Martin v. Fulton Cnty. Bd. of Registration & Elections

Decision Date31 October 2019
Docket NumberS19A0769
Citation307 Ga. 193,835 S.E.2d 245
CourtGeorgia Supreme Court

Bruce Perrin Brown, Bruce P. Brown Law LLC, Atlanta, for Appellant.

Joshua Barrett Belinfante, Vincent Robert Russo, Carey Allen Miller, Alexander Fraser Denton, Robbins Ross Alloy Belinfante Littlefield LLC, Atlanta, Annette M. Cowart, Russell David Willard, Christopher M. Carr, Andrew Alan Pinson, Department of Law, Atlanta, Patrise M. Perkins-Hooker, Kaye Woodard Burwell, Cheryl Melissa Ann Ringer, David Robert Lowman, Office of the Fulton County Attorney, Atlanta, Richard A. Carothers, Brian Richard Dempsey, Carothers & Mitchell, LLC, Buford, Bryan Paul Tyson, Frank B. Strickland, Bryan Francis Jacoutot, Bryan Paul Tyson, Taylor English Duma LLP, Atlanta, Edward H. Lindsey, Dentons US LLP, Atlanta, for Appellees.

Russell Todd Abney, Blake Todd Tanase, Ferrer, Poirot & Wansbrough, Sandy Springs, for Amicus Appellant.

Warren, Justice.

In this case, Petitioners challenge the 2018 election for lieutenant governor—an election in which more than 3.7 million Georgians cast a vote—alleging that defects in electronic voting machines cast doubt on the election in which Geoff Duncan defeated Sarah Riggs Amico by 123,172 votes.1

Elections are critical to our democratic republic. We give great credence to the choices citizens make when they engage in the democratic process by voting to select their representatives. And because we place so much value on that exercise of democracy, we afford great weight to election results. Indeed, "[t]he setting aside of an election in which the people have chosen their representative is a drastic remedy that should not be undertaken lightly, but instead should be reserved for cases in which a person challenging an election has clearly established a violation of election procedures and has demonstrated that the violation has placed the result of the election in doubt." Hunt v. Crawford , 270 Ga. 7, 10, 507 S.E.2d 723 (1998).

Georgia law nonetheless allows elections to be contested through litigation, both as a check on the integrity of the election process and as a means of ensuring the fundamental right of citizens to vote and to have their votes counted accurately. See OCGA § 21-2-520 et seq. But an election contest is, by statutory design, an expedited proceeding—and one that vests in trial courts broad authority to manage the proceeding, including to "proceed without delay to the hearing and determination of" the election contest. See OCGA § 21-2-525 (b). This system balances citizens' franchise against the need to finalize election results, which, in turn, facilitates the orderly and peaceful transition of power that is a hallmark of our government.

As explained in more detail below, Petitioners claim that they placed in doubt the election for lieutenant governor (and thus established that a new election was required) by offering evidence of a few specific instances of electronic voting machine malfunction, and of statistical differences in voting patterns between the 2018 general election and prior general elections that they say show that Georgia's "profoundly vulnerable machines caused thousands of voters using electronic machines to either not vote for Lieutenant Governor or for those votes not to be counted."

This Court has long held that " ‘the party contesting the election has the burden of showing an irregularity or illegality sufficient to change or place in doubt the result of the election.’ " Meade v. Williamson , 293 Ga. 142, 143, 745 S.E.2d 279 (2013) (citation omitted). To prevail on such a claim, a party contesting an election must therefore offer evidence—not merely theories or conjecture—that places in doubt the result of an election. And although the technology our State has used to conduct elections has changed over time, the burden a party carries when challenging the result of an election has not. The Petitioners in this case have not carried that burden, and the discussion that follows explains why.

