*1 268 involving depravity aggravating of mind and circumstance
torture.
Judgment the Justices concur. All affirmed.
Appendix.
(572
583) (2002);
Braley
State,
v.
276
47
SE2d
Raheem
v.
Ga.
(2002);
(560
680)
State, 275
11
State,
SE2d
Lance v.
Ga.
87
275 Ga.
(555
440)
663) (2002);
(560
(2001);
State, 274
640
SE2d
SE2d
Lucas v.
Ga.
(2001);
(552
855)
State, 274
377
SE2d
Butts v.
Rhode v.
Ga.
472) (2001);
(546
State, 273
State,
SE2d
Heidler v.
Ga. 54
273
760
Ga.
(532
78)
(537
44) (2000);
State,
v.
272
691
SE2d
SE2d
Morrow
Ga.
(519
655) (1999);
(2000); Gulley State, 271
SE2d
Palmer v.
Ga. 337
502) (1999);
(517
Pye State, 269
State,
779
234
SE2d
Ga.
(498
502)
(505
4) (1998);
State, 269
282
SE2d
SE2d
Jenkins v.
Ga.
SE2d
(493
157) (1997);
(1998); DeYoung State,
Raul-
CARLEY, Justice. undisputed. in this case After a recount ofthe votes facts are July 20, cast in held on select a the statewide election Appeals Georgia, Judge Eldridge Frank on the Court of successor to 207,473 Mike ran second votes and Howard Mead Sheffield with margin, 207,091 finished third votes. a 382-vote with right participate in a election with Debra Sheffield run-off won top vote-getter Bernes, 100,000 However, over votes. who was alleging suit, Mead the number of absentee ballots filed sufficient the outcome of the Laurens render county, election In that some 481 absentee contain- in doubt. ing Mead,” the correct name name rather than incorrect “Thomas number, Mead,” and “Howard were returned counted. Of Appeals race, in the Court 71 cast contained votes for “Thomas remaining split among Mead,” Sheffield, for the other candidates. against focusing claim,
The trial found court Mead’s on the 314 ballots which contained Appeals votes for candidates the contested Court of According analysis,
race. if its Mead is credited with 71 *2 remaining votes, then the 243 votes would not be sufficient to meet questioning the 382-vote threshold for of the outcome the election. appeal, stay Mead filed a notice of and this Court issued a pending appeal. election resolution of the (c)provides, part, § OCGA 21-2-284 in relevant that “the names qualified printed all of who have be candidates . . . shall generally ballots . . . .” “Shall” is construed as a word of command. (3) (573 23) (2002). Durham, 860, O’Donnell v. 275 861 Ga. SE2d Although qualified candidate, a he was of the name “Howard Mead” appear disputed County not did on Laurens absentee ballots. appeared Instead, the name of “Thomas Mead” thereon. “
The word “name” ‘has defined word been as the or combi- by person distinguished nation ofwords which a is from other given law, ‘consists, name, individuals’ and of a . . . and a family [given] surname .... The ... name ... has been used early distinguish from times a individual from Consequently, always his .... it fellows has been considered part person’s an essential of a name . . . [Cits.]” [Cit.] .’ Maye (1) (477 119) (1996). Pundt, 243, 267 Ga. 245 SE2d County law,
As a therefore, matter of the 481 Laurens absentee comply (c). did § ballots not with the of mandate OCGA 21-2-284 The qualified names all of the of of candidates the contested Court Appeals ballots, race not were listed on those since the name appear. “Howard Mead” did not
[Nothing] possibly vitally could constitute a more essential element in election than the contents ofthe officialballot legal supplied [.] furnished to the voters If a ballot was duly authority omitting constituted of [an the name indi- part vidual], but thereafter reason of the on his action prohibited by containing ballot tuted, law his name was substi- doing illegal; being true,
his action in
so was
and this
itself,
... the
concerned,
insofar as this candidate was
inherently
essentially illegalf.]
[was]
Ryan,
(3) (43
578,
Alexander v.
