2021 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 12 - Returns
§ 21-2-504. Special Primary or Election Upon Failure to Nominate or Elect or Upon Death, Withdrawal, or Failure of Officer-Elect to Qualify
- Whenever any primary or election shall fail to fill a particular nomination or office and such failure cannot be cured by a run-off primary or election, whenever any person elected to public office shall die or withdraw prior to taking office, or whenever any person elected to public office shall fail to take that office validly, the authority with whom the candidates for such nomination or office file notice of candidacy shall call a special primary or election to fill such position. If a special primary will not be held and unless otherwise provided by law, the call of a special election shall be made within 45 days after the occurrence of the vacancy.
- Whenever any person elected to municipal public office shall, after taking office, die, withdraw, or for any other reason create a vacancy in his or her office and the municipal charter fails to provide a method for the filling of such vacancy, the governing authority shall thereupon call a special election to fill such vacancy.
(Code 1933, § 34-1514, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 292, § 1; Ga. L. 1970, p. 347, § 30; Ga. L. 1980, p. 685, § 1; Ga. L. 1984, p. 1, § 13; Ga. L. 1998, p. 295, § 1.)
Cross references.- Special elections and primaries generally, § 21-2-540, et seq.
Administrative Rules and Regulations.- 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.
JUDICIAL DECISIONS
O.C.G.A. § 21-2-504(a) codifies common-law rule requiring the calling of a new election when the winner of an election is ineligible to assume office. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
Intent.
- By the enactment of O.C.G.A. § 21-2-504, the General Assembly intended to allow the electorate to fill an elective term which would be vacant from its inception. By specifying death and withdrawal as events which trigger the special election requirement, the General Assembly indicated the full reach of its intention by providing for a new election when either involuntary or voluntary actions created such a vacancy. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
State encroachment on right to vote.
- To survive strict judicial scrutiny, any state encroachment on the right to vote must be justified by a compelling state interest. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
Manner of filling vacancies before and during term distinguished.
- When a vacancy occurs during the term of office of a Justice of the Supreme Court of Georgia, the seat is filled by executive appointment, but when the vacancy occurs after a general election and prior to the commencement of the term, the seat is filled by a special election called for that purpose. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
Subsection (a) applicable to resignations.
- Although subsection (a) specifies only death and withdrawal as events which trigger a special election, it seems clear that the General Assembly meant, by withdrawal, any voluntary vacating of the position to which one had been elected and the ordinary, logical means by which an incumbent voluntarily leaves office is by resignation. Therefore, if subsection (a) is to serve its intended purpose, its language must be construed to encompass resignations. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
The term "withdraw" in O.C.G.A. § 21-2-504 must be read to encompass resignations. Only then will it effectuate the legislative purpose of allowing the people of this state to fill vacancies which occur in elective offices either voluntarily (by withdrawal) or involuntarily (by death) before an elected official assumes office. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).
Cited in Bond v. Fortson, 334 F. Supp. 1192 (N.D. Ga. 1971).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34-1515 are included in the annotations for this Code section.
If no one elected in special election, offices filled by runoff election.- If no one is elected in a special election, the offices of justice of the peace (now magistrate) and constable must be filled by a runoff election rather than by appointment. 1969 Op. Att'y Gen. No. 69-59 (decided under former Code 1933, § 34-1515).
Eligible candidate may offer for two offices.- A candidate, otherwise eligible as a runoff candidate, may offer for both the office of justice of the peace (now magistrate) and the office of constable in a runoff election. 1969 Op. Att'y Gen. No. 69-209.
Special election proper to fill office where elected person withdraws.- A special election is the proper procedure to fill the office of district attorney in the event the person elected to the office in the general election has withdrawn. 1976 Op. Att'y Gen. No. 76-120.
Write-in candidate failing to provide prior notice of candidacy.- A vacancy in an office which results from a determination that the election for that office failed because of a failure to comply with the constitutional requirement that a write-in candidate publish and provide prior notice of candidacy is filled by a special election. 1976 Op. Att'y Gen. No. 76-56.
Individual receiving no votes in general primary.- This section did not permit a special primary to be called a nomination for which only one individual qualified where the individual received no votes in the general primary. 1978 Op. Att'y Gen. No. 78-60.
Right to vote in special primary or election.- If a special primary or election is called, voters who did not register or vote previously in the regular primary are still entitled to vote in the special primary or election provided they register to vote on the fifth day after the call of such special primary or election. 1982 Op. Att'y Gen. No. 82-53.
If a special primary is held for the United States House of Representatives, a person is not bound to vote in the same political party's primary in which the person voted previously in the regular primary. 1982 Op. Att'y Gen. No. 82-53.
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d, Elections, § 1.
C.J.S.- 29 C.J.S., Elections, § 181.
ALR.
- Death or disability of one elected to office before qualifying as creating a vacancy, 74 A.L.R. 486.
Statutory provision as to manner and time of notice of special election as mandatory or directory, 119 A.L.R. 661.
