2020 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 13 - Contested Elections and Primaries
§ 21-2-523. Jurisdiction and General Pretrial Proceedings; Notification of Proceedings; Selecting Administrative Judge; Compensation of Presiding Judge

1. A contest case governed by this article shall be tried and determined by the superior court of the county where the defendant resides, except that a municipal contest case shall be tried and determined by the superior court of the county where the city hall is located. A contest case challenging the eligibility of the two defendants declared as eligible to compete with each other in a run-off primary or election shall be tried and determined by the superior court of the county where the defendant who received the highest number of votes resides.
2. The superior court having jurisdiction of a contest case governed by this article shall be presided over by a superior court judge or senior judge. The superior court judge or senior judge who presides over the contest shall be selected as set out in subsection (c) of this Code section.
3. Upon the filing of a contest petition, the clerk of the superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which that county lies, or the district court administrator, who shall immediately notify the administrative judge, of the institution of proceedings under this article. If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge not a resident of the circuit in which the proceeding was instituted, to preside over the contest.
4. If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed.
5. After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his or her actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.

(Code 1933, § 34-1704, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 329, § 1; Ga. L. 1977, p. 175, § 1; Ga. L. 1991, p. 608, § 2; Ga. L. 1998, p. 295, § 1.)

- Legal mileage allowance, § 50-19-7.

- For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B. J. 29 (1987).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 34-2801, 34-2802, 34-2803, 34-3001 and Code Section 21-3-424 are included in the annotations for this Code section.

- Under O.C.G.A. § 21-2-523, a superior court judge or a senior superior court judge had to be selected to preside over the dismissal of the election contest action. Williams v. Heard, 302 Ga. 114, 805 S.E.2d 1 (2017).

- Although technically incorrect, a protest may be lodged prior to the governing authority's declaring the results of the election where such a handling affords the parties substantial justice. Garnto v. Wheeler, 235 Ga. 405, 219 S.E.2d 721 (1975).

- The requirement that a petition to contest shall be filed within five days after the results of the election are certified by the election official means in effect "not later than" that date. Whittington v. Mathis, 253 Ga. 653, 324 S.E.2d 727 (1985).

- Where the contestants failed to comply with the five-day limit, the trial court lacked jurisdiction to decide the merits of the contest. Mayor & Council v. Hall, 261 Ga. 681, 410 S.E.2d 105 (1991).

- The right to contest the results of an election through the expedited procedure of former subsection (c) of O.C.G.A. § 21-3-424 is not waived by the clerk of court's failure to follow the procedure outlined in former subsection (f). Stuckey v. Storms, 265 Ga. 491, 458 S.E.2d 344 (1995) (decided under former § 21-3-424).

Holding of election is generally a political matter not ordinarily cognizable in a court of equity. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534 (1971).

Jurisdiction of an ordinary (now superintendent) to determine contest arising out of election of constable is limited, and the ordinary has no power other than that expressly conferred by statute, and in such a proceeding the ordinary does not act in a judicial or quasi-judicial capacity; consequently the ordinary's sole authority and jurisdiction is to determine whether the person filing the contest or the one who was declared elected received the greater number of legal votes, and, in case the contestant received it, to declare the contestant duly elected. Thompson v. Stone, 205 Ga. 243, 53 S.E.2d 458 (1949) (decided under former Code 1933, §§ 34-2801, 34-2802, 34-2803, 34-3001).

Cited in Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968); Ollila v. Graham, 126 Ga. App. 288, 190 S.E.2d 542 (1972); Dolvin v. Town of Siloam, 246 Ga. 131, 269 S.E.2d 23 (1980); Littlejohn v. Cleland, 251 Ga. 597, 308 S.E.2d 186 (1983); Streeter v. Paschal, 267 Ga. 207, 476 S.E.2d 759 (1996); Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Jurisdiction over challenge of one holding office of sheriff.

- Jurisdiction to hear a case seeking to challenge the qualifications of a person to hold the office of sheriff rests with the superior courts. 1980 Op. Att'y Gen. No. U80-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 396 et seq.

- 29 C.J.S., Elections, § 444 et seq.