sends a notice of cancellation or other information indicating that the elector has moved to such state but such notice or information does not include a copy of such elector's voter registration application in such other state bearing the elector's signature, the Secretary of State or the board of registrars, as the case may be, shall send a confirmation notice to the elector as provided in Code Section 21-2-234.

(Code 1981, §21-2-232, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2019, p. 7, § 10/HB 316.)

The 2019 amendment, effective April 2, 2019, substituted the present provisions of subsection (b) for the former provisions, which read: "When an elector of this state moves to another county or state and registers to vote and the registration officials send a notice of cancellation reflecting the registration of the elector in the other county or state, the Secretary of State or the board of registrars, as the case may be, shall remove such elector's name from the list of electors. It shall not be necessary to send a confirmation notice to the elector in such circumstances."; and added paragraph (b)(2).

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

RESEARCH REFERENCES

ALR.

- Validity of statute providing for purging voter registration lists of inactive voters, 51 A.L.R.6th 287.

21-2-233. Comparison of change of address information supplied by United States Postal Service with electors list; removal from list of electors; notice to electors.

  1. The Secretary of State is authorized to cause at his or her discretion the official list of electors to be compared to the change of address information supplied by the United States Postal Service through its licensees periodically for the purpose of identifying those electors whose addresses have changed.
  2. If it appears from the change of address information supplied by the licensees of the United States Postal Service that an elector whose name appears on the official list of electors has moved to a different address in the county in which the elector is presently registered, the list of electors shall be changed to reflect the new address and the elector shall be sent a notice of the change by forwardable mail at the elector's old address with a postage prepaid, preaddressed return form by which the elector may verify or correct the address information. The registrars may also send a notice of the change by forwardable mail to the elector's new address with a postage prepaid, preaddressed return form by which the elector may verify or correct the address information.
  3. If it appears from the change of address information supplied by the licensees of the United States Postal Service that an elector whose name appears on the official list of electors has moved to a different address outside of the boundaries of the county or municipality in which the elector is presently registered, such elector shall be sent a confirmation notice as provided in Code Section 21-2-234 at the old address of the elector. The registrars may also send a confirmation notice to the elector's new address. If the elector confirms the change of address to an address outside of the State of Georgia, the elector's name shall be removed from the appropriate list of electors. If the elector confirms the change of address to an address outside of the boundaries of the county or municipality in which the elector is presently registered, but still within the State of Georgia, the elector's registration shall be transferred to the new county or municipality. The Secretary of State or the registrars shall forward the confirmation card to the registrars of the county in which the elector's new address is located and the registrars of the county of the new address shall update the voter registration list to reflect the change of address. If the elector responds to the notice and affirms that the elector has not moved, the elector shall remain on the list of electors at the elector's current address. If the elector fails to respond to the notice within 30 days after the date of the notice, the elector shall be transferred to the inactive list provided for in Code Section 21-2-235.
  4. Whenever an elector's name is removed from the list of electors by the county registrars because the elector has furnished in writing to the registrar a residence address that is located outside of the State of Georgia, the registrars shall notify the elector in writing at the elector's new address that the elector's name is being deleted from the list of electors.
  5. Nothing in this Code section shall prevent the removal from the list of electors of an elector for ineligibility to vote.

(Code 1981, §21-2-233, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1996, p. 145, § 10; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, § 19; Ga. L. 2003, p. 517, § 23; Ga. L. 2005, p. 253, § 29/HB 244; Ga. L. 2012, p. 995, § 20/SB 92; Ga. L. 2017, p. 697, § 11/HB 268.)

The 2017 amendment, effective July 1, 2017, deleted the former second and third sentences of subsection (d), which read: "Whenever an elector's registration is transferred by the county registrars to another county in this state because the elector has furnished in writing to the registrar a residence address that is located in this state outside of the elector's present county of registration in accordance with subsection (c) of this Code section, the registrars of the county of the elector's former residence shall notify the elector in writing at the elector's new address that the elector's registration is being transferred to the new address. The registrars of the county of the elector's new address shall provide the elector with a new registration card pursuant to Code Section 21-2-226."

21-2-234. Electors who have failed to vote and with whom there has been no contact in three years; confirmation notice requirements and procedure; time for completion of list maintenance activities.

