dissenting.
I dissent to Division 2 of the majority opinion and to the judgment in Case No. S93A0786, but I concur in Case No. S93X0787.
*177The majority has mistakenly relied on Stephens v. Ball Ground School Dist., 153 Ga. 690, 694 (2) (113 SE 85) (1922), for the proposition that voters who did not sign the oath on their registration cards are not entitled to have their votes counted. The case of Cole v. McClendon, 109 Ga. 183 (3) (34 SE 384) (1899), actually controls the issue now before us.
In Cole the contention was made that the votes of certain individuals were not entitled to be counted because the voters in question had not signed the oath prescribed by law. Id. at 189. At that time the Georgia Constitution set the qualifications necessary to vote and provided that the General Assembly may provide for the “registration of all electors.” Notably, registration according to the law was not set out as a qualification to vote. We rejected the challenge to the votes in question, holding, in summary, that the failure to sign the oath was an irregularity in registration that would not disenfranchise the voters and that instead there had to be some allegation that the voters, if regularly registered to vote, would not be qualified to do so. Id. at 189-190.
In Stephens the same issue that was raised in Cole was again presented. At the time Stephens was decided, the applicable constitutional provision had been rewritten so as to make registration in accordance with the law a qualification to vote. Stephens at 692. For that reason, we did not follow Cole and instead held that the votes cast by persons who did not sign their registration cards were not entitled to be counted. Id. at 694.
The same constitutional language that the Court found controlling in Stephens was present in the 1976 Georgia Constitution, see Art. II, Sec. I, Par. I, but was deleted from the 1983 Georgia Constitution, see Art. II, Sec. I, Pars. I & II. Our present Constitution now reads like the Constitution in existence at the time Cole was decided, in that Art. II, Sec. I, Par. II sets forth the qualification of electors1 and then states that the General Assembly “shall provide by law for the registration of electors.”
Because of this change in the 1983 Constitution, I find that Stephens is inapplicable and that Cole is controlling.
Moreover, I find that Cole■ is consistent with Malone v. Tison, 248 Ga. 209 (282 SE2d 84) (1981), in which we held that the failure of registrars to comply with their statutory duties will not defeat the *178constitutional right of suffrage. Id. at 213-215 (3).2 In doing so, we relied on 29 CJS 125, Elections, § 51. That section of CJS provides, in addition to the language quoted in Malone, that “[w]here the elector has complied with all the mandatory provisions of the statute applicable to him, irregularities by registration officials will not deprive him of his right to have his vote counted.”
Decided June 7, 1993. Worthington & Flournoy, Samuel W. Worthington III, for appellant. Doffermyre, Shields, Canfield & Knowles, Kenneth S. Canfield, for appellee.In the present case, the applicable statute is OCGA § 21-2-221. That Code section requires the registrar or deputy registrar, first, to fill in all blanks on the registration card with information furnished by the person desiring to register to vote and, then, upon completion of the form, to “administer the oath to the applicant and then have him sign it,” id. Because it is the registrar’s duty to administer the oath and have the applicant sign it, I would not disenfranchise a voter based on the registrar’s failure to do so, so long as the voter, if he or she had been properly registered, would have been qualified to vote.
For the foregoing reasons, I dissent to Division 2 of the majority opinion and to the judgment in Case No. S93A0786.
I am authorized to state that Justice Benham joins in this dissent.
These qualifications are that a person must meet the minimum residency requirements as provided by law, must be a citizen of the United States, a resident of Georgia, and at least 18 years of age, and must not be disenfranchised by Art. II of the Constitution (i.e., not convicted of a felony involving moral turpitude and not judicially determined to be mentally incompetent, Art. II, Sec. I, Par. III).
In Malone the registrars failed to advertise “additional registration places,” OCGA § 21-2-218 (d) (then Code Ann. § 34-610 (c)).