2021 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 14 - Special Elections and Primaries Generally; Municipal Terms of Office
§ 21-2-540. Conduct of Special Primaries and Special Elections Generally

1. 1. Every special primary and special election shall be held and conducted in all respects in accordance with the provisions of this chapter relating to general primaries and general elections; and the provisions of this chapter relating to general primaries and general elections shall apply thereto insofar as practicable and as not inconsistent with any other provisions of this chapter. All special primaries and special elections held at the time of a general primary, as provided by Code Section 21-2-541, shall be conducted by the poll officers by the use of the same equipment and facilities, insofar as practicable, as are used for such general primary. All special primaries and special elections held at the time of a general election, as provided by Code Section 21-2-541, shall be conducted by the poll officers by the use of the same equipment and facilities, insofar as practicable, as are used for such general election.
   2. If a vacancy occurs in a partisan office to which the Governor is authorized to appoint an individual to serve until the next general election, a special primary shall precede the special election.
2. At least 29 days shall intervene between the call of a special primary and the holding of same, and at least 29 days shall intervene between the call of a special election and the holding of same. The period during which candidates may qualify to run in a special primary or a special election shall remain open for a minimum of two and one-half days. Special primaries and special elections which are to be held in conjunction with the presidential preference primary, a state-wide general primary, or state-wide general election shall be called at least 90 days prior to the date of such presidential preference primary, state-wide general primary, or state-wide general election; provided, however, that this requirement shall not apply to special primaries and special elections held on the same date as such presidential preference primary, state-wide general primary, or state-wide general election but conducted completely separate and apart from such state-wide general primary or state-wide general election using different ballots or voting equipment, facilities, poll workers, and paperwork.
3. 1. Notwithstanding any other provision of law to the contrary, a special primary or special election to fill a vacancy in a county or municipal office shall be held only on one of the following dates which is at least 29 days after the date of the call for the special election:
      1. In odd-numbered years, any such special primary or special election shall only be held on:
         1. The third Tuesday in March;
         2. The third Tuesday in June;
         3. The third Tuesday in September; or
         4. The Tuesday after the first Monday in November; and
      2. In even-numbered years, any such special primary or special election shall only be held on:
         1. The third Tuesday in March; provided, however, that in the event that a special primary or special election is to be held under this provision in a year in which a presidential preference primary is to be held, then any such special primary or special election shall be held on the date of and in conjunction with the presidential preference primary;
         2. The date of the general primary; or
         3. The Tuesday after the first Monday in November;

         provided, however, that, in the event that a special primary or special election to fill a federal or state office on a date other than the dates provided in this paragraph has been scheduled and it is possible to hold a special primary or special election to fill a vacancy in a county, municipal, or school board office in conjunction with such special primary or special election to fill a federal or state office, the special primary or special election to fill such county, municipal, or school board office may be held on the date of and in conjunction with such special primary or special election to fill such federal or state office, provided all other provisions of law regarding such primaries and elections are met.

   2. Notwithstanding any other provision of law to the contrary, a special election to present a question to the voters shall be held only on one of the following dates which is at least 29 days after the date of the call for the special election:
      1. In odd-numbered years, any such special election shall only be held on the third Tuesday in March or on the Tuesday after the first Monday in November; and
      2. In even-numbered years, any such special election shall only be held on:
         1. The date of and in conjunction with the presidential preference primary if one is held that year;
         2. The date of the general primary; or
         3. The Tuesday after the first Monday in November.
   3. The provisions of this subsection shall not apply to:
      1. Special elections held pursuant to Chapter 4 of this title, the "Recall Act of 1989," to recall a public officer or to fill a vacancy in a public office caused by a recall election; and
      2. Special primaries or special elections to fill vacancies in federal or state public offices.
4. Except as otherwise provided by this chapter, the superintendent of each county or municipality shall publish the call of the special primary or special election.
5. 1. Candidates in special elections for partisan offices that are not preceded by special primaries shall be listed alphabetically on the ballot and may choose to designate on the ballot their party affiliation. The party affiliation selected by a candidate shall not be changed following the close of qualifying.
   2. Candidates in special primaries shall be listed alphabetically on the ballot.

