2020 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 2 - Supervisory Boards and Officers
Part 1 - State Election Board, County Board of Elections, and County Board of Elections and Registration
§ 21-2-32. Institution of and Intervention in Court Actions; Procedure; Compensation of Presiding Judge; Granting of Relief; Notice; Appellate Review

1. The State Election Board shall have the right to institute or to intervene as a party in any action in any court of this state or of the United States, seeking mandamus, injunction, or other relief, to compel compliance with any election or primary law of the state or with any valid rule or regulation of the board, or to restrain or otherwise prevent or prohibit any fraudulent or other illegal conduct in connection therewith, including the right to seek such relief for any anticipatory breach.
2. Any petition seeking any of the relief authorized in subsection (a) of this Code section shall be filed in the superior court of the county of residence of the superintendent charged with the conduct of the election or primary in which it is alleged that there was or will be fraud or other illegal conduct or, in the case of municipal primaries and elections, in the county in which the city hall is located.
3. Upon the filing of such petition, the clerk of superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which the 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 who is not a resident of the circuit in which the proceeding was instituted, to preside over the proceeding.
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. In the event any temporary order is sought, the petition may be presented to the administrative judge prior to its filing for consideration of the application for such order. If the petition upon which temporary relief is sought prior to the filing will be filed in any county of the circuit of the administrative judge, then the petition may be presented to the administrative judge of an adjoining district prior to its filing for consideration of the application for such order.
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.
6. If, in the opinion of the judge presiding over such cause, adequate relief cannot otherwise be granted to assure compliance with said laws, rules, and regulations, the judge may enter such order concerning the conduct of such election or primary which he or she shall deem necessary to assure compliance, including the right to require such election or primary to be held under the supervision of the State Election Board.
7. Upon any action being filed in any court of this state seeking relief affecting the calling, holding, conduct, determination, result, tabulation, or certification of any election or primary, except those instituted by the State Election Board, a copy of the proceeding shall be served upon such board by mailing a copy of same to the chairperson by certified or registered mail or statutory overnight delivery; and a certificate that such service has been made shall be filed by the plaintiff or the plaintiff's attorney.
8. Any verdict, judgment, decree, order, ruling, or other judicial action in such cases shall be subject to review by the appellate court having jurisdiction thereof. It shall be the duty of the proper appellate court to consider application for stays or supersedeas in such cases without regard to whether any appeal has been filed or the record docketed in such cases.

(Code 1933, § 34-203, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1991, p. 608, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2000, p. 1589, § 4.)

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, made this Act applicable with respect to notices delivered on or after July 1, 2000.

Purpose for which notice is given to the State Election Board is to give the board an opportunity to intervene in an action brought under this section. Hill v. Bargeron, 240 Ga. 490, 241 S.E.2d 251 (1978).

The decision whether to intervene in municipal election contests requires that the State Election Board be aware of the nature of the proceedings, and for problems encountered in elections and election contests, in order that it may properly perform its duties under this section. Copies of the proceedings are also necessary to assist the board in promulgating rules and regulations, in publishing and distributing explanatory pamphlets interpreting the election laws, in conducting investigations where necessary, and in making recommendations to the General Assembly. Lyde v. City of Brunswick, 241 Ga. 554, 246 S.E.2d 673 (1978).

- To accomplish the intended purposes of O.C.G.A. § 21-2-32, the words "seeking relief affecting the calling, holding, conduct," are not to be given a strict interpretation. Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981).

- An action seeking to enjoin the placing of a candidate's name upon the ballot is an action seeking relief affecting the conduct, determination, result, etc., of a primary or election. O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976).

A petition seeking mandamus requiring city officials to administer the oath of office to persons who claim to have been elected as write-in candidates in a municipal election is such a proceeding that requires notice to the State Election Board. Lucken v. Falligant, 243 Ga. 816, 256 S.E.2d 788 (1979).

- The Georgia Secretary of State had standing to object to a request under the Open Records Act for election records held by a county. Under O.C.G.A. §§ 21-2-30,21-2-31,21-2-32,21-2-50 et seq., and45-13-20 et seq., the Secretary was charged with the supervision of all elections in Georgia and thus had the right to seek judicial intervention. Smith v. DeKalb County, 288 Ga. App. 574, 654 S.E.2d 469 (2007), cert. denied, No. S08C0596, 2008 Ga. LEXIS 291 (Ga. 2008).

Omission of required notice under subsection (d) (now subsection (g)) of this section constitutes a fatal defect. O'Keefe v. Braddock, 237 Ga. 838, 229 S.E.2d 758 (1976); Lucken v. Falligant, 243 Ga. 816, 256 S.E.2d 788 (1979).

- If no certificate that service had been perfected upon the State Election Board was filed as required by subsection (d) (now subsection (g)) of this section, it is not error for the court to dismiss a petition in an election contest. Moody v. Carter, 128 Ga. App. 27, 195 S.E.2d 204 (1973).

- The word "upon" in subsection (d) (now subsection (g)) of this section means "immediately following on" or "very soon after." Late or eleventh-hours service is not in conformity with the express statutory language. Hill v. Bargeron, 240 Ga. 490, 241 S.E.2d 251 (1978).

- Where the record reflected service on the Secretary of State by the sheriff, the absence of the formalities required under O.C.G.A. § 21-2-32(d) (now subsection (g)) was not fatal. Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987).

- Subsection (d) (now subsection (g)) of this section will not be expanded so as to include a city council within the definition of "court". Collins v. Williams, 237 Ga. 576, 229 S.E.2d 388 (1976).

Cited in Smith v. Nathan, 127 Ga. App. 610, 194 S.E.2d 490 (1972); Robinson v. Bassett, 128 Ga. App. 711, 197 S.E.2d 799 (1973); Price v. Cheek, 130 Ga. App. 506, 203 S.E.2d 751 (1973); Schloth v. Smith, 134 Ga. App. 529, 215 S.E.2d 292 (1975); Bargeron v. Hill, 143 Ga. App. 87, 237 S.E.2d 518 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Board may receive criminal record information.

- Since the State Election Board is empowered to investigate and enforce by civil actions, it would be entitled to receive criminal history record information in connection with any such investigation or litigation. 1975 Op. Att'y Gen. No. 75-144.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Elections, §§ 8, 37, 90 et seq.

- 29 C.J.S., Elections, § 113 et seq.

- Power to enjoin holding of an election, 33 A.L.R. 1376, 70 A.L.R. 733.