Rhoden v. Athens-Clarke Cnty. Bd. of Elections

• Decision Date: 19 October 2020
• Docket Number: S21A0030
• Citation: 850 S.E.2d 141,310 Ga. 266
• Parties: RHODEN et al. v. ATHENS-CLARKE COUNTY BOARD OF ELECTIONS et al.
• Court: Georgia Supreme Court

310 Ga. 266

850 S.E.2d 141

RHODEN et al.

v.ATHENS-CLARKE COUNTY BOARD OF ELECTIONS et al.

S21A0030

Supreme Court of Georgia.

Decided: October 19, 2020

David Felts Ellison, Ellison Law, 248 Prince Avenue, Athens, Georgia 30601, Attorneys for the Appellant.

Thomas Monroe Mitchell, Carothers & Mitchell, LLC, 1809 Buford Highway, Buford, Georgia 30518, David Warren Griffeth, Law Offices of David W. Griffeth, 220 College Avenue, Suite 612, Athens, Georgia 30601, Attorneys for the Appellee.

Bethel, Justice.

Jerry NeSmith earned the support of a sufficient number of his community members to be elected as their district's commissioner for the Athens-Clarke County Unified Government. Sadly, NeSmith died just three days before Election Day. In addition to the personal loss of his family and friends, NeSmith's death before Election Day ultimately resulted in an electoral loss for his supporters, a number of whom joined to bring suit in superior court challenging the results of the election.

Because the applicable Georgia statutes dictate that votes cast on paper ballots for a candidate who has died before Election Day are void, none of the votes cast for NeSmith had legal effect. Accordingly, for reasons more fully explained below, we determine that the Athens-Clarke County Board of Elections properly applied OCGA §§ 21-2-437 (d) and 21-2-438 (a) when it voided the votes cast for NeSmith and declared Jesse Houle the commissioner-elect for Athens-Clarke County Commission District 6. Moreover, we also hold that the Board's application of those statutes in this case did not violate any rights of the appellants under the First or Fourteenth Amendments to the United States Constitution or the equal protection clause of the Georgia Constitution. Accordingly, we affirm the order of the superior court dismissing the appellants’ election challenge.

1. Factual background and procedural history

Jerry NeSmith and Jesse Houle qualified as candidates for the non-partisan election for Athens-Clarke County Commission District 6, which was held on June 9, 2020. NeSmith died on the evening of June 6. The election proceeded, and 3,271 ballots were cast in the race for the District 6 seat. Of those ballots, 1,866 were marked for NeSmith, and 1,405 were marked for Houle. The Athens-Clarke County Board of Elections ruled that, pursuant to OCGA §§ 21-2-437 (d) and 21-2-438 (a) and this Court's decision in Jones v. Norris , 262 Ga. 468, 421 S.E.2d 706 (1992), all votes cast for NeSmith were void because he was deceased. On June 19, 2020, the Board certified the results of the election and declared Houle the winner of the District 6 election.

The appellants—Gordon Rhoden, Farol NeSmith, Rock Dunn, Jim Scanlon, and Judith Scanlon—are all registered voters who reside in District 6. On June 23, 2020, they filed a petition pursuant to OCGA § 21-2-521 et seq., challenging the results of the election on several grounds. The Board and Houle answered on July 10, 2020, and the superior court held a hearing on July 23, 2020.

At that hearing, the appellants called Charlotte Sosebee, the Director of Elections for Athens-Clarke County, to testify. On direct examination, she testified that ballots cast in person were cast "electronically" utilizing a "ballot marking device" and that provisional and absentee ballots were cast through the use of paper ballots.

On cross-examination, Director Sosebee elaborated that, under the voting system in place for the June 9 election, when a voter came to a polling location to vote in person, the voter was issued an electronic access card that was programmed with the offices and candidates for which that voter was qualified to vote based on the voter's address. After receiving the ballot access card, the voter inserted the card into an electronic ballot marking device. The device's screen then displayed the information from the access card showing the offices and candidates for which the voter was eligible to cast a vote. The voter then made selections for any or all of the displayed elections through use of the electronic ballot marking device and was then able to view all selections on a final summary screen. Once the voter's choices were confirmed on the screen, the voter's ballot was printed onto a paper form showing the selections made by the voter, and the voter had an additional opportunity to view and confirm or modify the selections for each office. The paper ballot was then inserted into an electronic tabulating device that scanned the paper ballot, counted the votes cast for each candidate, and recorded the votes in a central database. The paper ballot remained inside the device until collected by a poll manager who then sealed the paper ballots. The paper ballots were then to remain sealed until opened by the Board of Elections if the need arose, such as the need to conduct a recount. Director Sosebee testified that, even though an electronic ballot marking device and an optical scanner were utilized in the election, the ballots cast in this process were "paper ballots."