202 Ga.
SE2d
adding
illegal. Likewise,
unauthorized name to ballot makes it
supplied
omits the
here,
with a ballot which
where, as
the voters are
qualified candidate,
is
as to that
then the ballot itself
ofa
name
race. See
392) (2002) (primary
(571
SE2d
inapplicable, this case is not an election contest illegally since irregularly legal who voted votes which were electors 163) Compare Smith, Middleton v. recorded. (2000) (irregularities election); Colwell, in conduct ballots); illegal, 570) (1993) (improperly cast, not *3 illegal ballot); supra (illegal Taggart voters, not Miller v. App. 328) (1976) (illegal Kilpatrick, voters, not ballot). upon irregu illegal Instead, Mead’s contention is based the larity illegality of those that were of the absentee ballots the contesting an election include returned and counted. Grounds for “irregularity any primary or election official or officials sufficient place receipt “illegal change the the of or in doubt result” and polls place the the result.” votes ... at sufficient doubt irregular (1), (3). illegal Thus, 21-2-522 OCGA§ rather than voters recording, preparation irregular the the of an issues here are receipt illegal irregularity when and the election officials issued of votes. The occurred
absentee that failed contain Mead’s ballots irregularly prepared The evidence shows that 481 of the name. County. 481 is absentee ballots were returned in Laurens Since greater margin victory, dispositive the than of the factor is Sheffield’s illegality returned, ballots of total absentee that were the limited number of those ballots which contained votes not contested Court of Appeals race. of an essen “Where omission is holding prerequisite election, of a valid such as . . . tial itself, is, course, [Cits.]” of the ballot election invalid. contents (2) (50 621) (1948), App. Carswell, State Ga. superceded grounds, Maye supra statutorily Pundt, at 246 on other (2), did not cast fn. 13. The electors who received the they legal illegal votes. As electors votes on irregularity quali- However, ballot. because the relates to the list of selecting, fied candidates from whom the electors were prohibited by inherently ballots were law and were therefore illegal, and their distribution to the unauthorized, voters was being and if the ballots voted as furnished and under a misapprehension validity operate of their did not to validate they unquestionably them, should be discarded. Ryan, supra
Alexander v. at 583 fallacy analysis in the trial court’s is demonstrated impossibility determining how the 481 electors would have voted they supplied proper Any had been ballots. number of the 243 may who voted for other candidates have voted for “Howard Mead” if appeared. possible that name It is that some of the 167 did who not vote in the contested race intended to vote for “Howard Mead” and anyone appear chose not to vote for when that name did not may It ballot. even be that some or all ofthe 71 who voted for “Thomas precisely Mead” would not have voted for “Howard Mead.” It is for this reason that we have held that the focus in an election contest involving illegal they ballots is on whether “exceeded ... the victory.” supra Fears, Howell v. at 628.
[i]t was not incumbent upon [Mead] to show how the [481] voters would have voted if their [absentee] ballots had been regular. enough irregu- He had to show that there were place lar ballots to in doubt the result. He succeeded in that task.