    1. As used in this Code section and Code Section 21-2-235, the term "no contact" shall mean that the elector has not filed an updated voter registration card, has not filed a change of name or address, has not signed a petition which is required by law to be verified by the election superintendent of a county or municipality or the Secretary of State, has not signed a voter's certificate, has not submitted an absentee ballot application or voted an absentee ballot, and has not confirmed the elector's continuation at the same address during the preceding five calendar years.
    2. In the first six months of each odd-numbered year, the Secretary of State shall identify all electors whose names appear on the list of electors with whom there has been no contact during the preceding five calendar years and who were not identified as changing addresses under Code Section 21-2-233. The confirmation notice described in this Code section shall be sent to each such elector during each odd-numbered year. Such notices shall be sent by forwardable, first-class mail.
  1. When mailings to electors whose names appear on the list of electors, including, but not limited to, acknowledgments under Code Section 21-2-226, are returned undeliverable by the United States Postal Service, the confirmation notice described in this Code section shall be sent to such electors.
  2. The confirmation notice shall be a postage prepaid, preaddressed return card on which an elector may state such elector's current address and which also includes a notice which states substantially the following:
    1. If the elector has not changed addresses or has changed addresses within the county or municipality in which the elector is currently registered, the elector must return the card with the updated information, if any, within 30 days after the date of the notice; and
    2. If the card is not returned within 30 days after the date of the notice, the elector's name shall be transferred to the inactive list of electors provided for in Code Section 21-2-235.
  3. If the elector returns the card and shows that he or she has changed residence to a place outside of the State of Georgia, the elector's name shall be removed from the appropriate list of electors.If the elector confirms his or her change of address to an address outside of the boundaries of the county or municipality in which the elector is currently registered, but still within the State of Georgia, the elector's registration shall be transferred to the new county or municipality.The Secretary of State or the registrars shall forward the confirmation card to the registrars of the county in which the elector's new address is located, and the registrars of the county of the new address shall update the voter registration list to reflect the change of address.
  4. If the elector returns the card and states that the elector has changed residences within the county or municipality in which the elector is currently registered, the elector shall remain on the list of electors, the registration records shall be corrected to reflect such new address, and a new voter identification card shall be issued pursuant to Code Section 21-2-226.
  5. If such elector returns the card and confirms that such elector continues to reside at the current address at which such elector is registered, the fact of such confirmation shall be recorded and the elector shall remain on the list of electors.
  6. If the elector fails to return the card within 30 days after the date of the notice, the elector shall be transferred to the inactive list provided for in Code Section 21-2-235.
  7. Nothing in this Code section shall prevent the removal from the list of electors of an elector for ineligibility to vote.
  8. List maintenance activities pursuant to this Code section and Code Section 21-2-233 shall be completed not later than 90 days prior to a general primary or general election for federal offices or a presidential preference primary. This subsection shall not apply to notices sent pursuant to subsection (b) of this Code section.

(Code 1981, §21-2-234, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1996, p. 26, § 1; Ga. L. 1997, p. 649, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 2017, p. 697, § 12/HB 268; Ga. L. 2019, p. 7, § 11/HB 316.)

The 2017 amendment, effective July 1, 2017, substituted the present provisions of subsection (d) for the former provisions, which read: "If the elector returns the card and shows that he or she has changed residence to a place outside of the boundaries of the county or municipality in which the elector is currently registered, the elector's name shall be removed from the appropriate list of electors and information shall be sent to the elector explaining how the elector can continue to be eligible to vote.".

The 2019 amendment, effective April 2, 2019, substituted "five" for "three" near the end of paragraph (a)(1) and in the first sentence of paragraph (a)(2) and inserted "has not submitted an absentee ballot application or voted an absentee ballot," in the middle of paragraph (a)(1).

Law reviews.

- For article, "Black and White Make Gray: Common Cause v. Kemp, What's the Trigger for Purging Voters?," see 69 Mercer L. Rev. 947 (2018). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

21-2-235. Inactive list of electors.

  1. In addition to the official list of electors, the Secretary of State shall also maintain an inactive list of electors. Notwithstanding any other provision of law to the contrary, the names of electors on the inactive list of electors shall not be counted in computing the number of ballots required for an election, the number of voting devices needed for a precinct, the number of electors required to divide or constitute a precinct, or the number of signatures needed on any petition. However, any elector whose name appears on the inactive list shall be eligible to sign a petition and such petition signature, if valid and regardless of the validity of the petition as a whole, shall be sufficient to return the elector to the official list of electors if the elector still resides at the address listed on the elector's registration records and shall be grounds to proceed under Code Section 21-2-234 to confirm the change of address of the elector if the elector provides a different address from the address which appears on the elector's registration records.
  2. An elector placed on the inactive list of electors shall remain on such list until the day after the second November general election held after the elector is placed on the inactive list of electors. If the elector makes no contact, as defined in Code Section 21-2-234, during that period, the elector shall be removed from the inactive list of electors. Not less than 30 nor more than 60 days prior to the date on which the elector is to be removed from the inactive list of electors, the board of registrars shall mail a notice to the address on the elector's registration record.
  3. An elector whose name is on the inactive list of electors may vote:
    1. If the elector has not changed residences, at the polling place of such elector's last address upon affirming in writing that such elector still resides at the address shown on such elector's registration records;
    2. If the elector has moved to an address within the county in the same precinct, such elector may vote at the polling place of such elector's last address upon affirming in writing that such elector resides in the county by completing a change of address card affirming the new address within the county; or
    3. If the elector has moved to an address within the county or municipality in a different precinct, such elector may vote at the polling place of such elector's last address, for that election and any runoffs resulting from such election only, upon affirming in writing that such elector still resides in the county or municipality and completing a change of address card affirming the new address within the county or municipality.
  4. If an elector whose name appears on the inactive list of electors appears at the polls and votes as provided under subsection (c) of this Code section, the board of registrars shall transfer the elector's name back to the official list of electors and shall make any necessary corrections in the elector's registration records.
  5. In addition to the official list of electors provided to each polling place, there shall also be provided an inactive list of electors.

