2020 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 1 - General Provisions
§ 21-2-2. (See Editor's notes.) Definitions

As used in this chapter, the term:

(.1) "Activities of daily living" includes eating, toileting, grooming, dressing, shaving, transferring, and other personal care services.

(.2) "Attendant care services" means services and supports furnished to an individual with a physical disability, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily living, and health related functions through hands-on assistance, supervision, or cuing.

1. "Ballot" means "official ballot" or "paper ballot" and shall include the instrument, whether paper, mechanical, or electronic, by which an elector casts his or her vote.
2. "Ballot marking device" means a pen, pencil, or similar writing tool, or an electronic device designed for use in marking paper ballots in a manner that is detected as a vote so cast and then counted by ballot scanners.

   (2.1) "Ballot scanner" means an electronic recording device which receives an elector's ballot and tabulates the votes on the ballot by its own devices; also known as a "tabulating machine."

3. "Call" or "the call," as used in relation to special elections or special primaries, means the affirmative action taken by the responsible public officer to cause a special election or special primary to be held. The date of the call shall be the date of the first publication in a newspaper of appropriate circulation of such affirmative action.

   (3.1) "Campaign material" means any newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter referring to:

   1. A candidate whose name appears on the ballot in a primary or election;
   2. A referendum which appears on the ballot in a primary or election; or
   3. A political party or body which has a nominee or nominees on the ballot in a primary or election.

      Campaign material shall not include any written or printed matter that is used exclusively for the personal and private reference of an individual elector during the course of voting.

4. "Custodian" means the person charged with the duty of testing and preparing voting equipment for the primary or election and with instructing the poll officers in the use of same.

   (4.1) "Direct recording electronic" or "DRE" voting equipment means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote. Such term shall not encompass ballot marking devices or electronic ballot markers.

5. "Election" ordinarily means any general or special election and shall not include a primary or special primary unless the context in which the term is used clearly requires that a primary or special primary is included.
6. "Election district" is synonymous with the terms "precinct" and "voting precinct."
7. "Elector" means any person who shall possess all of the qualifications for voting now or hereafter prescribed by the laws of this state, including applicable charter provisions, and shall have registered in accordance with this chapter.

   (7.1) "Electronic ballot marker" means an electronic device that does not compute or retain votes; may integrate components such as a ballot scanner, printer, touch screen monitor, audio output, and a navigational keypad; and uses electronic technology to independently and privately mark a paper ballot at the direction of an elector, interpret ballot selections, communicate such interpretation for elector verification, and print an elector verifiable paper ballot.

8. "General election" means an election recurring at stated intervals fixed by law or by the respective municipal charters; and the words "general primary" mean a primary recurring at stated intervals fixed by law or by the respective municipal charters.
9. "Health related functions" means functions that can be delegated or assigned by licensed health care professionals under state law to be performed by an attendant.
10. "Independent" means a person unaffiliated with any political party or body and includes candidates in a special election for a partisan office for which there has not been a prior special primary.
11. "Managers" means the chief manager and the assistant managers required to conduct primaries and elections in any precinct in accordance with this chapter.
12. "Municipal office" means every municipal office to which persons can be elected by a vote of the electors under the laws of this state and the respective municipal charters.
13. "Municipality" means an incorporated municipality.
14. "Nomination" means the selection, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election.
15. "November election" means the general election held on the Tuesday next following the first Monday in November in each even-numbered year.
16. "Numbered list of voters" means one or more sheets of uniform size containing consecutively numbered blank spaces for the insertion of voters' names at the time of and in the order of receiving their ballots or number slips governing admissions to the voting machines.
17. "Oath" shall include affirmation.
18. "Official ballot" means a ballot, whether paper, mechanical, or electronic, which is furnished by the superintendent or governing authority in accordance with Code Section 21-2-280, including paper ballots that are read by ballot scanners.
19. "Official ballot label" means a ballot label prepared in accordance with Article 9 of this chapter and delivered by the superintendent to the poll officers in accordance with Code Section 21-2-328.

    (19.1) "Optical scanning voting system" means a system employing paper ballots on which electors cast votes with a ballot marking device or electronic ballot marker after which votes are counted by ballot scanners.