(Code 1933, §§ 34-806, 34-1314, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 308, § 35; Ga. L. 1969, p. 329, § 8A; Ga. L. 1984, p. 1, § 14; Ga. L. 1984, p. 638, § 3; Ga. L. 1986, p. 382, § 6; Ga. L. 1986, p. 1538, § 3; Ga. L. 1991, p. 316, § 1; Ga. L. 1994, p. 1406, § 27; Ga. L. 1996, p. 145, § 21; Ga. L. 1997, p. 590, § 42; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 240, §§ 43, 44; Ga. L. 2005, p. 253, § 64/HB 244; Ga. L. 2008, p. 131, § 1/HB 296; Ga. L. 2010, p. 914, § 25/HB 540; Ga. L. 2012, p. 995, §§ 41, 42/SB 92; Ga. L. 2014, p. 1, § 8/HB 310; Ga. L. 2017, p. 2, § 3/HB 42; Ga. L. 2021, p. 14, § 43/SB 202.)

The 2017 amendment, effective February 23, 2017, added the proviso at the end of paragraph (c)(1).

The 2021 amendment, effective March 25, 2021, rewrote subsection (a), which read: "Every special election shall be held and conducted in all respects in accordance with the provisions of this chapter relating to general elections; and the provisions of this chapter relating to general elections shall apply thereto insofar as practicable and as not inconsistent with any other provisions of this chapter. All special elections held at the time of a general election, as provided by Code Section 21-2-541, shall be conducted by the poll officers by the use of the same equipment and facilities, so far as practicable, as are used for such general election."; in subsection (b), inserted "primaries and special" at the beginning and "special primaries and" near the middle of the third sentence, and deleted the former last sentence, which read: "Notwithstanding any provision of this subsection to the contrary, special elections which are to be held in conjunction with the state-wide general primary or state-wide general election in 2014 shall be called at least 60 days prior to the date of such state-wide general primary or state-wide general election."; inserted "primary or special" in subparagraph (c)(1)(A); inserted "special primary or" in subparagraph (c)(1)(B), in two places in division (c)(1)(B)(i) and in five places in the undesignated language following division (c)(1)(B)(iii), inserted a comma following "state office" and "primaries and" near the end of the undesignated language following division (c)(1)(B)(iii); inserted "special primary or" near the end of subsection (d); and, in subsection (e), designated the existing provisions as paragraph (e)(1); inserted "that are not preceded by special primaries" in the first sentence in paragraph (e)(1); and added paragraph (e)(2).

- Special elections in counties and municipalities pertaining to authorization of sale of distilled spirits by the drink, § 3-4-90 et seq.

Authorization of sale of distilled spirits by private clubs, § 3-7-40.

- Ga. L. 2021, p. 14, § 1/SB 202, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Election Integrity Act of 2021."'

Ga. L. 2021, p. 14, § 2/SB 202, not codified by the General Assembly, provides: "The General Assembly finds and declares that:

"(1) Following the 2018 and 2020 elections, there was a significant lack of confidence in Georgia election systems, with many electors concerned about allegations of rampant voter suppression and many electors concerned about allegations of rampant voter fraud;

"(2) Many Georgia election processes were challenged in court, including the subjective signature-matching requirements, by Georgians on all sides of the political spectrum before and after the 2020 general election;

"(3) The stress of the 2020 elections, with a dramatic increase in absentee-by-mail ballots and pandemic restrictions, demonstrated where there were opportunities to update existing processes to reduce the burden on election officials and boost voter confidence;

"(4) The changes made in this legislation in 2021 are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in Georgia by promoting uniformity in voting. Several examples will help explain how these goals are achieved;

