2021 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 13 - Contested Elections and Primaries
§ 21-2-528. Appeals From Court's Determination on Contest Petition
An appeal from the final determination of the court may be taken within ten days from the rendition thereof as in other civil cases. The filing of a notice of appeal shall not act as a stay or supersedeas. The appellant may apply to the appellate court for a stay or supersedeas, and such court shall consider applications for stays or supersedeas in such cases without regard to whether any notice of appeal has been filed or the record docketed in such cases.
(Code 1933, § 34-1709, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1997, p. 590, § 41; Ga. L. 1998, p. 295, § 1; Ga. L. 2003, p. 517, § 60; Ga. L. 2016, p. 883, § 3-7/HB 927.)
Editor's notes.- Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"
Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."
Law reviews.- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).
JUDICIAL DECISIONS
Election contest is a civil case. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).
Georgia Supreme Court's decision in Kendall v. Delaney, 282 Ga. 482 (2007) is an outlier in Georgia's general election case law and relies solely on cases involving primary election challenges without acknowledging the distinction between primary and general elections and is overruled; to the extent that Scoggins implies that a general election challenge will be moot if a party fails to seek a stay or supersedeas pursuant to O.C.G.A. § 21-2-528, it is disapproved. Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020).
What contestant must show.
- If the contestant can sustain the charges, or enough of them to cast doubt upon whether the election was fairly and lawfully conducted, it should be voided and another held. If the contestant cannot, the election should stand. Nichols v. Acree, 112 Ga. App. 287, 145 S.E.2d 92 (1965).
Appeal of contestant to city council election dismissed as moot.
- The appeal of a contestant to a city council election was dismissed as moot because the contestant failed to move to expedite consideration of an appeal in view of an impending election, and the Supreme Court of Georgia finally heard the appeal after the election had already occurred and the term of office for the seat at issue had expired. Allen v. Yost, 282 Ga. 865, 655 S.E.2d 580 (2008).
Appeal from order dismissing challenge to primary election dismissed as moot.
- Because the record showed that an unsuccessful candidate in a primary election waited nearly a month and a half to challenge that election, request a stay of the general election, or petition the Supreme Court of Georgia for an expedited appeal, the mootness doctrine applied to the challenge requiring dismissal of the appeal. McCreary v. Martin, 281 Ga. 668, 642 S.E.2d 80 (2007).
Finding that the appellant failed to show that enough illegal votes had been cast to change or place in doubt the result of the mayoral election was upheld because the appellant failed to show that one voter was not a resident of the city, that another was inappropriately offered something of value in exchange for a vote, and that another voter was incompetent to vote in the mayoral election thereby making their votes valid. Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020).
Appeal of election contests.
- While the established rule in Georgia is that a primary election contest becomes moot after the general election has taken place, the Georgia Supreme Court has routinely decided general election challenges on the merits, regardless of whether a stay or supersedeas was requested or obtained. Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020).
Overruling of a general demurrer (since abolished) to an election contest proceeding is appealable. Blackburn v. Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967).
Cited in Payne v. Chatman, 267 Ga. 873, 485 S.E.2d 723 (1997).
RESEARCH REFERENCES
Am. Jur. 2d.
- 26 Am. Jur. 2d, Elections, §§ 429, 430.
C.J.S.- 29 C.J.S., Elections, § 547 et seq.