(Footnote omitted.) supra at 628. Admittedly, being Fears does contain the “in the contest chal- lenged” language appears involving in election contest cases irregular recording legal voters or the Nevertheless, votes. certainly apply principle we did not there in the same literal simply fashion as the trial court did so, here. Had we done we would *4 necessary, illegal have held that no new election was because the 43 ballots in Fears were not cast in Instead, the contested House race. clearly recognized illegal this that, Court case, ballot the comparison must be between the number of such ballots and the margin victory. right Fears, of In 43 electors were denied their to vote illegality because of the ballot, and a new election was ordered. County, they In Laurens 481 voters were disenfranchised because given were an absentee ballot which did not contain the names of all qualified seeking of those candidates fill to a seat on the Court of Appeals. only relevancy The of the 314 votes cast in the Court of candidate, each reduce total number ofvotes for race is to the illegal they appear and, therefore, are invalid votes. on ballots since understand that the was entitled to [T]he voter upon voting legal presented, thus he acted a and in it as enough assumption, vitiate and this is to such mistaken important Nothing possibly be than .... could more ballots beyond sanctity gravity the It transcends in far the of ballot. any any given might question be entitled as to case who a office. illegal Ryan, supra (3). When 58 votes are v. at 583
Alexander 207,473, 207,415. result is total of the deducted from Sheffield’s Reducing leaves a 207,091 total of votes balance Mead’s 207,020. is The is a 395-vote lead for Sheffield. 481 of difference concluding greater Therefore, no than 395. we “have hesitation all, After [Mead] [his] satisfied burden. the County[ ] [Shef- cast in . . . exceeded [absentee] [Laurens] ballots victory.” supra Fears, at 628. field’s] of Howell Mead states that the record shows that was not The dissent p. support prejudiced “by Dissent, the misnomer.” 278. compares percentage actually Mead assertion, it the votes that County received and in Laurens that which “Thomas statewide disputed However, the absentee Mead” received on ballots. such comparison comparison case, the is irrelevant. In this material Laurens absentee is between the actual number of ballots Mead’s name and the number of votes cast which failed contain controlling authority, him. which Sheffield holds a lead over Under required prevail, only prejudice he order for Mead to that was show was that the number of ballots was sufficient to cast upon election, doubt the result he has so shown. Howell supra at 628. Moreover, not, indicates, the trial did as the dissent term court irregularity p. Dissent, Instead, a “misnomer.” 276. ballots’ “wrong Mead’s first trial court’s order stated that the bore Mead,” name.” If the ballots had name other than “Howard then they for office. omitted the name one of candidates Maye supra Pundt, See of this state draws a at 245 law mere misnomer or an distinction between ballot which contains a irregularity provide form, fails to electorate as and one which duly qualified with a between all those candidates who have choice appear Accordingly, the dissent errone- to have their names ously thereon. expression to the the trial of doubt as effect of relies on court’s *5 irregularity, illegal the ballots’ because such ballots are deemed Georgia Ryan, supra. aas matter of law. See Alexander v. See also supra. Fears, mistakenly majority’s
The dissent that, states “under the ratio- misspelling nale, omission, name, or even a of a would render a illegal require a new if election the number of ballots cast generally margin victory.” p. exceed the Dissent, 279. To the contrary, holding today exceedingly our is narrow. In the limited qualified circumstance where a ballot omits the name candidate, aof illegal and, it is if the number of those ballots exceeds the victory, illegality requires then that that a new election be held so as provide opportunity complete the voters with an to select from a position. holding depar- slate of contenders for the This is neither a Georgia ture from nor an extension of election Fears, law. Howell v. supra; Ryan, supra. Alexander v. extremely
The courts should be hesitant to interfere with the process. lightly electoral grant fact, Mindful of that we did not decide to stay Having of the contested Court of election. granted stay only validity because of serious doubt as to the qualified the absentee ballots which failed to list all ofthe candidates upon office, correctly for the it is now incumbent us to resolve this election contest for the benefit of the electorate of this state. For the discussed, reasons erred, the trial court because the 481 absentee ballots in Laurens exceed Sheffield’s statewide lead consequence, and, over Mead as a the result of the election has been Remaining affirming cast trial doubt. reasons asserted as bases for including illegality court, Mead’s waiver of the ballots’ and the receipt by 105 ofthe absentee voters oforal notification the absence of a name, candidate’s have been considered and found to be without merit. (d) provides § that,
OCGA 21-2-527 trying [w]henever the court a contest shall determine that the ... election ... is so as defective to the ... office ... as to place in doubt the result of the entire election, . . . . . . such regard court shall declare the... election... to be invalid with to such ... office ... and shall call for a second... election... among to be conducted all of the same candidates who participated in the ... election ... to fill such ... officewhich was declared invalid and shall set the date for such second... election.... proper disposition appeal
Thus, the of this is a reversal of the judgment and a remand of the case to the trial court with direction (d), that, in accordance § with OCGA 21-2-527 it enter an order requiring seat be held to fill the a new statewide election supra. carrying Appeals. out that direc- Howell Court of expeditiously determining tion, court should act the trial giving specifics held, be new election should how and when the possible ofcandidates as the withdrawal consideration to such factors implemen- upon Secretary imposed of State and the duties process. tation of the election
Judgment Fletcher, remanded with direction. reversed and case *6 specially. J., Hines, J., Hunstein, J., Benham concur. concurs C. and Thompson, Judge Sears, J., JJ., and Neal W.Dickert dissent. P. and participating. not
HUNSTEIN,Justice, concurring specially.