"(5) The broad discretion allowed to local officials for advance voting dates and hours led to significant variations across the state in total number of hours of advance voting, depending on the county. More than 100 counties have never offered voting on Sunday and many counties offered only a single day of weekend voting. Requiring two Saturday voting days and two optional Sunday voting days will dramatically increase the total voting hours for voters across the State of Georgia, and all electors in Georgia will have access to multiple opportunities to vote in person on the weekend for the first time;

"(6) Some counties in 2020 received significant infusions of grant funding for election operations, while other counties received no such funds. Promoting uniformity in the distribution of funds to election operations will boost voter confidence and ensure that there is no political advantage conferred by preferring certain counties over others in the distribution of funds;

"(7) Elections in Georgia are administered by counties, but that can lead to problems for voters in counties with dysfunctional election systems. Counties with long-term problems of lines, problems with processing of absentee ballots, and other challenges in administration need accountability, but state officials are limited in what they are able to do to address those problems. Ensuring there is a mechanism to address local election problems will promote voter confidence and meet the goal of uniformity;

"(8) Elections are a public process and public participation is encouraged by all involved, but the enthusiasm of some outside groups in sending multiple absentee ballot applications in 2020, often with incorrectly filled-in voter information, led to significant confusion by electors. Clarifying the rules regarding absentee ballot applications will build elector confidence while not sacrificing the opportunities for electors to participate in the process;

"(9) The lengthy absentee ballot process also led to elector confusion, including electors who were told they had already voted when they arrived to vote in person. Creating a definite period of absentee voting will assist electors in understanding the election process while also ensuring that opportunities to vote are not diminished, especially when many absentee ballots issued in the last few days before the election were not successfully voted or were returned late;

"(10) Opportunities for delivering absentee ballots to a drop box were first created by the State Election Board as a pandemic response. The drop boxes created by rule no longer existed in Georgia law when the emergency rules that created them expired. The General Assembly considered a variety of options and constructed a system that allows the use of drop boxes, while also ensuring the security of the system and providing options in emergency situations;

"(11) The lengthy nine-week runoffs in 2020 were exhausting for candidates, donors, and electors. By adding ranked choice voting for military and overseas voters, the run-off period can be shortened to a more manageable period for all involved, easing the burden on election officials and on electors;

"(12) Counting absentee ballots in 2020 took an incredibly long time in some counties. Creating processes for early processing and scanning of absentee ballots will promote elector confidence by ensuring that results are reported quickly;

"(13) The sanctity of the precinct was also brought into sharp focus in 2020, with many groups approaching electors while they waited in line. Protecting electors from improper interference, political pressure, or intimidation while waiting in line to vote is of paramount importance to protecting the election system and ensuring elector confidence;

"(14) Ballot duplication for provisional ballots and other purposes places a heavy burden on election officials. The number of duplicated ballots has continued to rise dramatically from 2016 through 2020. Reducing the number of duplicated ballots will significantly reduce the burden on election officials and creating bipartisan panels to conduct duplication will promote elector confidence;

"(15) Electors voting out of precinct add to the burden on election officials and lines for other electors because of the length of time it takes to process a provisional ballot in a precinct. Electors should be directed to the correct precinct on election day to ensure that they are able to vote in all elections for which they are eligible;

"(16) In considering the changes in 2021, the General Assembly heard hours of testimony from electors, election officials, and attorneys involved in voting. The General Assembly made significant modifications through the legislative process as it weighed the various interests involved, including adding further weekend voting, changing parameters for out-of-precinct voting, and adding transparency for ballot images; and

"(17) While each of the changes in this legislation in 2021 stands alone and is severable under Code Section 1-1-3, the changes in total reflect the General Assembly's considered judgment on the changes required to Georgia's election system to make it 'easy to vote and hard to cheat,' applying the lessons learned from conducting an election in the 2020 pandemic."

- Calls for primaries and elections, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Dates of Primaries and Elections, § 183-1-8-.01.

- For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 93 (2014).

Cited in City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 765 S.E.2d 33 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 34-1904 are included in the annotations for this Code section.