20. "Paper ballot" or "ballot" means the forms described in Article 8 of this chapter.
21. "Party nomination" means the selection by a political party, in accordance with this chapter, of a candidate for a public office authorized to be voted for at an election.
22. Reserved.
23. "Political body" or "body" means any political organization other than a political party.
24. "Political organization" means an affiliation of electors organized for the purpose of influencing or controlling the policies and conduct of government through the nomination of candidates for public office and, if possible, the election of its candidates to public office, except that the term "political organization" shall not include a "subversive organization" as defined in Part 2 of Article 1 of Chapter 11 of Title 16, the "Sedition and Subversive Activities Act of 1953."
25. "Political party" or "party" means any political organization which at the preceding:
    1. Gubernatorial election nominated a candidate for Governor and whose candidate for Governor at such election polled at least 20 percent of the total vote cast in the state for Governor; or
    2. Presidential election nominated a candidate for President of the United States and whose candidates for presidential electors at such election polled at least 20 percent of the total vote cast in the nation for that office.
26. "Poll officers" means the chief manager, assistant managers, and clerks required to conduct primaries and elections in any precinct in accordance with this chapter.
27. "Polling place" means the room provided in each precinct for voting at a primary or election.
28. "Precinct" is synonymous with the term "voting precinct" and means a geographical area, established in accordance with this chapter, from which all electors vote at one polling place.
29. "Primary" means any election held for the purpose of electing party officers or nominating candidates for public offices to be voted for at an election.
30. "Public office" means every federal, state, county, and municipal office to which persons can be elected by a vote of the electors under the laws of this state or the respective municipal charters, except that the term shall not include the office of soil and water conservation district supervisor.
31. "Question" means a brief statement of such constitutional amendment, charter amendment, or other proposition as shall be submitted to a popular vote at any election.
32. "Residence" means domicile.

    (32.1) "Scanning ballot" means a printed paper ballot designed to be marked by an elector with a ballot marking device or electronic ballot marker or a blank sheet of paper designed to be used in a ballot marking device or electronic ballot marker, which is then inserted for casting into a ballot scanner.

33. "Special election" means an election that arises from some exigency or special need outside the usual routine.
34. "Special primary" means a primary that arises from some exigency or special need outside the usual routine.
35. "Superintendent" means:
    1. Either the judge of the probate court of a county or the county board of elections, the county board of elections and registration, the joint city-county board of elections, or the joint city-county board of elections and registration, if a county has such;
    2. In the case of a municipal primary, the municipal executive committee of the political party holding the primary within a municipality or its agent or, if none, the county executive committee of the political party or its agent;
    3. In the case of a nonpartisan municipal primary, the person appointed by the proper municipal executive committee; and
    4. In the case of a municipal election, the person appointed by the governing authority pursuant to the authority granted in Code Section 21-2-70.
36. "Swear" shall include affirm.
37. "Violator" means any individual, partnership, committee, association, corporation, limited liability company, limited liability partnership, professional corporation, trust, enterprise, franchise, joint venture, political party, political body, candidate, campaign committee, political action committee or any other political committee or business entity, or any governing authority that violates any provision of this chapter.
38. Reserved.
39. "Voter" is synonymous with the term "elector."
40. "Voting machine" is a mechanical device on which an elector may cast a vote and which tabulates those votes by its own devices and is also known as a "lever machine."
41. "Write-in ballot" means the paper or other material on which a vote is cast for persons whose names do not appear on the official ballot or ballot labels.

(Code 1933, § 34-103, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 1; Ga. L. 1978, p. 1004, §§ 1, 2; Ga. L. 1979, p. 964, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1984, p. 696, § 1; Ga. L. 1988, p. 964, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1994, p. 279, § 1; Ga. L. 1997, p. 590, § 1; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 1, 2, 25, 26; Ga. L. 2001, Ex. Sess., p. 325, § 1; Ga. L. 2002, p. 598, §§ 1-1, 2-1; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p. 517, § 1; Ga. L. 2005, p. 253, § 1/HB 244; Ga. L. 2006, p. 888, § 1/HB 1435; Ga. L. 2010, p. 914, § 1/HB 540; Ga. L. 2016, p. 173, § 1/SB 199; Ga. L. 2019, p. 7, § 1/HB 316.)

The 2019 amendment, effective April 2, 2019, substituted the present provisions of paragraph (2) for the former provisions, which read: " 'Ballot labels' means the cards, paper, or other material placed on the front of a voting machine containing the names of offices and candidates and statements of questions to be voted on."; added paragraph (2.1); added the second sentence in paragraph (4.1); added paragraph (7.1); substituted "paper ballots that are read by ballot scanners" for "ballots read by optical scanning tabulators" near the end of paragraph (18); and added paragraphs (19.1) and (32.1).

- District supervisors; election procedure for elected supervisors, § 2-6-30.

Probate court's authority to perform duties relating to elections, § 15-9-30.

For application of this statute in 2020, see Executive Orders 08.15.20.01 and 08.31.20.02.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

- 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.

Definition of vote, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Returns of Primaries and Elections, § 183-1-15-.02.

- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).

ANALYSIS

• General Consideration
• County Registrar
• Elector
• Political Body
• Residence
• Special Election

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 36, former Code 1933, §§ 34-101 et seq., and 34A-101, and former Code Section 21-3-2 are included in the annotations for this Code section.

