GA Code § 21-2-438 (2021)
2021 Georgia Code|Title 21 - Elections|Chapter 2 - Elections and Primaries Generally|Article 11 - Preparation for and Conduct of Primaries and Elections|Part 2 - Precincts Using Paper Ballots|§ 21-2-438. Ballots Identifying Voter, Not Marked, or Improperly Marked Declared Void

  Any ballot marked so as to identify the voter shall be void and not counted, except a ballot cast by a challenged elector whose name appears on the electors list; such challenged vote shall be counted as prima facie valid but may be voided in the event of an election contest. Any ballot marked by anything but pen or pencil shall be void and not counted. Any erasure, mutilation, or defect in the vote for any candidate shall render void the vote for such candidate but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked. If an elector shall mark his or her ballot for more persons for any nomination or office than there are candidates to be voted for such nomination or office, or if, for any reason, it may be impossible to determine his or her choice for any nomination or office, his or her ballot shall not be counted for such nomination or office; but the ballot shall be counted for all nominations or offices for which it is properly marked. Ballots not marked or improperly or defectively marked so that the whole ballot is void shall be set aside and shall be preserved with the other ballots. In primaries, votes cast for candidates who have died, withdrawn, or been disqualified shall be void and shall not be counted. Except as provided in subsection (g) of Code Section 21-2-134 regarding nonpartisan elections, in elections, votes for candidates who have died or been disqualified shall be void and shall not be counted.   At elections, any ballot marked by any other mark than a cross (X) or check ( √) mark in the spaces provided for that purpose shall be void and not counted; provided, however, that no vote recorded thereon shall be declared void because a cross (X) or check ( √) mark thereon is irregular in form. A cross (X) or check ( √) mark in the square opposite the names of the nominees of a political party or body for the offices of President and Vice President shall be counted as a vote for every candidate of that party or body for the offices of presidential electors. Any ballot indicating a write-in for any person whose name is not printed on the ballot and who properly gave notice of intent to run as a write-in candidate pursuant to Code Section 21-2-133 shall be counted as a vote for such person, if written in the proper space or spaces provided for that purpose, whether or not a cross (X) or check ( √) mark is placed before the name of such person.   Notwithstanding any other provisions of this chapter to the contrary and in accordance with the rules and regulations of the State Election Board promulgated pursuant to paragraph (7) of Code Section 21-2-31, if the elector has marked his or her ballot in such a manner that he or she has indicated clearly and without question the candidate for whom he or she desires to cast his or her vote, his or her ballot shall be counted and such candidate shall receive his or her vote, notwithstanding the fact that the elector in indicating his or her choice may have marked his or her ballot in a manner other than as prescribed by this chapter.    (Ga. L. 1952, p. 304, § 1; Code 1933, §§ 34-1322, 34-1322.1, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1968, p. 871, §§ 9, 10; Code 1933, §§ 34-1323, 34-1324, as redesignated by Ga. L. 1969, p. 308, §§ 9, 24; Ga. L. 1987, p. 417, § 8; Ga. L. 1987, p. 1360, § 17; Ga. L. 1993, p. 118, § 1; Ga. L. 1994, p. 279, § 8; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 50; Ga. L. 2021, p. 14, § 38/SB 202.)    The 2021 amendment,  effective March 25, 2021, substituted "Except as provided in subsection (g) of Code Section 21-2-134 regarding nonpartisan elections, in elections" for "In elections" at the beginning of the last sentence in subsection (a).   Editor's notes.   - Ga. L. 2021, p. 14, § 1/SB 202, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Election Integrity Act of 2021."'   Ga. L. 2021, p. 14, § 2/SB 202, not codified by the General Assembly, provides: "The General Assembly finds and declares that:   "(1) Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter suppression and many electors concerned about allegations of rampant voter fraud;   "(2) Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election;   "(3) The stress of the 2020 elections, with a dramatic increase in absentee-by-mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence;   "(4) The changes made in this legislation in 2021 are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in Georgia by promoting uniformity in voting. Several examples will help explain how these goals are achieved;   "(5) The broad discretion allowed to local officials for advance voting dates and hours led to significant variations across the state in total number of hours of advance voting, depending on the county. More than 100 counties have never offered voting on Sunday and many counties offered only a single day of weekend voting. Requiring two Saturday voting days and two optional Sunday voting days will dramatically increase the total voting hours for voters across the State of Georgia, and all electors in Georgia will have access to multiple opportunities to vote in person on the weekend for the first time;   "(6) Some counties in 2020 received significant infusions of grant funding for election operations, while other counties received no such funds. Promoting uniformity in the distribution of funds to election operations will boost voter confidence and ensure that there is no political advantage conferred by preferring certain counties over others in the distribution of funds;   "(7) Elections in Georgia are administered by counties, but that can lead to problems for voters in counties with dysfunctional election systems. Counties with long-term problems of lines, problems with processing of absentee ballots, and other challenges in administration need accountability, but state officials are limited in what they are able to do to address those problems. Ensuring there is a mechanism to address local election problems will promote voter confidence and meet the goal of uniformity;   "(8) Elections are a public process and public participation is encouraged by all involved, but the enthusiasm of some outside groups in sending multiple absentee ballot applications in 2020, often with incorrectly filled-in voter information, led to significant confusion by electors. Clarifying the rules regarding absentee ballot applications will build elector confidence while not sacrificing the opportunities for electors to participate in the process;   "(9) The lengthy absentee ballot process