majority
agree
that the
court’s order must be
I
the
trial
(571
392) (2002)
Fears,
and the
Howell v.
reversed.
perpetuating
by
dissent have been
a mis-
other
relied on
the
cases
language
stemming
understanding in the law
from unfortunate
used
Taggart
454, 455
in
challenged
Taggart
the
the
an election
in which
contestor
case
by
casting
unquali-
on the
ofvotes
the election based both
outcome of
irregularity
causedby
“illegal,”
fied, i.e.,
voters and on an
in the ballot
acknowledged
illegal
misaligned voting
Taggart
those
machines.
those
voter
that
limited review of election cases to
votes
cases
noting
particular contest,
that “to cast doubt
recorded in a
on
only necessary
(1)
electors voted
the
election it is
to show
that
in
particular
being challenged
(2)
and
contest
a sufficient
doubt on the election.
them were not
to vote so as
cast
“illegal
given
cases,
in
[Cit.]”
This limitation makes sense
voter”
Id.
unqualified
particular
the
the
noted
that if the
voter did not vote
contest
impact
practical
unqualified
had
voter’s
status could have
no
on
Taggart
irregular
issue,
outcome ofthat contest. As to the
ballot
by showing
“[similarly,
may
doubt
be cast on an election
resulting
improper
voting
maintenance of the
machines
votes
Unfortunately,
opinion
being
Taggart
Id.
then
[Cit.]”
miscast.
separate problems
inartfully
it
these
when stated that
combined
two
electors
“must show that a sufficient number of
voted
contestor
illegally
being challenged
irregularly
recorded
contest
or were
language
change
doubt on
election.”1
has been cited
to
in
challenged”
or cast
This
proposition
being
other cases
that the “contest
Howell and
for
irregular
applies
However,
limitation
ballot cases.2
appropriate phrasing
The
been the contestor “must
more
for that sentence would have
challenged
illegally
being
or were
show that
number of electors voted
the contest
a sufficient
irregularly
change doubt on the election.”
recorded to
votes,
speaks
“irregularly
Taggart
Howell and other cases
in terms of
recorded”
While
application
cases,
unlike the
voter
of this limitation makes no
qualified,
voters,
sense in a situation
where
all
were issued
irregular
election officials. That is because we cannot know
irregularity
what effect the
in the issued ballots had on the electors.
irregularity may
very
be the
reason an elector declined to vote in
particular
may
contest or chose not to vote at all. It
also be the
irregularity,
elector,
reason an
confused
chose instead to cast
a vote for another candidate in that contest. We do not know and
may
should not surmise what an elector’s intent
have been in
irregular
may
wrong
cases,
ballot
for we
well come to the
conclusion.
