CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/9/2023 1

Ballot Errors for Local Election 

Caudell v. Thomas 

(William C. O’Kelley, N.D. Ga. 2:10-cv-217) 

A defendant probate judge removed to federal court an action seeking relief from ballot errors in an election for county commissioners. The composition of the commission had recently changed from 

a chair in post 1 and two other members in posts 2 and 3, all elected 

at large, to a chair elected at large and four members representing 

districts 1 through 4. Commissioners in districts 1 and 3 were up 

for election, but the ballot listed them as running for posts 1 and 3. 

In addition, the plaintiffs alleged malapportionment. The federal 

district judge remanded the ballot issue as a state matter but retained the malapportionment challenge for regular proceedings. 

The parties, however, stipulated dismissal. 

Subject: Voting irregularities. Topics: Election errors; matters 

for state courts; malapportionment; removal. 

On October 15, 2010, six voters filed a complaint in Georgia’s superior court 

for Banks County, seeking relief from errors in the ballot prepared for the 

2010 general election to elect two county commissioners.1 The defendant 

probate judge, who acted as election superintendent for the county, removed 

the action to the U.S. District Court for the Northern District of Georgia on 

October 26.2

In 2008, the composition of the county’s board of commissioners was 

changed from a chair, occupying commissioner post 1, and two other members, occupying commissioner posts 2 and 3, all elected at large, to a chair 

elected at large and four members representing commissioner districts 1 

through 4.3 Incumbents occupied the seats for districts 1 and 3 until the 2010 

election.4 The 2010 ballot listed elections for county commissioner posts 1 

and 3 instead of for commissioner districts 1 and 3.5 The main alleged confusion arose from the previous designation of Post 1 as the chair.6

 The plaintiffs 

also alleged that the districts were unequally drawn.7

On October 25, the state judge issued a rule nisi, setting a show-cause 

hearing for October 27,8 and the federal court construed this as a motion for 

1. Complaint, Caudell v. Thomas, No. 10-cv-588 (Ga. Sup. Ct. Banks Cty. Oct. 15, 2010), 

attached to Notice of Removal, Caudell v. Thomas, No. 2:10-cv-217 (N.D. Ga. Oct. 26, 2010), 

D.E. 1. 

2. Notice of Removal, supra note 1. 

3. Order Denying Temporary Restraining Order, Caudell, No. 2:10-cv-217 (N.D. Ga. 

Oct. 29, 2010), D.E. 5; see Complaint, supra note 1, at 2–3. 

4. Order Denying Temporary Restraining Order, supra note 3, at 3; see Complaint, supra

note 1, at 3–4. 

5. See Complaint, supra note 1, at 5. 

6. Id.

7. Id. at 10–14 (noting a population range from 3,504 to 3,666). 

8. Rule Nisi, Caudell v. Thomas, No. 10-cv-588 (Ga. Sup. Ct. Banks Cty. Oct. 25, 2010), 
Ballot Errors for Local Election 

2 Federal Judicial Center 9/9/2023 

a temporary restraining order.9 The federal court assigned the case to Judge 

William C. O’Kelley, who heard the matter by telephone at 9:30 a.m. on October 27.10 He decided that the ballot issue was a state matter, so he denied 

immediate injunctive relief and remanded that claim to the state court.11 He 

retained the equal-protection claim for regular proceedings.12

The parties stipulated dismissal on November 24.13

filed as State-Court Filings at 27, Caudell, No. 2:10-cv-217 (N.D. Ga. Oct. 26, 2010), D.E. 2. 

9. Docket Sheet, Caudell, No. 2:10-cv-217 (N.D. Ga. Oct. 26, 2010).

10. Minutes, id. (Oct. 27, 2010), D.E. 3. 

Judge O’Kelley died on July 5, 2017. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

11. Remand Order at 3–5, Caudell, No. 2:10-cv-217 (N.D. Ga. Oct. 27, 2010), D.E. 4; 

Minutes, supra note 10. 

12. Order Denying Temporary Restraining Order, supra note 3; Remand Order, supra

note 11, at 2–3, 5; Minutes, supra note 10. 

13. Stipulated Dismissal, Caudell, No. 2:10-cv-217 (N.D. Ga. Nov. 24, 2010), D.E. 8.