(Code 1981, §21-2-235, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1995, p. 8, § 1; Ga. L. 1997, p. 649, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 24; Ga. L. 2010, p. 914, § 13/HB 540; Ga. L. 2019, p. 7, § 12/HB 316.)

The 2019 amendment, effective April 2, 2019, added the third sentence of subsection (b).

Cross references.

- Opening of public records to inspection by members of public generally, § 50-18-70.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 34-633 and 34-1101 and Code Section 21-2-242 are included in the annotations for this Code section.

Board of registrars could sell surplus voters' lists. 1971 Op. Att'y Gen. No. U71-140 (decided under former Code 1933, §§ 34-633 and 34-1101 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

Access to information on electors.

- The names, addresses, and ZIP codes of electors must be furnished upon request for the fees set forth in former § 21-2-234. Any additional identifying information as may be collected and maintained must be made available for inspection and copying and a reasonable fee may be charged for expenses incurred or copies furnished. 1984 Op. Att'y Gen. No. 84-39 (decided under former Code Section21-2-242 as it read prior to the 1994 repeal and reenactment by Ga. L. 1994, p. 1443, § 3).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Elections, § 80.

21-2-236. Periods of retention of registration cards, applications, and records of list maintenance activities; rules and regulations regarding safekeeping and maintenance of electronic records.

  1. The voter registration cards of electors whose names appear on either the official list of electors or the list of inactive electors shall be retained on file as long as the elector remains on such lists and for a period of two years following the removal from the lists; provided, however, that an original voter registration card may be destroyed if an image of the face of the card is stored electronically.
  2. The registration applications of persons whose applications were rejected and all related material and records, or electronic facsimiles thereof, shall be retained on file for a period of two years after the date of the rejection.
  3. All records concerning list maintenance activities under Code Sections 21-2-233 and 21-2-234 shall be maintained for a period of two years and shall be available for public inspection and copying, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular elector is registered. Such records shall contain the name and address of all electors to whom confirmation notices are sent and information concerning whether each such elector has responded to such notice.
  4. The State Election Board shall adopt rules and regulations regarding the safekeeping and maintenance of electronic records of voter registration records maintained under this Code section.

(Code 1981, §21-2-236, enacted by Ga. L. 1994, p. 1443, § 3; Ga. L. 1998, p. 295, § 1; Ga. L. 2012, p. 995, § 21/SB 92.)

Cross references.

- Maintenance and disposition of public records generally, § 50-18-90 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 174 et seq.

C.J.S.

- 29 C.J.S., Elections, § 69.

ARTICLE 7 PRECINCTS AND POLLING PLACES

OPINIONS OF THE ATTORNEY GENERAL

Implementation of voting precinct boundary changes.

- With respect to counties having a population of 250,000 or less according to the United States Decennial Census of 1970 or any such future census, it is the superintendent who implements the voting precinct boundary changes set forth in O.C.G.A. § 21-2-260 et seq., notwithstanding any local Act establishing the governing authority as the entity implementing such changes. 1983 Op. Att'y Gen. No. 83-40.

21-2-260. Designation of precincts.

  1. Each election district existing as of December 31, 1982, shall constitute a separate precinct until and unless changed as provided in this article.
  2. The governing authority of each municipality shall determine and establish the number and boundaries of municipal voting precincts in accordance with the provisions of this article. Insofar as practicable, the precincts shall be the same as those for state and county elections.

(Orig. Code 1863, § 1231; Code 1868, § 1312; Code 1873, § 1285; Code 1882, § 1285; Ga. L. 1893, p. 29, § 1; Civil Code 1895, § 69; Civil Code 1910, § 79; Code 1933, § 34-1301; Code 1933, § 34-701, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1982, p. 1512, § 2; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Further provisions regarding authority of municipalities to reapportion election districts, § 36-35-4.1.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-601 are included in the annotations for this Code section.