disapprove
supra,
It is for this reason that I
would
570) (1993)
Colwell,
I with the that not all errors on a ballot rise to a “irregu level sufficient to render the issuance of the flawed ballot an larity” part primary of a or election official under OCGA necessarily § 21-2-522 Assessment ofsuch errors must be handled case-by-case irregularities on a Furthermore, basis.5 those *7 change place sufficient to or in doubt the result can serve to invalidate agree majority an election. Id. In this case I with the that irregularity by County in the absentee ballots issued Laurens elec place tion officials was sufficient to in doubt the result ofthe Court of Appeals agree majority contest. I with the that the trial court’s judgment must be reversed and the case remanded with the direction er irregularity ballots that were issued because I consider it have petition, reasoning than Mead in impact take care in 481 absentee ballots that were returned and counted. concluding altered electors who failed to return the ballots or surmise that [3] expanded It follows that I must Thus I would also of the ill-considered which involved ballots and likewise involves rubber that following in the ballots. [5] Ryan, the Court of it to include stamp remaining casual irregularly A subtracting to add name of candidate not Appeals reject disagree language speculation regarding improper language 578, votes failed to cast in doubt the outcome of the election. This the alternate basis for the trial court’s dismissal of Mead’s recorded votes. contest from the total number of l with the the number of votes cast irregularity. Hence, (3) (43 in cases Taggart improper e majority lacking stands as an 654) (1947) (finding illegal x that our consideration is limited to the thorough analysis speculate regarding Instead I would include all absentee I would draw no distinction between their decision was unrelated to the a the intent of the electors. example why electors for candidates other to be on n of the ballot), ballots issued and the intent of those this Court should certain pertinent the adverse d law. expeditiously OCGA in accordance with court act that the trial (d). § 21-2-527 dissenting.
THOMPSON, Justice, irregular ballots cast the number of It has not been shown margin separating Sheffield exceeded the vote election contest in this respectfully Accordingly, dissent. I Mead. and open sought an seat on case, candidates6 six In this election primary non-partisan Georgia. Appeals held on After a Court of appeared July more than 45 no candidate received 20, 2004, it Bernes, percent frontrunner, would Debra vote, that the of the place Sheffield, in a runoff election finisher, Mike face the second (b). August 21-2-501 A recount 10, § OCGA 2004. See be held on Thereafter, yielded the can- 21-2-495. § See OCGA the same result. highest Mead, votes, number of Howard the third didate received who pursuant § 21-2- to OCGA the election results filed suit to set aside ground ballots in of official absentee 522, that a number improperly the name “Thomas were issued Laurens place irregularity in doubt Mead,” was sufficient and that primary election. result evidentiary hearing statewide, that, established
It was Mead, absentee and that 529 more votes than Sheffield received 382 issued to voters “Thomas” Mead were the misnomer ballots with generally, County. and 314 were those, Of 481 were Laurens received 71 of the race. “Thomas” Mead in the Court of voted votes cast. that the number Mead failed to show trial court determined between of votes absentee ballots exceeded
of defective judgment. affirm that and Mead. I would Sheffield presume contest are that the results of an election must We 759) Paschal, 267 Streeter v. valid. be invalidated unless Thus, an election will not irregularity contesting party illegality demonstrates an the election place Id.; in doubt the result. sufficient carry To Colwell, specific challenger burden, the must show that illegal *8 — be suffi that number must and election. McCranie v. the result of the cient to cast doubt on (478 377) (1996). Hunt v. Accord Mullis, 416 SE2d 267 Ga. 723) Taggart (507 (1998). v. Accord 270 7 SE2d Crawford, 6 Mead, Hawkins, Bernes, Ashley Howard Thomas C. The candidates were Debra William Sheffield, Rawlings, Wallace. and Lee Elizabeth Tarte Mike
277
Phillips,
(249
245) (1978).
Middleton v.
