dissenting.
The trial court found the election system in Towns County in disarray. This decision approves that “system.” Nonresidents can and do control the outcome of elections in Towns County, and this decision leaves it that way. Of the 3611 voters who voted in the election, 660 were absentee voters (30 of which were voided). That is, 18% voted or sought to vote by absentee ballots. Garrett would have won the school superintendent’s race with those votes cast in person by 177 votes except that he lost the absentee ballot race by 210 votes. In the sheriffs race, McConnell would have won based on votes cast in person by 103 votes except that he lost the absentee ballot race by 225 votes. Garrett and McConnell each received less than a third of the absentee votes. The contestants were elected by Towns County residents voting in person but were defeated by nonresidents voting via absentee ballots.
A majority of the court invoke the 30 day provision of Code Ann. § 34-631 (d) so as to reinstate absentee ballots of sworn nonresidents and then hold that the contestant failed to carry the burden of proof as to the school superintendent’s race. Due to an alleged failure to carry the burden of proof, the majority in effect “presumes” that those absentee voters left Towns County within 30 days of the election. I an unwilling to so presume. I would find that the. contestants made out a prima facie case and require the defendants to prove that those voters left thf county within the 30 days preceding the election.
The trial court found numerous election irregularities, including “poor, loose or non-existent verification, certification and rejection procedures as to absentee ballots.” The court concluded that “These irregularities combine to produce and perhaps induce an absentee ballot tally of questionable validity and doubtful accuracy, and makes the validity and accuracy almost impossible to verify.” The trial court concluded that the election as to both the sheriff’s and school superintendent’s offices “was so defective as to place in doubt the result____” This conclusion was authorized by Code § 34-1703 and I would affirm the judgment of the trial court.