GA Code § 21-2-524 (2021)
2021 Georgia Code|Title 21 - Elections|Chapter 2 - Elections and Primaries Generally|Article 13 - Contested Elections and Primaries|§ 21-2-524. Filing and Allegations of Petition to Contest Primary or Election; Service of Petition; Verification; Notice of Proceedings to Answer Petition; Service of Special Process; Amendment

  A petition to contest the result of a primary or election shall be filed in the office of the clerk of the superior court having jurisdiction within five days after the official consolidation of the returns of that particular office or question and certification thereof by the election official having responsibility for taking such action under this chapter or within five days after the official consolidation and certification of the returns of that particular office or question by the election official having responsibility for taking such action under this chapter following a recount pursuant to Code Section 21-2-495 and shall allege:   The contestant's qualification to institute the contest;   The contestant's desire to contest the result of such primary or election and the name of the nomination, office, or question involved in the contest;   The name of the defendant;   The name of each person who was a candidate at such primary or election for such nomination or office in the case of a contest involving same;   Each ground of contest;   The date of the official declaration of the result in dispute;   The relief sought; and   Such other facts as are necessary to provide a full, particular, and explicit statement of the cause of contest.     The State Election Board shall be served with a copy of the petition, as provided in subsection (a) of this Code section, by serving the same on the chairperson thereof, by mailing a copy 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 his or her attorney.   When an error in the counting of votes is alleged as a ground of contest, it is sufficient for the contestant to state generally that he or she believes that error was committed in the counting of the votes cast for the filling of the nomination or office in dispute, or for or against the question in dispute, in one or more specified precincts; and it shall not be necessary for the contestant to offer evidence to substantiate such allegation. If a recount of the votes cast in any precinct or precincts shall change the result in dispute, any aggrieved litigant may require a recount of the votes affecting such result, which were cast in any other precinct or precincts, by amending his or her pleadings and requesting such relief.   The petition shall be verified by the affidavit of each contestant. Such affidavit shall be taken and subscribed before some person authorized by law to administer oaths and shall state that the contestant believes the facts alleged therein are true, that according to the best of his or her knowledge and belief the contested result of the primary or election is illegal and the return thereof incorrect, and that the petition to contest the same is made in good faith.   A statement of the grounds of contest shall not be rejected, nor the proceedings dismissed by any court, for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which the primary or election is contested.   Upon such petition being filed, the clerk of the superior court shall issue notice, in the form of special process directed to the sheriff of such county, requiring the defendant and any other person named in such petition as a candidate for such nomination or office, if any, to appear and answer such petition, on a day to be fixed in such notice, not more than ten days nor less than five days after the service of such notice. Such notice, with a copy of the petition attached, shall be served by the sheriff upon the defendant and any other person named therein in the same manner as petitions and process are served in other civil cases. On or before the day fixed in such notice, unless for good cause shown the presiding judge shall extend the time therefor, the defendant shall appear and answer such petition and may set up by way of answer or cross action any right of interest he or she may have or claim in such proceeding. Any other person who was a candidate at such primary or election for the nomination or office involved and upon whom notice was served as provided in this subsection shall be deemed a litigant to such proceeding and may set up by way of answer or cross action any right of interest or claim he or she may have.   After filing, any petition, cross action, or answer may be amended with leave of the court so as to include the specification of additional grounds of contest, other relevant facts, or prayer for further relief. After each amendment, a reasonable time to respond shall be given by the court to any opposing litigant.    (Ga. L. 1893, p. 124, § 1; Civil Code 1895, § 107; Ga. L. 1898, p. 44, § 1; Civil Code 1910, § 121; Code 1933, § 34-2801; Code 1933, § 34-1705, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 24; Ga. L. 1979, p. 955, § 8; Ga. L. 1982, p. 1512, § 5; Ga. L. 1986, p. 32, § 1; Ga. L. 1989, p. 1748, § 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, provided that the amendment to subsection (b) is applicable with respect to notices delivered on or after July 1, 2000.   JUDICIAL DECISIONS   Section constitutional.    - This section did not violate the constitutional requirement that the legislative, judicial, and executive functions of government shall forever remain separate and distinct. Freeman v. State ex rel. McDonald, 72 Ga. 812 (1884); Johnson v. Jackson, 99 Ga. 389, 27 S.E. 734 (1896).    Georgia Election Code does not provide sole and exclusive means for challenging eligibility to hold public office since a quo warranto suit may also be brought. White v. Miller, 235 Ga. 192, 219 S.E.2d 123 (1975).   Basis for belief that error occurred.    - In O.C.G.A. § 21-2-524 and other statutory provisions, the General Assembly has expressed an intent that the public inform itself of the accuracy of the voting process. It would be inconsistent with that intent to permit someone to force a recount under O.C.G.A. § 21-2-524(c) based on the mere speculative belief that an error in counting occurred. Ellis v. Johnson, 263 Ga. 514, 435 S.E.2d 923 (1993).    O.C.G.A. § 21-2-524(c) allows an election recount based on a contestant's stated belief that there was a miscount without proof that an actual counting error occurred, but O.C.G.A. § 21-2-524(a)(8) requires that some factual basis or "cause" for such belief be alleged and proved. Ellis v. Johnson, 263 Ga. 514, 435 S.E.2d 923 (1993).    Burden is on the complaining party to affirmatively show that facially valid results are invalid due to an irregularity sufficient to place the entire election in doubt. Johnson v. Rheney, 245 Ga. 316, 264 S.E.2d 872 (1980).    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).    