If council members elected by wards, each ward should be separate election district (now precinct).

- If a municipality requires that each of its council members be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district (now precinct). 1969 Op. Att'y Gen. No. 69-399 (decided under former Code 1933, § 34A-601).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 8.

C.J.S.

- 29 C.J.S., Elections, § 81 et seq.

21-2-261. Change in boundaries of precinct; creation of new precincts.

  1. The superintendent of a county or the governing authority of a municipality may, as provided in Code Section 21-2-262, divide or redivide any precinct in that county or municipality into two or more precincts of compact and contiguous territory, or alter the bounds of any precinct in that county or municipality, or form a precinct out of two or more adjoining precincts or parts of precincts in that county or municipality, or consolidate adjoining precincts in that county or municipality, so as to suit the convenience of the electors and to promote the public interests.
  2. No new precinct shall be formed that shall contain less than 100 electors.
  3. The bounds of a precinct shall not be altered on a day in which a primary or election is held, or during the period of 60 days prior to any general primary or election, or during the period of 30 days prior to any special primary or election. The superintendent of a county or the governing authority of a municipality shall promptly notify the board of registrars of any change in the bounds of precincts.
  4. Any precinct established or altered under the provisions of this article must conform with the requirements of subsection (a) of Code Section 21-2-261.1.

(Code 1933, § 34-702, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1982, p. 1512, § 2; Ga. L. 1996, p. 145, § 11; Ga. L. 1998, p. 295, § 1.)

Cross references.

- Further provisions regarding authority of municipalities to reapportion election districts, § 36-35-4.1.

Administrative Rules and Regulations.

- Precincts, changes in boundaries, notification of electors, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Election Districts and Polling Places, § 183-1-7-.01.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933 § 34A-602 are included in the annotations for this Code section.

Time limit provisions for altering election precinct boundaries.

- It is only where the governing authority of the municipality seeks to alter the bounds of municipal election districts (now precincts) that the 30-day and 60-day time limit provisions of former Code 1933, § 34A-602 are triggered. Wall v. Board of Elections, 242 Ga. 566, 250 S.E.2d 408 (1978) (decided under former Code 1933, § 34A-602).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 8 et seq.

C.J.S.

- 29 C.J.S., Elections, § 83.

21-2-261.1. Boundary requirements for precincts.

  1. All voting precincts established or altered under the provisions of this article shall consist of areas which are bounded on all sides only by:
    1. Visible features which are readily distinguishable upon the ground (such as streets, railroad tracks, streams, lakes, and ridges) and which are indicated upon official Department of Transportation maps, current census maps, city or county planning maps, official municipal maps, official county maps, or any combination of such maps;
    2. The boundaries of public parks;
    3. The boundaries of public school grounds;
    4. The boundaries of churches;
    5. The boundaries of counties and incorporated municipalities; or
    6. The boundaries of restricted access residential communities.
  2. The superintendent of a county or the governing authority of a municipality shall notify the board of registrars within ten days after such changes are adopted.
  3. The superintendent of a county or the governing authority of a municipality shall file with the Secretary of State and the Legislative and Congressional Reapportionment Office:
    1. A map reflecting any changes in precincts within 20 days after the changes are made;
    2. A copy of any communications to or from the United States Department of Justice relating to any precincts within 20 days after such communication is sent or received;
    3. A copy of any pleading initiating a court action potentially affecting any precincts within 30 days after it is filed;
    4. A copy of any court order affecting any precincts within 20 days after it is entered;
    5. For precincts that use the boundaries of a restricted access residential community, a map clearly delineating the boundaries of the community and clearly depicting the streets contained within such community and a list of the streets within such community and the address ranges of such streets; and
    6. Any other documentation necessary to allow the Secretary of State to maintain a current listing of all precincts in this state.

(Code 1981, §21-2-261.1, enacted by Ga. L. 1982, p. 1512, § 2; Ga. L. 1983, p. 140, § 1; Ga. L. 1984, p. 1, § 6; Ga. L. 1984, p. 133, § 1; Ga. L. 1993, p. 617, § 8; Ga. L. 1994, p. 1406, § 19; Ga. L. 1995, p. 8, § 1; Ga. L. 1996, p. 145, § 12; Ga. L. 1998, p. 295, § 1; Ga. L. 2013, p. 270, § 1/HB 87.)

21-2-262. Investigation as to division, redivision, alteration, formation, or consolidation of precincts; petition of electors or board of registrars.

