Lucken v. Falligant

Hill, Justice,

concurring specially.

I would affirm the judgment for an additional reason.

Complainants sought mandamus to compel the superintendent of elections to certify the write-in vote and the result of the election, and to compel the township officials to accept that certification and administer the oath of office to the winners.

The duly qualified candidates for municipal office were each unopposed on the ballots. There was no notice of candidacy, by or on behalf of the write-in candidates, to the intendant (mayor) or by publication.

Article II, Sec. Ill, Par. Ill of the Constitution (Code Ann. § 2-603) provides in pertinent part as follows: "No person elected on a write-in vote shall be eligible to hold office unless notice of his intention of candidacy was given twenty or more days prior to the election by the person to be a write-in candidate, or by some other person or group of persons qualified to vote in the subject election, as follows: ... in a municipal general election, to the mayor or similar officer thereof and by publication in the official gazette of the municipality holding the election. The General Assembly may enact other reasonable *819regulations and require compliance therewith as a condition of eligibility to hold office in this State.”1 Because the write-in candidates are not eligible to hold the offices in question, the complainants were not entitled to mandamus to have the write-in candidates sworn into office.

Code § 34A-1004 (g) of the Municipal Election Code provides as follows: "Any other provision of law to the contrary notwithstanding, in the event there is no opposed candidate, then no name shall appear on the general election ballot unless a write-in candidate has qualified as provided by law. Further, if there are no opposed candidates, no eligible write-in candidates and no issues to be submitted to the electorate, no election shall be conducted. Each such unopposed candidate shall be deemed to have voted for himself. The superintendent shall certify such unopposed candidate as elected in the same manner as he certifies other candidates as elected pursuant to section 34A-1404.” There being no eligible write-in candidates, the duly qualified candidates (unopposed) were entitled to be certified by the election superintendent. Hence, the complainants were not entitled to the relief sought by mandamus.

I would affirm the judgment for this addition*820al reason.

This constitutional amendment was adopted at the November 1966 general election. See Ga. L. 1967, p. 1128. It was not referred to in Thompson v. Willson, 223 Ga. 370 (155 SE2d 401) (1967). The authority granted to the General Assembly in 1966 to enact supplementary laws would not have saved the 1920 law in issue in Thompson v. Willson, requiring all candidates (including write-in candidates) to proceed by nominating petition. Ga. L. 1920, pp. 757, 763 — 764. In any event, the 1966 amendment was not cited by the court in Thompson v. Willson, supra, and the statement by that court that the voter has an unshackled right to write-in, 223 Ga. 373 (although perhaps true insofar as the right to voter’s power is concerned), clearly was affected by the 1966 amendment at least as to the write-in candidate’s ability to hold office.