concurring specially.
Georgia law provides that nominations of candidates for public office may be made by nomination petitions signed by electors and filed with the Secretary of State. Code Ann. § 34-1010. The petition is required by law to contain the signatures of duly qualified and registered electors of the State and a petition will not be permitted to be filed if it does not contain a sufficient number of such signatures. Code Ann. § 34-1011 (a) (iii).
In the present case 57,539 names were required on the nomination petition, as stipulated by the parties. This is in compliance with Georgia election law which mandates that the number of electors signing the petition be not less than two and one-half percent of the total number of electors eligible to vote in the *438last election for the filling of the office the candidate is seeking. Code Ann. § 34-1010 (b).
Once a nomination petition has been presented to the Secretary of State, the Secretary has the statutorily imposed duty to examine the petition to the “extent necessary to determine if it complies with the law.” Code Ann. § 34-1011 (a). Following the examination of the petition the Secretary is required to place the name of the candidate on the election ballot if the petition bears the required number of signatures of duly qualified and registered voters. If, however, following the examination of the petition, it is determined by the Secretary of State that the petition fails to comply with the law, the petition shall be denied and the candidate notified of the cause of such denial. Code Ann. § 34-1011 (b).
In the present case the petition fails to comply with the law primarily because of its failure to contain a sufficient number of signatures of qualified and registered voters. Of the 16,170 signatures found by the Secretary to be invalid, 14,560 were designated as such because the signatory was not a registered voter.
The decision of the Secretary of State in denying a nomination petition may be reviewed by the Superior Court by an application for a writ of mandamus. Code Ann. § 34-1011 (c). The mandamus action must be filed within five days of the time the petitioner is notified of the denial of his petition and a hearing date shall be fixed by the trial judge as soon as practicable. Code Ann. § 34-1011 (c). Under Georgia law a suit of writ of mandamus may issue to compel a due performance by an official who fails to perform or improperly performs his official duties. Code Ann. § 64-101.
The burden of persuasion or the duty of establishing the issues in the case is generally upon the plaintiff in a mandamus action. The. plaintiff must carry that burden by a preponderance of the evidence. This should be distinguished from the burden of producing evidence which is the duty of going forward with the presentation of evidence or of making a prima facia case. Agnor’s Ga. Evidence § 17-2. It is the burden of producing evidence which may shift during the trial, unlike the burden of persuasion which is set by the pleadings.
Anderson argues that the burden of persuasion should not have been on him, but instead on the Secretary of State. But even assuming that the Secretary of State had the burden of persuasion that the signatures were invalid, once the evidence was produced by the Secretary to make out a prima facia case that the signatures were not of registered voters, Anderson would then have the burden of producing evidence to counter the Secretary’s prima facie case and avoid a directed verdict. In other words no matter which party has the burden of persuasion, Anderson must still produce evidence as to the *439validity of the signatures or as to the abuse of discretion of the Secretary of State by invalidating those signatures in order for the court to issue a mandamus.
The burden placed on the candidate is to present evidence which negates the reason for which a particular signature was rejected from the petition. In this case, where the majority of the signatures were rejected as being those of unregistered voters, the plaintiff merely has to show that 3,060 were in fact registered voters.
In my opinion a presentation to the court of the official voter registration lists of a county indicating that the invalidated signatures were those of registered voters is not an impossible or onerous burden on the candidate.
The court in checking the signature of the person against the registration records may find that particular signatures should have been certified by the Secretary of State and if the number so found to have been certifiable in the first instance is sufficient to complete the total number required for nomination, it may order the Secretary of State to accept the petition and thereby the candidate’s name would appear on the ballot. I am not able to agree that a candidate’s name should be placed on the ballot if in fact he did not comply with the statutory requirements.
The evidence presented in this case does not support a finding that the requirements of the statute were met, therefore I must concur in the judgment of the court.