It is unnecessary for the contestant to plead the details of the evidence when the contestant challenges the validity of election results. Bush v. Johnson, 111 Ga. App. 702, 143 S.E.2d 21 (1965).   Sufficient evidence of fraud.    - Charges that more ballots were found in the box at precincts than the number of persons listed by the holders of the election as having voted, or that less ballots were found in one box than the number of people who had voted in that precinct, amounted to serious charges of fraud in the holding of the election. The charges were as definite and full as could be expected in this situation and were sufficient to raise the question as to whether the election has been conducted in a manner so illegally, fraudulently, and unfairly as to fall under condemnation of the law. Bush v. Johnson, 111 Ga. App. 702, 143 S.E.2d 21 (1965).   Insufficient evidence of fraud.    - In an election contest because the contestor did not present any evidence showing a factual basis to establish fraud by casting doubt on the counting of a single vote, but instead presented web site information, which had nothing to do with any miscounting of votes or the mishandling of any absentee ballots, such evidence was insufficient to support an election contest. Davis v. Dunn, 286 Ga. 582, 690 S.E.2d 389 (2010).    Sections of the former Code provided an adequate remedy at law for a contestant and no resort lies to a court of equity. Tupper v. Dart, 104 Ga. 179, 30 S.E. 624 (1898).   Time for filing contest.    - The five-day period for filing an election contest begins after the results are certified by the Secretary of State, not after each county certifies its results. Hammill v. Valentine, 258 Ga. 603, 373 S.E.2d 9 (1988).    When there is a recount, the five-day period to contest an election begins to run from the date of the certification of the recount by the Secretary of State, not from the certification of the election. Hammill v. Valentine, 258 Ga. 603, 373 S.E.2d 9 (1988).    Trial court erred in finding that the State Election Board was not properly served with process of an election candidate's challenge to an election contest; but, the candidate's failure to effect timely service of appropriate process of the contest against the mayor-elect required dismissal of the suit. Swain v. Thompson, 281 Ga. 30, 635 S.E.2d 779 (2006).    Trial court did not err in dismissing the candidates' petition contesting a general election on the ground that the petition was not filed within five days after the official consolidation of the returns and certification thereof pursuant to O.C.G.A. § 21-2-524(a). When the board certified the election results on November 7, the candidates had through November 12 to file a petition, but, since they did not file the petition until November 17, the trial court was without jurisdiction to decide the merits of the election contest, and the trial court's finding that the date of certification was November 7 was supported by evidence that, on that date, the chairman of the county board of elections signed the certification form on the only signature line provided for the superintendent; although each plaintiff has five days in which to file a petition challenging an election, O.C.G.A. § 21-2-524(a) clearly permits different filing dates for different races in any given election, depending on when the appropriate party certifies the results for the "particular office" at issue. Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010).    Trial court did not err in ruling that certification by a county board of elections and registration triggered the five-day filing period of O.C.G.A. § 21-2-524(a) because the five-day period of § 21-2-524(a) for filing a petition to contest the election results for a county office began to run when the county superintendent had officially consolidated and certified the returns for the particular office; because the Secretary of State only certifies election returns for federal and state offices, the sole election official specified in the Georgia Code as having responsibility for consolidation and certification of election results for other offices is the local superintendent. Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010).    Election Code does not provide that a mandatory recount and re-certification of the results in one race require re-certification of the results in other races and a second opportunity to contest such other elections; the apparent loser of the race that is the subject of the recount must be given five days after re-certification in which to challenge the election, but the exception to measurement of the five-day period from the date of initial certification does not apply to candidates whose races were not subject to a recount, who have remained the apparent losers since certification of their races, and who have therefore already had a real opportunity to challenge the election within five days after certification of the initial count. Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010).   Laches applied to bar suit filed 42 days after election approving contested tax.    - Even though laches operated independently of any statute of limitations, courts of equity usually acted in obedience and in analogy to the statutes of limitations in cases where it would not have been unjust and inequitable to have done so; laches was properly applied to bar a suit seeking an injunction against a tax which was filed 42 days after the election approving the tax. Plyman v. Glynn County, 276 Ga. 426, 578 S.E.2d 124 (2003).   Contest prohibited after legal commission issued.    - By this section, which prohibited a contest after a commission had been issued, was meant a legal commission only, and not one which was issued prematurely. Hardin v. Colquitt, 63 Ga. 588 (1879).   Noncandidates cannot contest election.    - Petitioners who are not candidates for the offices to which the defendants were elected are not in a position to contest the election. Jones v. McElreath, 167 Ga. 833, 146 S.E. 734 (1929).   Procedure not in accordance with former section not legal contest.    - A procedure which was not in accordance with the above rules and regulations was not such a contest of the election as was provided and required by the rules and regulations of former Code 1910, § 121. Norwood v. Peeples, 158 Ga. 162, 122 S.E. 618 (1924).    Cited in Nichols v. Acree, 112 Ga. App. 287, 145 S.E.2d 92 (1965); Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); Hutto v. Rowland, 226 Ga. 889, 178 S.E.2d 180 (1970); Robinson v. Bassett, 128 Ga. App. 711, 197 S.E.2d 799 (1973); Schloth v. Smith, 134 Ga. App. 529, 215 S.E.2d 292 (1975); McCreary v. Martin, 281 Ga. 668, 642 S.E.2d 80 (2007).   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d, Elections, § 401 et seq.   C.J.S.   - 29 C.J.S., Elections, §§ 451 et seq., 467 et seq.   ALR.    - Validity, construction and application of state statutory limitations periods governing election contests, 60 A.L.R. 6th 481.