  1. The superintendent may upon his or her own motion direct the board of registrars to investigate the division or redivision of a precinct into two or more precincts, or the alteration of the bounds of any precinct, or the formation of one or more precincts out of two or more existing precincts or parts thereof or the consolidation of adjoining precincts. The board of registrars shall make a full investigation of the facts and shall promptly report to the superintendent its findings and recommendations as to the division, redivision, alteration, formation, or consolidation of the precincts. If the board of registrars shall find that a division, redivision, alteration, formation, or consolidation of precincts will promote the convenience of the electors and the public interests, it shall recommend a proper division, redivision, alteration, formation, or consolidation of precincts which conforms to the requirements of subsection (a) of Code Section 21-2-261.1 and shall accompany its report with a map, plat, or draft of the new election precinct or precincts proposed by it.
  2. The board of registrars may also petition the superintendent for the division or redivision of any precinct into two or more precincts, or for the alteration of the bounds of any precinct, or for the formation of one or more precincts out of two or more existing precincts or parts thereof, or for the consolidation of adjoining precincts, accompanying its petition by a description of the proposed new precincts and by a map, plat, or draft thereof.
  3. Upon the presentation of any such petition by the board of registrars or upon the filing by the board of its report and recommendations as to any investigation presented under subsection (a) of this Code section, the superintendent may make such order for the division, redivision, alteration, formation, or consolidation of precincts as will, in the superintendent's opinion, promote the convenience of electors and the public interests; provided, however, that the superintendent shall not make any final order for the division, redivision, alteration, formation, or consolidation of precincts until at least 30 days after notice of such change shall have been advertised in the legal organ of the county. A copy of such notice shall be immediately submitted to the Secretary of State. Such notice shall state briefly the division, redivision, alteration, formation, or consolidation of precincts recommended by the board of registrars and the date upon which the same will be considered by the superintendent and shall contain a warning that any person objecting thereto must file his or her objections with the superintendent prior to such date. Upon the making of any such final order by the superintendent, a copy thereof shall be certified by the superintendent to the board of registrars.
  4. In any county having a population of more than 250,000 according to the United States decennial census of 1970 or any such future census, the powers and duties conferred upon the superintendent by this Code section and Code Sections 21-2-261 and 21-2-261.1 shall be exercised and performed by the governing authority of the county.

(a.1)Upon the petition of 20 electors or of the county executive committee of a political party to the superintendent of the county, praying for the division or redivision of a precinct into two or more precincts, or for the alteration of the bounds of any precinct, or for the formation of one or more precincts out of two or more existing precincts or parts thereof, or for the consolidation of adjoining precincts, the superintendent shall refer such petition to the board of registrars, which shall make a full investigation of the facts and shall promptly report to the superintendent its findings and recommendations as to the division, redivision, alteration, formation, or consolidation of the precincts prayed for. If the board of registrars shall find that a division, redivision, alteration, formation, or consolidation of precincts will promote the convenience of the electors and the public interests, it shall recommend a proper division, redivision, alteration, formation, or consolidation of precincts which conforms to the requirements of subsection (a) of Code Section 21-2-261.1 and shall accompany its report with a map, plat, or draft of the new election precinct or precincts proposed by it. Such petitions may specify the boundaries desired by the petitioners and may be accompanied by a map setting forth such boundaries.

(Code 1933, § 34-703, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1977, p. 1199, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 2; Ga. L. 1987, p. 34, § 1; Ga. L. 1992, p. 56, § 1; Ga. L. 1994, p. 1406, § 20; Ga. L. 1996, p. 145, § 13; Ga. L. 1998, p. 295, § 1; Ga. L. 2019, p. 7, § 13/HB 316.)

The 2019 amendment, effective April 2, 2019, in subsection (c), substituted "30 days" for "ten days" near the end of the first sentence and added the second sentence.

Administrative Rules and Regulations.

- Precincts, changes in boundaries, notification of electors, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Election Districts and Polling Places, § 183-1-7-.01.

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Implementation of changes in voting precincts in counties with populations less than 250,000.

- With respect to counties having a population of 250,000 or less according to the United States Decennial Census of 1970 or any such future census, it is the superintendent who implements the voting precinct boundary changes set forth in O.C.G.A. § 21-2-260 et seq., notwithstanding any local Act establishing the governing authority as the entity implementing such changes. 1983 Op. Att'y Gen. No. 83-40.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 8, 9.

C.J.S.

- 29 C.J.S., Elections, § 81 et seq.

21-2-263. Reduction in size of, or provision of additional voting equipment or poll workers to, precincts containing more than 2,000 electors when voting in such precincts at previous general election not completed one hour after closing of polls.