Cited in Stinson v. Manning, 221 Ga. 487, 145 S.E.2d 541 (1965); Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189 (1969); Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Ollila v. Graham, 126 Ga. App. 288, 190 S.E.2d 542 (1972); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); Smiley v. Davenport, 139 Ga. App. 753, 229 S.E.2d 489 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Grogan v. Paulding County Democratic Executive Comm., 246 Ga. 206, 269 S.E.2d 467 (1980); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985); Favorito v. Handel, 285 Ga. 795, 684 S.E.2d 257 (2009); Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010); City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 765 S.E.2d 33 (2014).

County registrar is not prohibited from entering a municipal election because the restriction on municipal registrars under former Code 1933, § 34A-103 does not govern county registrars. Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108 (1976) (decided under former Code 1933, § 34-101 et seq.)

An elector must be a living person. Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968).

Citizens Party is a "political body" under O.C.G.A. § 21-2-2(19) (see now O.C.G.A. § 21-2-2(23)). Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).

Residence

Question of domicile is for jury.

- The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined by the court except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

- There must be either the tacit or the explicit intention to change one's domicile before there is a change of legal residence. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, the person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

- One may, for purposes of convenience, maintain a residence at a place not intended as a permanent abode without affecting any change in legal domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).

- See Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930) (decided under former Code 1910, § 36).

- In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

Special Election

County school board referendum.

- "Special election" encompasses a county school board referendum. Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984).

ANALYSIS

• General Considerations
• Election District
• General Election
• Numbered List of Voters
• Polling Place
• Poll Officers
• Residence
• Separate Precincts
• Special Election

General Considerations

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-101 et seq., and former Code Section 21-3-2 are included in the annotations for this Code section.

Having two or more polling places within one election district (now precinct) is not authorized by the Georgia Election Code. 1968 Op. Att'y Gen. No. 68-63 (decided under former Code 1933, § 34-101 et seq.).

General Election

Office created too late for general election.

- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.

Persons who vote by absentee ballot must be included on a "numbered list of voters". 1971 Op. Att'y Gen. No. U71-127.

Polling Place

Voting from automobile not permitted.

- The Election Code does not contemplate voting from automobiles. An elector who is unable to go to the polls should vote by absentee ballot. 1965-66 Op. Att'y Gen. 66-182.

- The governing authority of a municipality is not required to establish a polling place in each district from which a candidate is elected to office, but must establish a polling place in each precinct in the municipality. 1985 Op. Att'y Gen. No. U85-14.

Poll Officers

Municipal official may be poll officer.

- No provision of the Georgia Election Code prohibits an elected official of a municipality from serving as a poll officer in a state or national election. 1976 Op. Att'y Gen. No. U76-13.

Residence

Business address does not fulfill residency requirement.

- A business address, in and of itself, does not fulfill residency requirements, and an otherwise qualified elector may vote in the election district containing the business address only when such district also contains the residence as defined by the Election Code. 1968 Op. Att'y Gen. No. 68-293.

Where a person running for office is required to be a resident of the district from which that person is running, the person's business address, in and of itself, would not be sufficient to fulfill the residency requirement. 1968 Op. Att'y Gen. No. 68-293.

Person who moves away from a county and makes that person's home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56.

- A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. 1975 Op. Att'y Gen. No. 75-77.

Separate Precincts

Each ward should be separate election precinct where councilmen elected by ward.

- If a municipality requires that each of its councilmen be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district (now precinct). 1969 Op. Att'y Gen. No. 69-399.

An election to fill the unexpired term of an office appears to be a "special election" under O.C.G.A. § 21-2-2(28) (see paragraph (33)) in that it arises outside the usual routine. 1986 Op. Att'y Gen. No. 86-26.

- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.

Special election occurs when a superior court judge has died, and a successor is to be selected. 1970 Op. Att'y Gen. No. U70-144.

Date of the call of a special election is the date of its first publication in a newspaper of appropriate circulation. 1980 Op. Att'y Gen. No. 80-27.

County school board is empowered to authorize calling of a school bond referendum which the county election superintendent shall then call by publishing the appropriate notice. 1985 Op. Att'y Gen. No. 85-18.

- The Election Code does not provide for special registration, but rather for general registration from which a list is compiled to vote in special elections. Therefore, any person who has registered to vote by the close of the fifth day (excluding Sundays or holidays) after the call of a bond election is entitled to vote in that election. 1965-66 Op. Att'y Gen. No. 66-73.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 1, 8, 22, 25, 27, 97, 98, 191 et seq. 26 Am. Jur. 2d, Elections, §§ 218 et seq., 270, 283 et seq., 305, 329, 330, 331. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 1, 128.

9 Am. Jur. Pleading and Practice Forms, Elections, § 1.

- 29 C.J.S., Elections, §§ 36, 38, 39, 136 et seq., 144, 149 et seq., 177, 193, 258, 260, 305 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq., 269, 403 et seq.

- Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.

Validity of write-in vote where candidate's surname only is written in on ballot, 86 A.L.R.2d 1025.

Residence or domicil of student or teacher for purpose of voting, 98 A.L.R.2d 488; 44 A.L.R.3d 797.