In Division 1, we chronicle Petitioners' claims from the time they were filed in the days after the November 6, 2018, statewide general election, until the trial court granted a motion to involuntarily dismiss Petitioners' then-remaining state law election contest claim after trial in January 2019. In Division 2, we review Petitioners' four enumerations of error related to pre-trial discovery—including claims that the trial court did not allow reasonable time for discovery, did not permit needed discovery, and wrongly denied Petitioners' motion to compel and motion for continuance. We conclude that, given the Election Code's statutory mandates and the broad discretion trial courts are given to manage pretrial discovery, the trial court did not abuse its discretion. In Division 3, we review Petitioners' two enumerations of error related to the involuntary dismissal of their election contest claim—that the trial court made an erroneous factual finding about the number of potential illegal or irregular votes in the election for lieutenant governor, and that the trial court erred in its legal analysis of whether Petitioners met their burden of presenting sufficient evidence of irregularities related to electronic voting machines used in the 2018 general election. We conclude that, although the trial court made at least one clearly erroneous finding of fact, it reached the correct legal conclusion when it determined that Petitioners failed to meet their burden of presenting evidence that places in doubt the result of the election for lieutenant governor. Finally, in Division 4, we review and reject Petitioners' unsupported argument that the trial court erred by denying Petitioners' request for a jury trial. As a result, we affirm the trial court's dismissal of Petitioners' petition contesting the election for lieutenant governor.

* * *

On November 6, 2018, a statewide general election was held to elect Georgia's next Governor and a number of other statewide officials, including (among others) Attorney General and Secretary of State.2 3,780,304 ballots were counted in the election for Georgia's Lieutenant Governor; candidate Geoff Duncan received 1,951,738 votes and candidate Sarah Riggs Amico received 1,828,566.3 Duncan therefore won the election with a margin of victory of 123,172 votes.

On November 23, 2018, Petitioners—the Coalition for Good Governance (a nonprofit organization organized under Colorado law but apparently headquartered in North Carolina), Rhonda J. Martin (an "aggrieved elector"), Jeanne Dufort (an "aggrieved elector"), and Smythe DuVal (a voter and the Libertarian Party candidate for Secretary of State of Georgia in the November 2018 election)—filed a petition under OCGA § 21-2-520 et seq. contesting the election.4 They sued the Secretary of State of Georgia; the Gwinnett, DeKalb, and Fulton County Boards of Registration and Elections; and then-Lieutenant Governor-elect Geoff Duncan ("Defendants"), requesting (among other things) that the lieutenant governor election be declared invalid and a new election ordered that did not use the direct-recording electronic ("DRE") voting system.

After approximately seven weeks of motions practice, multiple hearings, accelerated discovery, and a two-day bench trial5 the trial court granted Defendants' motion for involuntary dismissal of Petitioners' petition. See OCGA § 9-11-41 (b) ("After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief."). Arguing that the trial court abused its discretion and committed legal error when it dismissed the petition, Petitioners now appeal. Specifically, they contend that 159,024 fewer ballots were cast for lieutenant governor than for governor in the 2018 general election—an undervote of approximately 4 percent—and that when compared to historical voting patterns—which they argue show only a 0.8 percent average undervote between elections for governor and lieutenant governor over the previous four general elections—the difference constitutes an "[e]xtreme [u]ndervote" that places in doubt the result of the election for lieutenant governor and requires a new election under OCGA § 21-2-527 (d). In its most basic form, Petitioners' argument is that the "proven vulnerability" of Georgia's electronic voting machines, coupled with this "[e]xtreme [u]ndervote" and with specific instances of voting machine malfunction, place in doubt the election result for the office of lieutenant governor.

What follows below is a comprehensive review of the key events that transpired in this case leading up to trial, as well as a summary of the evidence presented at trial. Although these events occurred over the span of only a few months, there was—to say the least—a large volume of communications between the many lawyers on this case, motions made before the trial court, and legal briefing filed in the trial court (and later in this Court). A thorough recounting of those events and arguments is necessary to illuminate the record that was created before and during trial, and therefore constitutes the record we review today on appeal. In light of that record, the relevant statutes, and case law interpreting those statutes, and given our review of the trial court's factual findings and legal conclusions in this case, we affirm the dismissal of Petitioners' petition.

1. Procedural and Evidentiary History .
(a) The Petition and Other Post-Election Motions.

Georgia held a statewide general election on November 6, 2018. On November 23, 2018, Petitioners timely filed a petition contesting the election for lieutenant governor, alleging three counts. Count 1, the state law election contest...

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