Anderson v. Poythress

Per curiam.

Presidential candidate John Anderson appeals from the superior court’s denial of his application for a writ of mandamus to compel the Secretary of State to accept his nomination petition and to place his name on the general election ballot pursuant to Code Ann. § 34-1011 (c).

The essential facts were stipulated by the parties. In order for Anderson to have his name placed on the November 4, Georgia general election ballot by nomination petition, he had to submit a total of 57,539 valid signatures of registered voters. Anderson submitted a nomination petition to'the Secretary containing 70,649 signatures. Of the total submitted, 16,170 signatures were found by the Secretary to be invalid. These signatures were declared invalid for any of ten reasons such as the signatory was not a registered voter (14,560 signatures invalid) or the name was illegible (774 invalid). After the Secretary completed his review, Anderson’s petition contained 54,479 valid signatures. This was 3,060 signatures short of the total needed for Anderson to have his name placed on the ballot.

The superior court, after a hearing, upheld the Secretary’s determination that 16,170 signatures were invalid. The court found that there was no abuse of discretion by the Secretary in the verification process and that Anderson had failed to demonstrate that he had obtained the requisite number of valid signatures. On appeal, Anderson asserts that the superior court erred in placing upon him burden of proving that the invalidated signatures were in fact valid and in its holding that Anderson had failed to carry this burden of proof. We affirm.

1. Anderson’s application for mandamus is a civil action filed pursuant to Code § 34-1011 (c). It is well established that in a civil action the plaintiff has the burden of proof at trial. Kimsey v. Rogers, 166 Ga. 176 (142 SE 667) (1928); Code Ann. § 38-103. It has also been held that the party challenging the action of a public official has the burden of proof. See Beckham v. Gallemore, 147 Ga. 323 (93 SE 884) (1917). Similarly, in a quo warranto action to remove á public official from office, the burden of proof must be carried by the plaintiff. Grimsley v. Morgan, 178 Ga. 40 (172 SE 49) (1933). See generally 31A CJS Evidence §§ 104 et seq.

Despite this generally accepted rule, Anderson argues that he does not have the dual obligations of submitting the required signatures and of proving their validity “after the state failed in its administrative efforts to do so.” (Appellant’s brief, p. 5.) Such an argument misses the mark. This is not a situation where the state has *436failed to determine the validity of the signatures. Rather, the state has reviewed the signatures and has categorically determined that over sixteen thousand signatures were invalid; fourteen thousand were invalid because they were not signatures of qualified registered voters as specifically required by Code Ann. § 34-1010. Once the Secretary makes a specific determination of the validity or invalidity of each signature on a nomination petition and rejects that petition because it does not contain the requisite number of valid signatures, we believe the burden of establishing that the Secretary erred in his determination is upon the political candidate.

Appellant relies upon the case of McCarthy v. Secretary of the Commonwealth, 371 Mass. 667 (359 NE2d 291) (1977), to support his position, but we believe that this case illustrates the correctness of the procedures undertaken by the Secretary here. The procedures followed by the Secretary provided a specific reason for rejecting a signature as invalid. This is the exact process called for in the McCarthy case, and “it guarantees that the support demonstrated by the candidate is support from registered voters who are qualified to vote for that candidate.” McCarthy, 359 NE2d at 301. Thus, McCarthy lends support to the Secretary’s methodology by its holding that a nomination petition cannot be rejected unless reasons are given for the invalidation of the signatures by the individuals conducting the verification process. Since the Secretary provided these reasons, we now hold that the burden of demonstrating that the determinations were incorrect was upon plaintiff Anderson.

2. Anderson also argues in the alternative that he carried the burden of proof by showing some errors in the determinations made by the Secretary (approximately 44 signatures previously invalidated were credited to Anderson) and by obtaining oral statements from several persons that they were registered voters despite the Secretary’s determination (in a sample by appellant, 45% of 308 persons among the 14,605 persons determined not to be registered voters claimed they were in fact registered). We recognize the time exigencies under which this case was appealed from the superior court, and the constraints placed upon the appellant thereby, but we cannot say that the superior court’s decision was not authorized by the evidence. See Hallford v. Banks, 236 Ga. 472 (224 SE2d 35) (1976). In addition, the statute requires the Secretary of State to verify the signatures on a petition. The statute does not mandate a particular method for the verification. Since the statute does not specify the method of verification, it obviously follows that the Secretary of State has the duty of making this decision. In making this decision, the Secretary of State must exercise his discretion in determining which method can reasonably be expected to operate in *437a thorough and professional way so as to produce accurate results. We cannot find based on the facts in evidence that the determination of the Secretary of State was an abuse of the discretion exercised or that his determination was incorrect.

Decided September 25, 1980. Glass & Fitzgerald, Russell S. Thomas, Rogovin, Stern & Huge, Mitchell Rogovin, Joel I. Klein, H. Bartow Farr, III, Jennifer Freeman, for appellants. Arthur K. Bolton, Attorney General, Don A. Langham, First Assistant Attorney General, Michael J. Bowers, Senior Assistant Attorney General, for appellee.

We are aware that it is an important element of the electoral process to have all eligible candidates on the ballot. The statutory scheme for nomination by petition provides a minimal requirement that a statewide candidate obtain the signatures of 2-1/2% of the state’s registered voters in order to appear on the ballot. This procedure was found to be constitutional in Jenness v. Fortson, 403 U. S. 431 (91 SC 1970, 29 LE2d 554) (1971). We believe that there is a valid state interest in requiring compliance with this statute. If any candidate fails to satisfy the 2-1/2% requirement, and if the Secretary of State indicates the reasons for rejecting or invalidating the signatures on the petition, then it is proper, in the absence of sufficient contrary evidence, to exclude that candidate from the printed ballot.

Judgment affirmed.

Undercoñer, C. J., Clarke, J., and Judge Lamar Knight concur. Judge Marion T. Pope, Jr., concurs specially. Nichols, Bowles and Marshall, JJ., dissent. Jordan, P. J., and Hill, J., disqualified.