Johnson v. Rheney, 35564
| Decision Date | 26 February 1980 |
| Docket Number | No. 35564,35564 |
| Citation | 245 Ga. 316,264 S.E.2d 872 |
| Parties | JOHNSON et al. v. RHENEY et al. |
| Court | Georgia Supreme Court |
H. Christopher Coates, Laughlin McDonald, Neil Bradley, Atlanta, for appellants.
Fred Raskin, Louisville, Roy V. Harris, Augusta, for appellees.
On December 9, 1978, an election was held in the City of Wadley to fill two vacancies on the city council. The votes were recorded as follows: Jack D. Gladen, 527; Jerry D. Cowell, 505; B. A. Johnson, 501; Joseph E. Gibbons, 406; Herman Baker, 166. Gladen and Cowell, both of whom were white candidates, were declared the winners. Johnson and Gibbons, both of whom were black candidates, filed an election contest pursuant to Code § 34A-1501(a) with the Wadley City Council. Their challenge was denied, and they appealed to the Superior Court of Jefferson County pursuant to Code § 34A-1501(b). Following a two-day bench trial, Judge James B. O'Connor issued his detailed and well-reasoned judgment holding, among other things, that none of the cited irregularities placed the result of the election in doubt. Appellants then brought their appeal to this court enumerating seven errors allegedly committed by the trial judge. Held:
1. The applicable Code section enumerating the grounds for an election contest of a municipal election is Code § 34-1703. See Davidson v. Bryan, 242 Ga. 282, 284, 248 S.E.2d 657 (1978). That section provides that the "result of a primary or election may be contested on one or more of the following grounds: (a) Malconduct, fraud or irregularity by any primary or election official or officials sufficient to change or place in doubt the result . . ." (Emphasis supplied.) Election returns carry a presumption of validity. Cowart v. City of Waycross, 159 Ga. 589, 594, 126 S.E. 476 (1924). Therefore, the burden is on the appellants in this case to affirmatively show that the facially valid results were invalid due to an irregularity sufficient to place the entire election result in doubt.
Appellants first presented evidence that the number of votes tallied by the voting machines was 1,066, while only 1,064 people actually voted using the machines. Appellants contend that this is proof of an irregularity which shifted the burden of going forward with rebuttal evidence to appellees. Appellees offered testimony that the election officials investigated the discrepancy, could not explain the difference in the tally, and that following this investigation the superintendent of elections certified the results. The trial court held that appellants failed to show that amount of fraud, irregularity or improper voting that would set the results of the election aside.
We agree. Appellants maintain that it will hereafter be impossible for a contestant to withstand the burden of proof when election officials may simply respond that they cannot tell what happened. However, here appellees did explain to the best of their knowledge that their vote count was accurate, after extensive effort to account for the discrepancy, and that their certification that 1,064 voters voted was correct. Though election results might not always be upheld simply due to a good faith investigation into an irregularity and a resulting certification, in this case we are satisfied that there was ample evidence for the trial court to find that this alleged irregularity did not place the election results in doubt.
2. Minnie Durden, a black resident of Wadley, attempted to vote by absentee ballot. Her ballot was ultimately rejected by election officials because it did not provide certain information requested on the ballot, such as address, date of birth, place of birth and mother's maiden name. Appellants contend that Mrs. Durden's ballot was rejected in a racially discriminatory manner since other white absentee voters were notified that their ballots were incomplete and allowed to cancel their ballots and vote in person, and, in one case, an absentee ballot of a white voter was accepted with incomplete information. The trial judge found that no racial discrimination had been demonstrated.
Code § 34A-1308(a) provides that if an absentee ballot is received and rejected, the clerk shall promptly notify the elector of such rejection. The evidence indicated that Mrs. Durden had had difficulty in filling out her ballot and was trying to retrieve it from the post office. In so doing, she talked with election officials prior to their receipt of the ballot who suggested that she cancel her ballot and vote in person. Instead, she did retrieve her ballot and signed it, but failed to fill it out completely the second time as well. Based on this evidence, the trial court held that there was no way that the officials could have known that Mrs. Durden needed to be notified a second time. Despite the fact that other absentee voters were notified and did come and cancel their ballots and vote in person, we hold that the trial court was correct in holding that the evidence presented on the treatment of Mrs. Durden's ballot was insufficient to demonstrate racial discrimination on the part of election officials.
As to the one incomplete absentee ballot accepted from a white voter, David C. Perez, the evidence showed that an official assisted him in filling out his ballot. Only his address was missing, because he had recently moved and could not remember his street address, but he was known by the official to be a resident of Wadley. On this basis, this ballot was accepted, and the trial court correctly ruled that no racial discrimination resulted through the different treatment of the absentee ballots of Mrs. Durden and Mr. Perez.
3. Appellants contend that four persons were allowed to vote in the disputed election who were not, in fact, residents of Wadley. The trial court held that since different fact-finding agencies could reasonably differ as to whether these four voters were residents or not, then it would not disturb the finding by the Board of Registrars that these people were residents.
Appellants argue that the superior court did not apply the correct de novo review...
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Smith v. Long Cnty. Bd. of Elections
...to comply strictly with provisions of former OCGA § 21-2-381 did not warrant rejection of electors’ votes); Johnson v. Rheney , 245 Ga. 316, 319-20 (6), 264 S.E.2d 872 (1980) (concluding that 12 absentee ballots that were issued to electors who did not apply for them but were properly execu......
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...Justice. We granted these parties' cross applications for certiorari on the following questions: "Whether the holdings in Johnson v. Rheney, 245 Ga. 316(4) (1980), and Wight Hardware Co. v. American Lubricants Co., 91 Ga.App. 339 (1954), were properly applied to the facts of this case" (Cas......
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...laws can in themselves constitute an irregularity sufficient to place the entire election result in doubt. See also Johnson v. Rheney, 245 Ga. 316, 264 S.E.2d 872 (1980) (the plaintiff's burden in an election contest is "to affirmatively show that the facially valid results were invalid due......
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Hunt v. Crawford, S98A0654.
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