- The provisions of O.C.G.A. § 21-2-540, concerning special elections, do not apply to the rerun of an election ordered by a superior court judge based upon the sustaining of an election contest. 1984 Op. Att'y Gen. No. U84-49.

- O.C.G.A. § 21-2-540 establishes by general legislation the only appropriate dates upon which referendum elections may be held, and any contradictory local legislation passed during the same session of the General Assembly would not be operative as to the setting of such an election date. 1991 Op. Att'y Gen. U91-23.

- A provision of a local Act requiring that a special election be held before the expiration of 29 days between the call of the election and election itself is invalid. 1980 Op. Att'y Gen. No. 80-27.

Special election to fill a vacancy must be held within a reasonable time, in the absence of a specific time limit. 1969 Op. Att'y Gen. No. 69-514.

- A vacancy in the office of justice of the peace (now magistrate), notwithstanding the fact that it has existed for some six years, can lawfully be filled by the call of a special election. 1967 Op. Att'y Gen. No. 67-435.

- While the Georgia Election Code does not specify the exact method of calling a special primary, the judge of the probate court is the officer generally having jurisdiction of primaries and the judge is the proper person to call a special primary. 1970 Op. Att'y Gen. No. U70-128.

It is possible to hold a special primary at the same time as the general primary. 1970 Op. Att'y Gen. No. U70-120.

School bond election called by county education board may be held concurrently with general election. 1965-66 Op. Att'y Gen. No. 65-9.

- In the event of a conflict between former Code 1933, §§ 58-1003, and 34-806 (see now O.C.G.A. § 21-2-540), concerning the date for holding a liquor referendum, former Code 1933, § 58-1003 controlled. 1979 Op. Att'y Gen. No. 79-23.

- Thirty-days (now 29-days) provision of this section should be followed notwithstanding the shorter time periods prescribed by pre-1964 laws as to certain offices. 1968 Op. Att'y Gen. No. 68-426.

- A candidate in an election may not list a party affiliation on the ballot unless the candidate has been nominated in a primary or unless the candidate falls within certain statutory exceptions to this rule. 1970 Op. Att'y Gen. No. U70-120.

- Since the Commissioner of Labor is routinely elected at the same time as the Governor and holds his or her office for the same term, an election which must be held to fill the balance of the unexpired term after the Commissioner withdraws is one "that arises from some exigency or special need outside the usual routine," which would be categorized as a "special election" under Georgia law. The Georgia Election Code certainly authorizes, but does not require, a special primary in this situation. 1992 Op. Att'y Gen. No. 92-11.

- Where the local law creating the board of commissioners for Houston County, as amended, provides that, with regard to vacancies occurring more than one year prior to the expiration of the term of office, the vacancy "shall be filled by a special election called by the election superintendent of Houston County in the same manner as in the case to fill vacancies in other county offices . . .," the general law relating to the filling of a vacancy on the county commission is not applicable, and the special election to fill the vacancy in the office of county commissioner should be conducted pursuant to the general special election provisions of the Georgia Election Code, O.C.G.A. §§ 21-2-540 and21-2-541, as is the case with vacancies in other county offices where there is no specific provision which applies. 1990 Op. Att'y Gen. No. U90-9.

- Vacancies in the offices of mayor and council members for the City of Willacoochee should be filled by special election held on a statutorily authorized date and not by appointment of the remaining members of the city council. 2008 Op. Att'y Gen. No. U2008-3.

Prospective resignation of member of Congress does not become effective until the date named therein and no writ of election to fill the vacancy may issue until that date. 1945-47 Op. Att'y Gen. p. 241 (decided under former Code 1933, § 34-1904).

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, § 4; 26 Am. Jur. 2d, Elections, § 270 et seq.

- 29 C.J.S., Elections, §§ 144 et seq., 212.

- Validity of special election as affected by publication or dissemination of matter or information, extrinsic to the question as submitted, regarding nature or effect of the proposal, 122 A.L.R. 1142.