also led to elector confusion, including electors who were told they had already voted when they arrived to vote in person. Creating a definite period of absentee voting will assist electors in understanding the election process while also ensuring that opportunities to vote are not diminished, especially when many absentee ballots issued in the last few days before the election were not successfully voted or were returned late;   "(10) Opportunities for delivering absentee ballots to a drop box were first created by the State Election Board as a pandemic response. The drop boxes created by rule no longer existed in Georgia law when the emergency rules that created them expired. The General Assembly considered a variety of options and constructed a system that allows the use of drop boxes, while also ensuring the security of the system and providing options in emergency situations;   "(11) The lengthy nine-week runoffs in 2020 were exhausting for candidates, donors, and electors. By adding ranked choice voting for military and overseas voters, the run-off period can be shortened to a more manageable period for all involved, easing the burden on election officials and on electors;   "(12) Counting absentee ballots in 2020 took an incredibly long time in some counties. Creating processes for early processing and scanning of absentee ballots will promote elector confidence by ensuring that results are reported quickly;   "(13) The sanctity of the precinct was also brought into sharp focus in 2020, with many groups approaching electors while they waited in line. Protecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence;   "(14) Ballot duplication for provisional ballots and other purposes places a heavy burden on election officials. The number of duplicated ballots has continued to rise dramatically from 2016 through 2020. Reducing the number of duplicated ballots will significantly reduce the burden on election officials and creating bipartisan panels to conduct duplication will promote elector confidence;   "(15) Electors voting out of precinct add to the burden on election officials and lines for other electors because of the length of time it takes to process a provisional ballot in a precinct. Electors should be directed to the correct precinct on election day to ensure that they are able to vote in all elections for which they are eligible;   "(16) In considering the changes in 2021, the General Assembly heard hours of testimony from electors, election officials, and attorneys involved in voting. The General Assembly made significant modifications through the legislative process as it weighed the various interests involved, including adding further weekend voting, changing parameters for out-of-precinct voting, and adding transparency for ballot images; and   "(17) While each of the changes in this legislation in 2021 stands alone and is severable under Code Section 1-1-3, the changes in total reflect the General Assembly's considered judgment on the changes required to Georgia's election system to make it 'easy to vote and hard to cheat,' applying the lessons learned from conducting an election in the 2020 pandemic."   Administrative Rules and Regulations.   - 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.   JUDICIAL DECISIONS   Legislative declaration of public policy.    - The directions as to how a voter should mark a ballot and as to what ballots shall or shall not be counted, though specifically referring to the paper ballot, are declarations of public policy by the legislature. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).    It is the duty of the voter to make the voter's intention clear and certain, upon pain of having the vote cast out if that does not appear. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).    Unless the ballot clearly demonstrates the voter's intention, those who are charged with the counting and tabulation of ballots should not be called upon to surmise as to what the intent may have been - for they may well come to the wrong conclusion. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).   "Over-vote" voids ballot as to specific office.    - An "over-vote" occurs when the voter appropriately marks the indicated space at the head of a party column on a ballot, indicating an intention to vote for all of that party's candidates, and also places marks opposite the names of an opposing candidate or candidates, indicating an intent to vote also for them, or when the voter marks a straight party ticket and additionally writes in the name of a candidate for one of the offices for which there is a candidate by that party. Where an over-vote has occurred, as to that office, or those offices, the ballot is invalid, but it is valid as to others. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).   Vote recorder ballots.    - Cardboard ballots "marked" by a punch are governed by the provisions of O.C.G.A. § 21-2-438 pertaining to paper ballots and, thus, votes cast on vote recorder ballots for candidates who had withdrawn from the election were void. Jones v. Norris, 262 Ga. 468, 421 S.E.2d 706 (1992).    Cited in Broome v. Martin, 111 Ga. App. 51, 140 S.E.2d 500 (1965); Henderson v. County Bd. of Registration & Elections, 126 Ga. App. 280, 190 S.E.2d 633 (1972); Rary v. Guess, 129 Ga. App. 102, 198 S.E.2d 879 (1973).   OPINIONS OF THE ATTORNEY GENERAL   Ballot which shows clear indication of intent is valid.    - To give meaning to former Code 1933, §§ 34-1103, 34-1330, 34-1324 (see now O.C.G.A. §§ 21-2-285,21-2-452 and21-2-438) those statutes should be construed as requiring poll officers to count as valid ballots any ballot on which an elector has indicated clearly and without question the candidate for whom the elector desires to cast a vote, notwithstanding the fact the elector has not marked the ballot in accordance with the Election Code, except write-in ballots containing the name of the candidate inserted by means of a sticker, paster, stamp, or other printed or written matter. 1976 Op. Att'y Gen. No. U76-45.   Abbreviations in write-in votes.   - An elector, when casting a write-in vote, may use abbreviations in the title of the office if the write-in office has been abbreviated in such a way that the elector has indicated clearly and without question the office for which the elector voted. 1968 Op. Att'y Gen. No. 68-434.   Use of stickers, pasters, and stamps.    - Former Code 1933, § 34-1324 (see now O.C.G.A. § 21-2-438) did not remove the restrictions on the use of stickers, pasters, and stamps, as contained in former Code 1933, §§ 34-1103 and 34-1330 (see now O.C.G.A. §§ 21-2-285 and21-2-452). 1976 Op. Att'y Gen. No. U76-45.   RESEARCH REFERENCES   Am. Jur. 2d.   - 26 Am. Jur. 2d, Elections, § 319 et seq.   C.J.S.   - 29 C.J.S., Elections, §§ 294, 299, 305 et seq., 318 et seq.