2020 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 4 - Selection and Qualification of Candidates and Presidential Electors
Part 1 - General Provisions
§ 21-2-139. Nonpartisan Elections Authorized; Conduct

1. Notwithstanding any other provisions of this chapter to the contrary, the General Assembly may provide by local Act for the election in nonpartisan elections of candidates to fill county judicial offices, offices of local boards of education, and offices of consolidated governments which are filled by the vote of the electors of said county or political subdivision. Except as otherwise provided in this Code section, the procedures to be employed in such nonpartisan elections shall conform as nearly as practicable to the procedures governing nonpartisan elections as provided in this chapter. Except as otherwise provided in this Code section, the election procedures established by any existing local law which provides for the nonpartisan election of candidates to fill county offices shall conform to the general procedures governing nonpartisan elections as provided in this chapter, and such nonpartisan elections shall be conducted in accordance with the applicable provisions of this chapter, notwithstanding the provisions of any existing local law. For those offices for which the General Assembly, pursuant to this Code section, provided by local Act for election in nonpartisan primaries and elections, such offices shall no longer require nonpartisan primaries. Such officers shall be elected in nonpartisan elections held and conducted in conjunction with the general primary in even-numbered years in accordance with this chapter without a prior nonpartisan primary. This Code section shall apply to all nonpartisan elections for members of consolidated governments. All nonpartisan elections for members of consolidated governments shall be governed by the provisions of this Code section and shall be considered county elections and not municipal elections for the purposes of this Code section. Nonpartisan elections for municipal offices shall be conducted on the dates provided in the municipal charter.
2. Either a political party, as defined in this chapter, or a nonpartisan municipal executive committee duly registered with the city clerk may conduct a municipal primary for the purpose of electing its own officials or nominating candidates for municipal elections. Every primary held for such purpose shall be presided over and conducted in the manner prescribed by the rules and regulations of such party or nonpartisan municipal executive committee, not inconsistent with the law and the rules and regulations of the State Election Board; provided, however, that all such primaries must be conducted in such manner as to guarantee the secrecy of the ballot.
3. Municipalities may provide by their charter or by ordinance that no political party shall conduct primaries for the purpose of nominating candidates for municipal elections; provided, however, that the existing provisions of any charter or ordinance prohibiting primaries by political parties shall not be repealed by this subsection.

(Code 1981, §21-2-139, enacted by Ga. L. 1983, p. 1190, § 7; Ga. L. 1985, p. 496, § 4; Ga. L. 1994, p. 131, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 10; Ga. L. 2005, p. 253, § 18/HB 244; Ga. L. 2011, p. 678, § 4/HB 158; Ga. L. 2012, p. 995, § 9/SB 92; Ga. L. 2018, p. 1112, § 21/SB 365.)

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "local boards of education" for "local school boards" in the middle of the first sentence of subsection (a).

- Ga. L. 1983, p. 1190, § 1, not codified by the General Assembly, provided that it was the intent of that Act to implement the provisions of Ga. Const. 1983, Art. VI, Sec. VII, Para. I.

Ga. L. 2012, p. 995, § 45/SB 92, not codified by the General Assembly, provides that: "Section 9 of this Act is not intended by the General Assembly to change the effect of existing law but only to clarify the intent of the General Assembly in enacting the original legislation."

Ga. L. 2012, p. 995, § 46(b)/SB 92, not codified by the General Assembly, provides that: "Section 9 of this Act shall become effective on the first date upon which candidates may begin qualifying for the general primary in 2012; provided, however, that if implementation of Section 9 is not permissible on such date under the federal Voting Rights Act of 1965, as amended, then Section 9 shall become effective on January 1, 2013."

The United States Department of Justice objected to Section 9 (which added the sixth and seventh sentences in subsection (a)) under Section 5 of the Voting Rights Act of 1965, as amended, on December 21, 2012. However, in the case of Howard v. Augusta-Richmond County Commission, Case No. 1:14-cv-00097-JRH-BKE, Unit- ed States District Court for the Southern District of Georgia, Augusta Division, decided May 13, 2014, the court found that, in light of the holding of the United States Supreme Court in Shelby County v. Holden, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013), such objection under Section 5 was unenforceable and Section 9 was effective.

- Ballot secrecy, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Ballots, § 183-1-11-.01.

- For note on the 2001 amendment of this Code section, see 18 Ga. St. U. L. Rev. 96 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Election of clerks of state court on partisan basis.

- In enacting Ga. Const. 1983, Art. VI, Sec. VII, Para. I and O.C.G.A. §§ 21-2-138 and21-2-139, the General Assembly did not intend to place the election of clerks of state court on a nonpartisan basis unless the General Assembly so provided by special legislation. 1985 Op. Att'y Gen. No. U85-6.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, §§ 223, 224.

- 29 C.J.S., Elections, § 198 et seq.