2021 Georgia Code
Title 21 - Elections
Chapter 2 - Elections and Primaries Generally
Article 4 - Selection and Qualification of Candidates and Presidential Electors
Part 3 - Nomination and Qualification of Independent Candidates, Candidates of Political Bodies, and Presidential Electors
§ 21-2-171. Examination of Petitions; Basis for Grant or Denial of Filing; Review and Appeal of Denial

1. When any nomination petition is presented in the office of the Secretary of State or of any superintendent for filing within the period limited by this chapter, it shall be the duty of such officer to examine the same to the extent necessary to determine if it complies with the law. No candidate shall be qualified if such nomination petition:
   1. Contains material errors or defects apparent on the face thereof;
   2. Contains material alterations made after signing without the consent of the signers; or
   3. Does not contain a sufficient number of signatures of registered voters as required by law.

      The Secretary of State or any superintendent shall review the petition for compliance with the provisions of Code Section 21-2-170 and shall disregard any pages or signatures that are not in conformance with the provisions of that Code section. The Secretary of State or any superintendent may question the genuineness of any signature appearing on a petition or the qualification of any signer whose signature appears thereon and, if he or she shall thereupon find that any such signature is improper, such signature shall be disregarded in determining whether the petition contains a sufficient number of signatures as required by law. The invalidity of any sheet of a nomination petition shall not affect the validity of such petition if a sufficient petition remains after eliminating such invalid sheet.

2. Upon the filing of a nomination petition, the officer with whom it is filed shall begin expeditiously to examine the petition to determine if it complies with the law. During such examination the officer shall have the right to summon by subpoena on two days' notice and interrogate under oath the candidate named in the petition, any person who signed the petition, any person who executed or witnessed any affidavit or certificate accompanying the petition, or any other person who may have knowledge of any matter relevant to the examination. Such officer shall also have the right to subpoena on two days' notice any record relevant to the examination. No witness shall be compelled to attend if he or she should reside more than 100 miles from the place of hearing by the nearest practical route; provided, however, that the officer may compel the taking of his or her testimony by deposition in the county of the residence of the witness. The sheriff of any county, or his or her deputy, or agent of the officer shall serve all processes issued by the officer, or the same may be served by United States registered or certified mail or statutory overnight delivery; and the production of an appropriate return receipt issued by the United States post office or commercial delivery firm shall constitute prima-facie evidence of such service. In case of the refusal of any person subpoenaed to attend or testify, such fact shall be reported forthwith by the officer to the appropriate superior court, or to a judge thereof, and such court or judge shall order such witness to attend and testify; and, on failure or refusal to obey such order, such witness shall be dealt with as for contempt. Any witness so subpoenaed, and after attending, shall be allowed and paid the same mileage and fee as now allowed and paid witnesses in civil actions in the superior court. The officer shall not be bound by technical rules of evidence in hearing such testimony. The testimony presented shall be stenographically recorded and made a part of the record of the examination. If the petition complies with the law, it shall be granted and the candidate named therein shall be notified in writing. If the petition fails to comply with the law, it shall be denied and the candidate named therein shall be notified of the cause for such denial by letter directed to his or her last known address. In neither case shall the petition be returned to the candidate.
3. The decision of the officer denying a nomination petition may be reviewed by the superior court of the county containing the office of such officer upon an application for a writ of mandamus to compel the granting of such petition. The application for such writ of mandamus shall be made within five days of the time when the petitioner is notified of such decision. Upon the application being made, a judge of such court shall fix a time and place for hearing the matter in dispute as soon as practicable; and notice thereof shall be served with a copy of such application upon the officer with whom the nomination petition was filed and upon the petitioner. At the time so fixed the court, or any judge thereof assigned for the purpose, shall hear the case. If after such hearing the said court shall find that the decision of the officer was erroneous, it shall issue its mandate to the officer to correct his or her decision and to grant the nomination petition. From any decision of the superior court an appeal may be taken within five days after the entry thereof. It shall be the duty of the appellate court to fix the hearing and to announce its decision within such period of time as will permit the name of the candidate affected by the court's decision to be printed on the ballot if the court should so determine.

(Code 1933, § 34-1011, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 13; Ga. L. 1997, p. 590, § 14; Ga. L. 1998, p. 295, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 20, § 1; Ga. L. 2010, p. 914, § 6/HB 540; Ga. L. 2016, p. 883, § 3-6/HB 927.)

- Witness fees and mileage, § 24-13-25.

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

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."

- For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 34A-904 and former § 21-3-90 are included in the annotations for this Code section.