On July 27, 2020, the superior court entered an order denying the appellants’ requested relief and dismissing their petition. In that order, the superior court found that the election had been conducted with paper ballots with the assistance of an optical scanning voting system and electronic ballot marking devices, noting that these were simply "alternate systems for marking or employing paper ballots." The superior court thus determined that, under Jones , OCGA §§ 21-2-437 (d) and 21-2-438 (a) applied to this election and that the Board was correct in its assessment that the votes cast for NeSmith were void due to his death. The superior court also rejected a number of constitutional arguments raised by the appellants, including that their rights to vote, to have their votes counted, to equal protection, and to freedom of association had been violated by the Board's decision. The superior court also rejected the appellants’ argument that the Board's decision was arbitrary and capricious in violation of their rights to due process.

The following day, the appellants filed a notice of appeal directed to this Court. The parties submitted briefs on an expedited basis, as ordered by this Court. We now consider, in turn, each of the claims raised by the appellants.

2. Application of OCGA §§ 21-2-437 (d) and 21-2-438 (a) to votes cast for NeSmith

Ordinarily, the candidate who receives the most votes in an election wins or at least advances to a runoff against the person receiving the second highest number of votes. See OCGA § 21-2-501 (a) (1).¹ However, the relevant portions of OCGA §§ 21-2-437 (d)² and 21-2-438 (a)³ provide that "[i]n elections, votes for candidates who have died or been disqualified shall be void and shall not be counted." The Board of Elections applied this straightforward rule in this case to void all of the ballots marked for NeSmith who, due to his death, was no longer eligible to serve in the office for which this election was held. Thus, even though more ballots were marked for NeSmith than for Houle, all votes cast for NeSmith were void. Houle was then declared the winner of the election because all valid votes cast in the District 6 election were cast for him.

The appellants argue that the rule embodied in OCGA §§ 21-2-437 (d) and 21-2-438 (a) applies only in elections conducted with paper ballots and that, because the Board utilized electronic ballot markers and an optical scanning voting system to administer the election for District 6, that election was not conducted with paper ballots. They further argue that, for elections conducted with electronic ballot markers and an optical scanning voting system, the election code is silent as to how election boards should treat votes cast for a candidate who has died. They argue that the superior court erred by not overturning the decision of the Board and applying the common law to order that a new election for District 6 be held, citing Thompson v. Stone , 205 Ga. 243, 247, 53 S.E.2d 458 (1949) ("Unless the votes for an ineligible person are expressly declared [by statute] to be void, the effect of such person receiving a majority of the votes cast is ... that a new election must be held, and is not to give the office to the qualified person having the next highest number of votes."). We disagree.

Here, Director Sosebee testified that voters utilized electronic ballot marking devices to make their selections for each office. Upon confirmation of the voter's selections on the marking device, the voter's ballot was then printed onto a paper form which, after the voter had another opportunity to confirm or modify his or her selections, was fed into an electronic tabulating device that optically scanned the paper, counted the votes cast for each office, and recorded the votes in a central database. Director Sosebee testified that, even though an electronic marking device and an optical scanner were utilized in the election, all of the ballots cast through this process were "paper ballots."

The superior court's conclusion that the election was conducted with paper ballots was therefore supported by the evidence before it. Although various technologies were used to mark and count ballots in this election, each of the technologies implemented by the Board simply assisted voters in making their selections on paper and aided the Board in receiving, organizing, and tracking votes cast by paper ballot in a clear and uniform manner.

Our decision in Jones contemplates that multiple technologies for marking and counting paper ballots can be used in a given election and that the election should still be deemed to have been conducted via paper ballots. See 262 Ga. at 468, 421 S.E.2d 706. In Jones , this Court held that there was no distinction between a paper ballot marked by a pencil and a cardboard ballot marked by a punch. See id. We thus determined that OCGA § 21-2-438 (a), which we noted "govern[s]...