Allen v. Yost, S06A1006.
| Decision Date | 16 October 2006 |
| Docket Number | No. S06A1006.,S06A1006. |
| Citation | 636 S.E.2d 517,281 Ga. 102 |
| Parties | ALLEN v. YOST et al. |
| Court | Georgia Supreme Court |
Kim Mark Minix, Moore, Clarke, Duvall & Rodgers, P.C., Albany, for Appellant.
Franklin T. Coleman, III, Hodges, Erwin, Hedrick & Coleman, LLP, Maurice Luther
King, Jr., Albany, Edward R. Collier, Collier & Gamble, Dawson, for Appellee.
Appellant Carolyn C. Allen and appellee Charlie Sanders were candidates for the office of City Council for Ward 5 in the city of Dawson, Georgia. The election was held on November 8, 2005, and the results were consolidated and certified on the next day. Sanders was declared the winner by one vote. Allen requested and received a recount of the election results under OCGA § 21-2-495, but the outcome remained the same.
Thereafter, Allen filed a petition against City of Dawson Election Superintendent Pat Yost, Charlie Sanders and others (appellees herein), contesting the results of the election. Sanders filed a motion to dismiss claiming that Allen's petition was moot because she failed to bring her claim prior to the election. After hearing argument on the motion to dismiss, but prior to a scheduled evidentiary hearing on the merits of the petition, the trial court entered an order granting Sanders' motion to dismiss. We reverse.
Allen brought her claim specifically invoking OCGA §§ 21-2-521 and 21-2-522(1) and (3). OCGA § 21-2-521 allows a candidate to contest "the election of any person who is declared elected" to the office for which that candidate ran. OCGA § 21-2-522 sets forth the grounds available to contest election results. Allen's petition alleged that the election results were placed in doubt due to misconduct, fraud, or irregularity by election officials, OCGA § 21-2-522(1); and that illegal votes were cast in the election sufficient to change or place in doubt the result, OCGA § 21-2-522(3).1 Such petition is timely if it is filed within five days of the official consolidation of the returns or, in the case of a recount, within five days after consolidation and certification of the results of the recount. OCGA § 21-2-524(a). Allen's petition was filed on the same day that the recount results were certified.
Sanders' motion to dismiss was predicated on OCGA § 21-2-230(a), which provides that any elector "may challenge the right of any other elector of the county or municipality, whose name appears on the list of electors, to vote in an election," and that such "challenge may be made at any time prior to the elector whose right to vote is being challenged voting" either at the voting place or by absentee ballot. The trial court adopted Sanders' argument and concluded that Allen's challenge to the qualifications of electors was untimely under OCGA § 21-2-230 because it was not filed prior to the election. In further support of its ruling, the trial court relied on Jordan v. Cook, 277 Ga. 155, 587 S.E.2d 52 (2003).
Anderson v. Flake, 267 Ga. 498, 501(2), 480 S.E.2d 10 (1997).
Although OCGA § 21-2-230 provides a means for an elector to challenge the qualifications of another elector prior to the election, it is not the only procedure available to a candidate who wishes to challenge the results of an election. First, OCGA § 21-2-230 is framed in permissive language. And as noted previously, Allen's challenge specifically was brought pursuant to OCGA §§ 21-2-521 and 21-2-522(1) and (3). The plain language of those statutes permit a post-election challenge on the grounds enumerated in OCGA § 21-2-522. That is exactly what Allen's timely petition alleged. There is simply no statutory provision or case law to support the proposition that a candidate must challenge the illegal votes prior to the election or else be foreclosed from bringing an election contest. See e.g., Taggart v. Phillips, 242 Ga. 454, 249 S.E.2d 245 (1978) (...
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