If at the previous general election a precinct contained more than 2,000 electors and if all those electors desiring to vote had not completed voting one hour following the closing of the polls, the superintendent shall either reduce the size of said precinct so that it shall contain not more than 2,000 electors in accordance with the procedures prescribed by this chapter for the division, alteration, and consolidation of precincts no later than 60 days before the next general election or provide additional voting equipment or poll workers or both before the next general election. For administering this Code section, the chief manager of a precinct which contained more than 2,000 electors at the previous general election shall submit a report thereof, under oath, to the superintendent as to the time required for completion of voting by all persons in line at the time the polls were closed. Any such change in the boundaries of a precinct shall conform with the requirements of subsection (a) of Code Section 21-2-261.1.

(Code 1933, § 34-704.1, enacted by Ga. L. 1968, p. 860, § 1; Ga. L. 1982, p. 1512, § 2; Ga. L. 1994, p. 1406, § 21; Ga. L. 1998, p. 295, § 1; Ga. L. 2011, p. 683, § 8/SB 82.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 8 et seq.

C.J.S.

- 29 C.J.S., Elections, § 83.

21-2-264. Reimbursement of counties and municipalities for costs incurred pursuant to alteration of precinct boundaries.

In all cases of the division, redivision, alteration, formation, or consolidation of precincts, the costs of the proceedings shall be paid by the county or municipal governing authority, as appropriate. There may be appropriated to the Secretary of State funds to be granted to counties or municipalities for purposes of meeting the requirements of Code Section 21-2-261.1. Upon the filing of a written request by the election officials of any qualified county or municipality, a qualified county or municipality shall be reimbursed for all reasonable expenses incurred by such county or municipality which are directly related to the redrawing of voting precinct boundaries, verification of voting precinct residency, notification of voter precinct and polling place changes, and compilation and preparation of the electors list as necessitated by Code Section 21-2-261.1; provided, however, that such reimbursement of costs shall not exceed 25› per registered voter whose name appeared on such county's or municipality's electors list as of January 1, 1982. Any qualified county or municipality seeking reimbursement of such costs shall present an itemized description of such costs to the Secretary of State. If the Secretary of State, after a review of the report of such costs incurred by a county or municipality, shall find that all or portions of such costs were reasonable and were directly related to the preparation of such descriptions and lists, he or she shall approve all of those parts of the costs deemed reasonable and shall reimburse the counties or municipalities for such expenses. Any state funds necessary to carry out the provisions of this Code section shall come only from those funds appropriated to the Secretary of State specifically for the purpose of implementing the provisions of Code Section 21-2-261.1. If such funds are not sufficient to bear completely the cost of fully implementing the provisions of Code Section 21-2-261.1, payment to the counties or municipalities seeking assistance shall be made on a pro rata basis subject to the availability of appropriated funds.

(Ga. L. 1941, p. 321, § 1; Code 1933, § 34-704, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1982, p. 1512, § 2; Ga. L. 1983, p. 964, § 1; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2005, p. 253, § 30/HB 244; Ga. L. 2006, p. 69, § 1/SB 467.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 8.

C.J.S.

- 29 C.J.S., Elections, §§ 81, 82.

21-2-265. Duty of superintendent to select polling places; change; petition objecting to proposed change; space for political parties holding primaries; facilities for disabled voters; selection of polling place outside precinct to better serve voters; restriction on changing polling place on or near date of election.