- To prohibit candidates from getting their names on the ballot solely because they cannot post a certain amount of money is illegal and unconstitutional. Where the candidate can get the candidate's name on the ballot in some other fashion, either by a nominating petition, primary election, or pauper's affidavit, such unconstitutionality does not attach. Jenness v. Little, 306 F. Supp. 925 (N.D. Ga. 1969) (decided under former Code 1933, § 34A-904).

- County board of election (BOE) members were entitled to qualified immunity in their individual capacities against a candidate's 42 U.S.C. § 1983 claims for the BOE's challenge to the candidate's nomination petition because a reasonable official would not have believed that compliance with the requirements of O.C.G.A. § 21-2-171 in response to the facial deficiency of the candidate's petition constituted an unlawful action in violation of the candidate's rights; the petition did not comply with O.C.G.A. § 21-2-170 because it lacked the necessary notarization, rendering it facially defective, and given this defect, § 21-2-171 required the BOE to disregard the non-conforming pages of the petition and authorized it to hold a hearing in connection therewith. Johnson v. Randolph County, 301 Ga. App. 265, 687 S.E.2d 223 (2009).

- Trial court properly dismissed a nominee's lawsuit seeking to have the nominee's name placed upon the ballot for the 2016 general election as an independent candidate for President of the United States because the notices of candidacy were submitted 11 days after the deadline set forth in O.C.G.A. § 21-2-132(d)(1) and the nominee failed to have enough signatures verified, thus, the nominee was not entitled to have the nominee's name placed on the ballot. De La Fuente v. Kemp, 300 Ga. 79, 793 S.E.2d 89 (2016).

For comparison of procedures followed by political parties and political bodies, see McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

- The procedures provided for in O.C.G.A. §§ 21-2-132(c) and (d) (see now (d) and (e)),21-2-170(b) and (g),21-2-171(a),21-2-172, and21-2-322(7) relate only to the right to have the name of a candidate or the nominee of a political body printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of the voter's choice and to have that write-in vote counted. McCrary v. Poythress, 638 F.2d 1308 (5th Cir.), cert. denied, 454 U.S. 865, 102 S. Ct. 325, 70 L. Ed. 2d 165 (1981).

- Regardless of the merits or lack thereof of the candidate's claims that the candidate's nomination petition was miscounted, improperly counted, or that there were irregularities in the process leading to the unlawful decision to keep the candidate off the November ballot, the candidate's present appeal was moot because the general election had already taken place. Bodkin v. Bolia, 285 Ga. 758, 684 S.E.2d 241 (2009).

Cited in Johnson v. Fortson, 237 Ga. 367, 227 S.E.2d 392 (1976); McBride v. Wetherington, 199 Ga. App. 7, 403 S.E.2d 873 (1991); Lewy v. Beazley, 270 Ga. 11, 507 S.E.2d 721 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34A-904 and former Code Section 21-3-90 are included in the annotations for this Code section.

- For duties which require no discretion or judgment, the Secretary of State or judges of a probate court may legally employ certified public accountants or other persons on a temporary basis to assist in checking nomination petitions. 1965-66 Op. Att'y Gen. No. 66-159 (decided under former Code 1933, § 34A-904).

- Where a given sheet contained the names of eight Bibb County electors and two Jones County electors, it was permissible for the party to delete the names of the Jones County electors. Although a petition must not contain "material alterations" without the consent of the signers, a deletion of a name would not violate those provisions, as it was obviously intended to prevent changes in names or addresses to keep improper signatures on a petition. 1965-66 Op. Att'y Gen. No. 66-56 (decided under former Code 1933, § 34A-904).

- All signatures, otherwise proper, on a nomination petition signed thereon within 180 days of the last day for filing the petition, should be counted. 1965-66 Op. Att'y Gen. No. 66-204 (decided under former Code 1933, § 34A-904).

- Former Code 1933, § 34A-904 authorized the city's governing authority to charge qualification fees to those running for office in a general city election. 1969 Op. Att'y Gen. No. 69-330 (decided under former Code 1933, § 34A-904).

- The form prescribed by the Secretary of State for the nominating petition of a candidate seeking to have the candidate's name placed on the general election ballot cannot be altered by the candidate, and if altered sheets are included in the petition, the altered sheets would be eliminated as invalid without affecting the validity of the petition, provided the petition were otherwise valid. 1976 Op. Att'y Gen. No. U76-22.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Elections, § 239 et seq.

- 29 C.J.S., Elections, § 193 et seq.

- Nonregistration as affecting one's qualification as signer of petition for special election, submission of proposition, or nominating petition, 100 A.L.R. 1308.

Challenges to write-in ballots and certification of write-in candidates, 75 A.L.R.6th 311.