Smith v. Long Cnty. Bd. of Elections

• Citation: 862 S.E.2d 517
• Decision Date: 24 August 2021
• Docket Number: S21A0591
• Parties: SMITH v. LONG COUNTY BOARD OF ELECTIONS AND REGISTRATION et al.
• Court: Supreme Court of Georgia

862 S.E.2d 517

SMITH

v.LONG COUNTY BOARD OF ELECTIONS AND REGISTRATION et al.

S21A0591

Supreme Court of Georgia.

Decided: August 24, 2021

James Cullen Evans, Phil James George, Robert Sparks Highsmith, Holland & Knight LLP, 1180 West Peachtree Street NW Suite 1800, Atlanta, Georgia 30309, for Appellant.

Christopher Joel Osteen, Osteen Law Group, LLC, P. O. Box 1309, Hinesville, Georgia 31310, James Benjamin Smith, 15618 US Highway 17, Townsend, Georgia 31331, Luke Roche Moses, Jones Osteen & Jones, 206 East Court Street, Hinesville, Georgia 31313, for Appellee.

McMillian, Justice.

Appellant Bobby Harrison Smith ran against Teresa Odum for the office of Probate Judge of Long County on June 9, 2020 (the "Election").¹ Following Odum's victory, Smith filed a petition to contest the Election results, alleging there were (1) irregularities committed by election officials, (2) illegal votes cast in the election, and (3) wrongfully rejected votes (collectively "irregularities"). After a three-day bench trial, the trial court concluded that the evidence was insufficient to cast doubt on the results of the Election and denied the petition. Smith now appeals, asserting in four related enumerations of error that the trial court erred by not ordering a new election. For the reasons that follow, we affirm.

Construed in the light most favorable to the trial court's ruling,² the evidence shows that the results of the Election were certified on June 19, 2020, showing a total of 2,735 votes, with 1,372 cast for Odum and 1,363 cast for Smith. The Long County Board of Elections and Registration (the "Board") conducted a recount of the Election results, in which additional mail-in absentee ballots were located and one provisional ballot allocated to Odum was reallocated to Smith. The results of the recount were certified on June 26, 2020, showing the same nine-vote margin of victory for Odum with a total of 2,741 votes – 1,375 cast for Odum and 1,366 cast for Smith. Smith filed a "Petition to Contest Election Result and Request for New Election" against the Board and Odum on July 1, 2020, which he amended on August 28, 2020.

Smith claimed that 30 votes were improperly or irregularly cast and categorized these votes at trial into five different "Buckets." According to Smith, eight "Blanks" failed to properly complete their absentee ballot applications or absentee ballots. Five "Outsiders" who lived outside of Long County improperly cast a vote in the Election, and two "Movers" allegedly voted in the Election despite having moved out of Long County more than 30 days before the Election. Seven "Doubles" allegedly cast two ballots in the Election. In the final Bucket, Smith challenged eight "Unverifieds," whose in-person early voting applications do not indicate that their identification was checked by the poll workers.³ Odum and the Board acknowledge that seven votes were improperly cast: six individuals who voted twice and another individual who had never resided in Long County. At trial, the following evidence was presented.

(a) Blanks. Mele Savea, who Smith contends failed to sign the oath of elector ("Oath") on her absentee ballot, testified that she voted for the first time in 2020 and that she accidentally did not sign on the line provided for her signature on the Oath.⁴ She also testified that she did not receive anything from the Board telling her that she needed to correct anything on her ballot and that the absentee ballot she submitted accurately reflected the vote she wanted to cast.

Lonnie Fowler testified that he cannot read or write and that he asked his wife, who helps him with all his "legal matter[s]," to fill in his choices and sign the Oath for him on his absentee ballot.

Smith alleged that Sajah Jones, who was unavailable to testify at trial due to her active military duties, failed to sign her absentee ballot application and that her signature for the Oath did not match her voter registration signature. Sajah's mother, Fredericka Jones, testified that Sajah was excited to vote for the first time and that she saw Sajah sign the Oath, but Fredericka agreed that Sajah's signature on her voter registration card looked different from the signature on her Oath. Fredericka received correspondence from the Board regarding verification of Sajah's signature,⁵ but forgot about it because she was preparing her daughter for basic training.

