GA Code § 21-2-5 (2021)
2021 Georgia Code|Title 21 - Elections|Chapter 2 - Elections and Primaries Generally|Article 1 - General Provisions|§ 21-2-5. Qualifications of Candidates for Federal and State Office; Determination of Qualifications

  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.   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.   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.   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.   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:   In violation of the Constitution or laws of this state;   In excess of the statutory authority of the Secretary of State;   Made upon unlawful procedures;   Affected by other error of law;   Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or   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.