  1. The superintendent of a county or the governing authority of a municipality shall select and fix the polling place within each precinct and may, either on his, her, or its own motion or on petition of ten electors of a precinct, change the polling place within any precinct. Except in case of an emergency or unavoidable event occurring within ten days of a primary or election, which emergency or event renders any polling place unavailable for use at such primary or election, the superintendent of a county or the governing authority of a municipality shall not change any polling place until notice of the proposed change shall have been published for once a week for two consecutive weeks in the legal organ for the county or municipality in which the polling place is located. Additionally, on the first election day following such change, a notice of such change shall be posted on the previous polling place and at three other places in the immediate vicinity thereof. The occupant or owner of the previous polling place, or his or her agent, shall be notified in writing of such change at the time notice is published in the legal organ.
  2. Except in case of an emergency or unavoidable event occurring within ten days of a primary or election, which emergency or event renders any polling place unavailable for use, if a petition is presented to the superintendent of a county or the governing authority of a municipality on or before the day set for hearing of the petition for change of a polling place, signed by 20 percent of the electors of the precinct objecting to the proposed change, such change shall not be ordered.
  3. In primaries, the superintendent of a county or the governing authority of a municipality in selecting and fixing the polling place in each precinct shall select a polling place which will provide adequate space for all parties conducting their primaries therein.
  4. The superintendent of a county or the governing authority of a municipality, in selecting and fixing a polling place in each precinct, shall select, if practicable, a polling place with suitable and appropriate access for disabled electors. If no such practicable locations exist within the precinct, the superintendent of a county or the governing authority of a municipality may effect temporary modifications to such existing locations as will, in his or her or its judgment, provide more convenient and appropriate access to the polling place by the disabled elector. No polling place shall be selected or used under any circumstances which does not have suitable and appropriate access for persons with disabilities for the purpose of voting; and any person, whether or not personally aggrieved, may bring an action for mandamus to require that all polling places in the county or municipality have suitable and appropriate access for persons with disabilities for the purpose of voting.
  5. On and after January 1, 2018, the superintendent may establish the polling place for a precinct outside the boundaries of the precinct if there is no suitable facility within the precinct which could be used as a polling place and if, by so doing, such polling place would better serve the needs of the voters; provided, however, that no polling place shall be established outside of the boundaries of the precinct within 90 days of a primary or election, and the superintendent shall submit a report to the State Election Board to demonstrate that there is no suitable facility within the precinct prior to establishing the polling place outside the boundaries of the precinct.
  6. A polling place shall not be changed on a day in which a primary, election, or runoff is held, or during the 60 day period prior to any general primary or general election or runoff from such primary or election, nor shall a polling place be changed in the 30 day period prior to any special primary or special election or runoff from such special primary or special election, except, in the discretion of the superintendent, when an emergency or event occurs during such time period which renders the polling place unavailable for use at such general primary, general election, special primary, special election, or runoff.

(Code 1933, § 34-705, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 8; Ga. L. 1978, p. 812, § 1; Ga. L. 1980, p. 1256, § 1.1; Ga. L. 1982, p. 1512, § 5; Ga. L. 1995, p. 1302, §§ 14, 15; Ga. L. 1996, p. 26, § 1; Ga. L. 1996, p. 101, § 2; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 8, 32; Ga. L. 2001, p. 240, § 20; Ga. L. 2006, p. 888, § 2/HB 1435; Ga. L. 2017, p. 697, § 13/HB 268; Ga. L. 2019, p. 7, § 14/HB 316.)

The 2017 amendment, effective July 1, 2017, in subsection (e), substituted "On and after January 1, 2018, the" for "The" at the beginning, and added the proviso at the end.

The 2019 amendment, effective April 2, 2019, added subsection (f).

Cross references.

- Access to and use of public buildings and facilities by physically handicapped persons generally, T. 30, C. 3.

Administrative Rules and Regulations.

- Accessibility for elderly and disabled voters, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.04.

Precincts, changes in boundaries, notification of electors, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Election Districts and Polling Places, § 183-1-7-.01.

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code Section 21-3-163 are included in the annotations for this Code section.

Multiple polling places within precinct.

- Two or more polling places within one election district (now precinct) would not be authorized by the Georgia Election Code. 1968 Op. Att'y Gen. No. 68-63.

Establishment of polling places.

- The governing authority of a municipality is not required to establish a polling place in each district from which a candidate is elected to office, but must establish a polling place in each precinct in the municipality. 1985 Op. Att'y Gen. No. U85-14 (decided under former § 21-3-163).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 305.

C.J.S.

- 29 C.J.S., Elections, §§ 147, 331.

21-2-266. Polling places - Use of public buildings; use of portable or movable facilities; unrestricted access to residential communities.

  1. In selecting polling places, the superintendent of a county or the governing authority of a municipality shall select, wherever practicable and consistent with subsection (d) of Code Section 21-2-265, schoolhouses, municipal buildings or rooms, or other public buildings for that purpose. In selecting polling places, the superintendent of a county or the governing authority of a municipality shall give consideration to the comfort and convenience those places to be selected will provide to both electors and poll officers. School, county, municipal, or other governmental authorities, upon request of the superintendent of a county or the governing authority of a municipality, shall make arrangements for the use of their property for polling places; provided, however, that such use shall not substantially interfere with the use of such property for the purposes for which it is primarily intended.
  2. The superintendent of a county or the governing authority of a municipality shall have discretion to procure and provide portable or movable polling facilities of adequate size for any precinct.
  3. When the boundaries of a restricted access residential community are used as the boundaries for a precinct and a polling place is established within such restricted access residential community for the use of the voters in such precinct, such restricted access community and polling place shall be open to full and complete access by the public when such polling place is in use on the day of a general or special primary or general or special election, including the time while poll officers are setting up the polling place prior to the opening of the polls, the time while the polls are open, and the time while the poll officers are completing the tabulation of the votes, election paperwork, and similar functions after the close of the polls. Such restricted access community and polling place shall also be open to full and complete access by the election superintendent, investigators of the State Election Board, all affected candidates and their representatives, and the public in the event of a recount or recanvass of the votes cast in any primary or election involving such precinct and polling place conducted at such precinct and polling place. In addition, in the event of a contest or challenge to the results of any primary or election involving such precinct and polling place, the election superintendent, upon reasonable notice and at reasonable times, may require such restricted access community and polling place to be open to full and complete access by the election superintendent, investigators of the State Election Board, and all affected candidates and their representatives for the purpose of determining the issues involved in such contest or challenge.

