34338.

#### TAGGART v. PHILLIPS et al.

Hill, Justice.

This opinion is rendered on November 2, 1978. The general election is next Tuesday, November 7, 1978.

Following our decision on October 24, 1978, in *Taggart v. Phillips,*242 Ga. 454, (1978), the trial judge conducted a hearing and entered an order on October 30, 1978.

After finding that at the August 8,1978, Democratic primary for Georgia House of Representatives District 125, candidate Phillips received 2,194 votes and contestant Taggart received 2,183 votes (a difference of 11 votes), and 1,071 voters who voted at polling places in the district did not vote in this race, the court found that the evidence did not sustain contestant’s claim that his name was misaligned on one voting machine resulting in votes being cast for his opponent. The court’s order continues:

"After hearing evidence presented by the Plaintiff, I find that at least sixteen registered voters voted in the *485WJ legisl

Chathar legislative’’ legislative primary elec! Registrars of h! prior to the prir election at the poll he is registered; pul and without a prior cl 34-628, his vote is ch| upon the contention because of residency Election Code. Was thil legislative district electidl former residence? I find this! elector.

"The provisions of Ga. Code* elector to vote in an election district^ residence if he changes his residence wl prior to a Primary or an election; however^ Assembly has not prescribed the prohibition a§ elector voting in a legislative district when^ changed his residence from that district more thar days prior to the Primary or election.”

Unfortunately we must disagree with the below. Code Ann. § 34-631 (c) (as amended, Ga. L. 1¶ pp. 1004,1010) provides: "In the event any elector me to a residence within the county which has a differ^

*486hese two subsections Elsewhere in the elec- ,) provides: "Except as voting at one central and 34-1407 [absentee g any primary or election at i election district in which he *-1929. Although it would appear Ament to Code Ann. § 34-631 (d) may . exception to § 34-1328 (c) (in addition to . run and absentee voting), § 34-631 (c) would . exception to § 34-1328 (c).

vever, while there were 16 nonresident voters f,ed improperly at polling places in the 125th House *ct,*there were 1071 voters in the Democratic *ry who did not vote in the 125th House race. There is anscript and the record does not show that these 16 •s voted in this race. Although the trial judge in his • stated that he refused to permit voters to be *487examined as to whether they voted in the 125th House race, there is no enumeration of error based upon this ruling and no offer of proof that these 16 voters voted in this race. In view of the delay involved in the prior appeal, see *Taggart v. Phillips,*supra, and the fact that the general election is only 4 days away, it would be impracticable to remand this case for further proceedings. In *Taggart v. Phillips,*supra, we wrote: "Appellant must show that a sufficient number of electors voted illegally or were irregularly recorded *in the contest being challenged*to change or cast doubt on the election. It is not for whom they voted but that they voted in *this*'race’ illegally. . .” (Emphasis supplied.) Appellant failed to show that these 16 voters voted in the race being challenged. We therefore find that the contestant has failed in his burden of showing that the votes of these 16 voters were sufficient to place the result of this primary race in doubt. Code Ann. § 34-1703 (c).

Submitted November 2, 1978

Decided November 2, 1978

Rehearing denied November 3, 1978.

*Ashman & Zipperer, Alex L. Zipperer, John R. Calhoun, Robert M. Davis,*for appellant.

*Morton G. Forbes, Anton F. Solms, Jr., Clark Smith,*for appellees.

*Judgment affirmed.*

*All the Justices concur, except Jordan, J., who concurs in the judgment only.*