Howell v. Fears, S03A0136.
| Decision Date | 15 October 2002 |
| Docket Number | No. S03A0136.,S03A0136. |
| Citation | 275 Ga. 627,571 S.E.2d 392 |
| Parties | HOWELL v. FEARS. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
McKenna, Long & Aldridge, David Balser, Gregory S. Brow, Atlanta, for appellant.
Smith, Welch & Brittain, A.J. Welch, Jr., L. Scott Mayfield, Beck, Owen & Murray, James R. Fortune, Jr., Griffin, for appellee.
On August 20, 2002, a total of 2,660 registered voters in Spalding, Lamar and Butts Counties cast ballots in the race to determine the Democratic nominee for State Representative in House District 92. Lee N. Howell and William A. Fears were the only candidates in that race. The voters cast 1,347 votes for Howell and 1,313 votes for Fears, a difference of 34 votes.
It was subsequently discovered that the ballots in Precinct 9 of Spalding County made no mention of the House District 92 race. A total of 43 registered voters cast ballots in that precinct.1
Fears contested the results of the primary election, asserting the omission of the House District 92 race from the ballots in Spalding County's Precinct 9 was sufficient to place the result of the election in doubt. The superior court agreed. It invalidated the results of the primary election and ordered that a new election be held on October 22, 2002. Howell appeals, and we granted his motion for expedited review.
OCGA § 21-2-522(1) provides that the result of an election may be contested for "[m]isconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result." In order to prevail under this Code section, the contestor must affirmatively show that a sufficient number of voters voted illegally or were irregularly recorded in the contest being challenged to make a difference or cast doubt on the outcome. Taggart v. Phillips, 242 Ga. 484, 249 S.E.2d 268 (1978); Miller v. Kilpatrick, 140 Ga.App. 193, 230 S.E.2d 328 (1976). We have no hesitation in concluding that Fears satisfied that burden. After all, the number of irregular ballots cast in Spalding County's Precinct 9 exceeded Howell's margin of victory.
It was not incumbent upon Fears to show how the Precinct 9 voters would have voted if their ballots had been regular.2 He only had to show that there were enough irregular ballots to place in doubt the result. He succeeded in that task.
Howell asserts the superior court erroneously ordered a new primary election for the entire House District inasmuch as irregular ballots were only cast in Precinct 9. We disagree.
OCGA § 21-2-527(d) provides:
Whenever the court trying a contest shall determine that the primary, election, or runoff is so defective as to the nomination, office, or eligibility in contest as to place in doubt the result of the entire primary, election or runoff for such...
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