(Code 1933, § 34-706, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1978, p. 812, § 2; Ga. L. 1982, p. 1512, § 5; Ga. L. 1986, p. 348, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2013, p. 270, § 2/HB 87.)

Administrative Rules and Regulations.

- Accessibility for elderly and disabled voters, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.04.

OPINIONS OF THE ATTORNEY GENERAL

Interference with primary use of public property.

- Whether the use as a polling place will substantially interfere with primary use of public property is a decision which lies within the discretion of the judge of the probate court (now superintendent). 1965-66 Op. Att'y Gen. No. 65-88.

Use of school buildings as polling places.

- The General Assembly intended that, wherever possible, school buildings be used as polling places. An affirmative duty is placed on school officials to make their property available for polling places. 1965-66 Op. Att'y Gen. No. 65-88.

National Guard Armories may be used as polling places in an election. Armories cannot be used, however, if the use would interfere in any way with the functions and purposes for which the armory is primarily intended. 1969 Op. Att'y Gen. No. 69-254.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 307.

C.J.S.

- 29 C.J.S., Elections, §§ 147, 331.

21-2-267. Polling places - Equipment; arrangement; storage.

  1. The governing authority of each county and municipality shall provide and the superintendent shall cause all rooms used as polling places to be provided with suitable heat and light and, in precincts in which ballots are used, with a sufficient number of voting compartments or booths with proper supplies in which the electors may conveniently mark their ballots, with a curtain, screen, or door in the upper part of the front of each compartment or booth so that in the marking thereof they may be screened from the observation of others. A curtain, screen, or door shall not be required, however, for the self-contained units used as voting booths in which direct recording electronic (DRE) voting units or electronic ballot markers are located if such booths have been designed so as to ensure the privacy of the elector. When practicable, every polling place shall consist of a single room, every part of which is within the unobstructed view of those present therein and shall be furnished with a guardrail or barrier closing the inner portion of such room, which guardrail or barrier shall be so constructed and placed that only such persons as are inside such rail or barrier can approach within six feet of the ballot box and voting compartments, or booths, or voting machines, as the case may be. The ballot box and voting compartments or booths shall be so arranged in the voting room within the enclosed space as to be in full view of those persons in the room outside the guardrail or barrier. The voting machine or machines shall be placed in the voting rooms within the enclosed space so that, unless its construction shall otherwise require, the ballot labels on the face of the machine can be plainly seen by the poll officers when the machine is not occupied by an elector. In the case of direct recording electronic (DRE) voting units or electronic ballot markers, the devices shall be arranged in such a manner as to ensure the privacy of the elector while voting on such devices, to allow monitoring of the devices by the poll officers while the polls are open, and to permit the public to observe the voting without affecting the privacy of the electors as they vote.
  2. The superintendent, unless otherwise provided by law, may make such arrangements as he or she deems proper for the storage of election equipment in the various precincts of the county or municipality at such times of the year that it will not be used for election purposes and may fix reasonable compensation therefor.

(Ga. L. 1922, p. 97, § 1; Code 1933, § 34-1902; Code 1933, § 34-708, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1978, p. 1004, § 14; Ga. L. 1982, p. 1512, § 5; Ga. L. 1983, p. 140, § 1; Ga. L. 1991, p. 999, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 25; Ga. L. 2005, p. 253, § 31/HB 244; Ga. L. 2019, p. 7, § 15/HB 316.)

The 2019 amendment, effective April 2, 2019, in subsection (a), inserted "or electronic ballot markers" in the middle of the second sentence and near the middle of the last sentence, and substituted "devices" for "units" three times in the last sentence.

Administrative Rules and Regulations.

- Accessibility for elderly and disabled voters, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Registration of Electors, § 183-1-6-.04.

JUDICIAL DECISIONS

Violation renders election void.

- Violations of statutory requirements, including the requirement of this section that the voting booths have a screen, curtain, or door render an election void. Cox v. Williams, 216 Ga. 535, 117 S.E.2d 899 (1961).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 307.

C.J.S.

- 29 C.J.S., Elections, §§ 331, 337, 338.

21-2-268. Compensation for rent, heat, light, and janitor