Wesley Worthy testified that he is active-duty military and a permanent resident of Long County. Although his step-mother, Thelma Worthy, assisted him in the application process for an absentee ballot, he personally signed the Oath on the absentee ballot. He confirmed that the signatures on his voter registration card and the Oath were his. He agreed that the signatures may appear "a little different" because he signed his voter registration card on an electronic pad. Thelma testified that she did not know she was not permitted to request an absentee ballot for her step-son, whom she had raised since he was an infant. She denied filling out the actual ballot or signing the Oath for him.

Roy Odum (no relation to Teresa Odum) testified that his wife Bethany Odum filled out his absentee ballot application to help him while he was working out of town. He testified that he personally signed the Oath on the ballot and that it looked like his handwriting and not his wife's. He also confirmed that the handwriting on both the Oath and his voter registration card was his. Although he agreed the signatures looked different, he explained that sometimes his signature looks different depending on when and how he signed it. Bethany testified that she and her husband discussed the candidates he wanted to vote for, that she filled in the bubbles on the ballot, and that they then confirmed that his choices were reflected on his absentee ballot before Roy personally signed the Oath.

Elizabeth Elarbee, who was 84 years old at the time, did not sign her absentee ballot application. However, she testified that she completed the application herself and must have accidentally failed to sign the application. She confirmed that she signed the Oath on the absentee ballot she submitted.

Mary Poppell testified that her daughter-in-law helped request her absentee ballot because Poppell was caring for her dying husband at the time. She later filled out the absentee ballot she received without assistance and signed the Oath herself. She testified that the ballot accurately reflected her vote.

Eva Ashley testified that she filled out the information in the absentee ballot application herself but must have forgotten to sign it. She later completed the absentee ballot at home and signed the Oath.

Trynina Harris, the Board's Supervisor, testified that the Board sent affidavits to those voters who did not sign their absentee ballot applications or whose signatures did not appear to match their voter registration card, but did not specifically testify whether affidavits had been sent to the Blanks. She also did not have personal knowledge of which voters returned their affidavits. She explained that if a voter printed his or her name instead of signing, the Board tried to compare the writing to that on the voter's registration card. Harris also testified that citizens who requested an absentee ballot for someone they were assisting were sometimes confused by the application and signed the application as the requester rather than the assister.

(b) Outsiders. Smith called Mark Davis as an expert witness in digital mapping and geocoding and voter data analytics. Relying on United States Census data, Davis testified that David and Cheryl Keetch, Stanley and Diana Edwards, and Shaana Ito actually live in Liberty County and that the Long County property tax records were incorrect. He admitted that geocoding is "not a perfect science" and that surveys conducted with modern survey equipment are "extremely accurate," but testified that the United States Census Bureau should have the most updated county lines.

Each of the Outsiders testified at trial that, although they have a Hinesville⁶ address for mailing purposes, they believed their property to be located in Long County, they paid property taxes in Long County, they had held themselves out to be Long County residents for years preceding the election, and they were registered voters in Long County when they voted in the Election. Scott Wall, the mapping and GIS supervisor for the Long County Board of Assessors, testified that in 2011, the Southeast Georgia Surveying Company was commissioned to conduct a survey based on the legal description contained in the 1920 amendment to the Georgia Constitution that created the Long County boundaries. The resulting survey was accurate to within one foot. Through Wall, the Board introduced certified copies of the commissioned survey map and the Long County tax map, both of which showed that the Outsiders’ homes were located inside Long County. Wall explained that, although one property was located in both Long County and Liberty County, the county commissioners agreed that the property would be taxed in Long County because the driveway to the property was in Long County.

(c) Movers. The Board and Odum concede that one Mover was never a resident of Long County and should not have voted in the Election. The remaining Mover, Grant DeLoach, is Smith's first cousin. At trial, DeLoach claimed that he moved to Chatham County in 2017, that he had filed for a homestead exemption in Chatham County, and that his driver's license listed a Chatham County address.⁷ On cross-examination, however, DeLoach admitted that he was aware that someone had challenged his eligibility to vote in the Election, where both his mother and father were also on the ballot, and that he assumed that the Board determined that he was eligible to vote in Long County because he received the absentee ballot he had requested. He did not register to vote in Chatham County until several months...