SE2d
(571
392) (2002),
superior court invalidated the election and appealed. Citing Taggart Phillips, supra, Howell v. and Miller v. Kilpatrick, App. 328) (1976), this Court held prevail that in order to contest, an election “the contestor must affirmatively illegally show that a sufficient number of voters voted irregularly being challenged or were recorded in the contest to make (Emphasis supplied.) a difference or cast doubt on the outcome.” supra Howell, at 627-628. Because Fears demonstrated that ballots cast in Precinct 9 exceeded the victory, judgment superior we affirmed the court. Our decision naturally Taggart Phillips, supra, flowed from in which this Court observed: only necessary (1)
[T]o cast doubt on an election it is to show being challenged that electors voted in contest (2) qualified Appellant a sufficient number ofthem were not to vote so as to cast doubt on the election. [Cit.] ... must illegally show that a sufficient number of electors voted irregularly being challenged were recorded in the contest they or cast doubt on the It election. is not for whom they illegally voted but that voted in this “race” or the votes irregularly were recorded. Taggart 268)
Id. at 455. Accord
seat. Colwell won the election 101 votes and Bailey contested the result. The evidence demonstrated that *9 general properly election, and in the cast were not absentee ballots Nevertheless, the for either candidate. did not vote that 409 electors superior doubt failed to cast on because ruled for Colwell court Looking Taggart question. particular race the outcome of the holding [Bailey] supra, affirmed, that “while we properly cast, he did not ballots were that 131 absentee established improper any cast in absentee ballots were of the establish that Bailey-Colwell not the Bailey, supra 112. at race.” consistently to the votes we must look held that we have being challenged to determine whether contest e.g., Mullis, 267 See, McCranie v. in doubt. ofthat race are the results cast in the number of votes Because margin (314) Appeals of than the votes race is less the of Court precedent (382), demands I believe our and Mead between Sheffield upheld. By looking of to the number be that the election generally, in the Court of of the ballots voted instead ballots cast precedent. departs Appeals majority this race, from the departure precedent majority justifies the because its from The appear In this the absentee ballots. Mead” did not on name “Howard — majority regard, “Thomas Mead” that the misnomer the concludes — majority’s problem nullity. The the ballots a rendered First, no evidence that the record contains is two-fold. conclusion prejudiced by Second, it flies in the face of the misnomer.7 Mead was superior [misno “it is doubtful this determination that court’s changed placed See in this in doubt the outcome.” mer] would have 329) (1943) Morris, 167, 174 connection Thacker v. (“while might in the submis follow the statute it have been better to question voters, that the form it is not considered sion confusing the voters or so as to mislead it submitted was which was intention”). contrary their votes to cause them to cast their alleging considering petition in the form a violation When guiding courts in ballot, “a vital consideration determining be voided is the in the an election should whether would result to reach a decision which reluctance regards Indeed, defects the voters. as disenfranchisement generally declined to void an ballots, have the courts prevent clearly operate defects election unless such open free, [Cit.] fair and choice.” fact, with 22.6 that Mead was credited otherwise. The record reveals the evidence is County, and that he received
percent ballots cast in Laurens the “Thomas Mead” absentee places. County polling It also shows percent cast at Laurens the “Howard Mead”ballots 22.6 percent statewide. 19.8 of all ballots cast that Mead received County Canvassing Fladell v.Palm Beach Board, 1240, 1242 772 S2d (Fla. 2000). proper evidence, Without sufficient and a determination superior court, that the absentee this case were so defective as to cast doubt race, on the Court of this Court should not interfere with the results rendered in that contest. majority professes opinion to have rendered an which is “exceedingly majority’s But rationale, narrow.” under the omis- misspelling sion, name, or even of a would render a ballot require generally a new election if the number of ballots cast exceed victory. goes deprives reviewing This too far because it court of the discretion to evaluate whether a ballot is so defective as *10 place respectfully the results of the Therefore, election in doubt. I dissent. Judge
I am authorized to state that Justice Benham and Neal W. join Dickert in this dissent. September 2004.
Decided Byrd, appellant. Hershovitz, Marc B. Nancy Charles W. for King Spalding, Jordan, I. Russ, & Michael C. John S. Bentley, Bentley Bentley, Bentley, Darden, Jr., Wasson, & Fred D. May, Harris, Sours, Sours & John D. Baker, Andrea L. Thurbert E. Attorney Deputy Attorney General, Dunn, General, Dennis R. Stefan Attorney appellees. Ritter, E. Senior General, Assistant for Ashley pro Hawkins,
W. se. Rawlings, pro
Thomas C. se. pro Wallace,
Lee Tarte se.