Anderson v. Poythress

Nichols, Justice,

dissenting.

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.

The essential facts were stipulated by the parties. Anderson needed 57,539 valid signatures of registered voters on his nomination petition in order to have his name placed on ballots prepared for the November 4, 1980, Georgia general election. On July 9, 1980, he submitted 70,649 signatures, but 16,170 of these were found by the Secretary to be invalid. The majority of signatures (14,650) were invalid because the signer was not a registered voter. Thus, Anderson was 3,060 signatures short of the required numbér.

On September 8, 1980, five days after being notified by the Secretary of the insufficient number of signatures, Anderson applied to the superior court for a writ of mandamus pursuant to Code Ann. § 34-1011 (c). On September 12, after a hearing, the superior court upheld the Secretary’s determination that 16,170 signatures were invalid. The court found that there was no abuse of discretion by the *440Secretary in the verification process and that Anderson had failed to demonstrate that he had obtained the requisite number of valid signatures.

Code Ann. § 34-1010, the statute which permits a candidate to obtain nomination for public office by submitting a nomination petition to the Secretary of State, was held not to violate the First and Fourteenth Amendments of the U. S. Constitution in Jenness v. Fortson, 403 U. S. 431, 442 (1971). The Court held that there was “surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a... candidate on the ballot.” In another case from this state the Supreme Court stated: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights ... are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U. S. 1, 17 (84 SC 526, 11 LE2d 481) (1964). The resulting synthesis of these two views is that the important state interest of requiring that a candidate show a modicum of support before being placed on the ballot must not be achieved at the expense of depriving voters of their right to vote for the candidate of their choice. “The right of... an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters ... [T]he right to vote is ‘heavily burdened’ if that vote may be cast only for one of two candidates ... at a time when other candidates are clamoring for a place on the ballot.” Lubin v. Panish, 415 U. S. 709, 716 (94 SC 1315, 39 LE2d 702) (1974). Thus, given the constitutionality of Code Ann. § 34-1010 on its face, we must now consider whether the application of the. statute in this case resulted in an accurate and valid determination that Anderson’s name not be placed on the ballot. See generally Storer v. Brown, 415 U. S. 724 (94 SC 1274, 39 LE2d 714) (1974) and Williams v. Rhodes, 393 U. S. 23 (1968).

Under Code Ann. § 34-1011, the Secretary is required “expeditiously to examine the petition to the extent necessary to determine if it complies with the law.” (Emphasis supplied.) In performing the difficult task of examining Anderson’s petition comprising some 13,000 pages and containing over 70,000 signatures, the Secretary adopted “guidelines” and “procedures” to be followed by individual investigators who had the responsibility of verifying the signatures at the county level. Anderson submitted his petition on July 9, 1980, and the verification process took place during July and August. In September the Secretary notified Anderson that his nomination petition had been denied. Under the statute, Anderson then had five days to bring his application for mandamus, seeking a review of the Secretary’s determination.

*441It is apparent that severe time constraints were placed upon Anderson, and, no doubt, his ability to challenge all of the Secretary’s invalidations was adversely affected. Nevertheless, Anderson was able to prove, and the Secretary agreed by stipulation, that ten signatures “previously invalidated as being listed within the wrong county” were actually valid. Anderson was also given credit for thirty signatures incorrectly invalidated by the Secretary because there was “no signature to compare.” Four additional signatures were credited to Anderson by the Secretary after his search of Clayton County registration records for July 8,1980, disclosed that these voters had recently registered. These latter two corrections were also stipulated by the parties. In addition to the above, it is undisputed that the Secretary’s rechecking of his initial count of the total signatures resulted in an upward revision in favor of Anderson of 1,262 signatures. While this revision and the changes in the other forty-four signatures do not establish that Anderson is entitled to be placed on the ballot, they are significant from the viewpoint that they conclusively demonstrate the existence of some incorrect determinations in the verification process.

Even more significant, however, is the inconsistent methodology utilized by individual investigators in verifying whether or not the signers of the petition were registered voters. The Secretary’s guidelines and procedures for the verification of signatures required that the voter registration cards be checked for a comparison with the names and signatures on the petition. Overall, 14,650 signatures were invalidated as those of unregistered voters. However, it is clear from the record that the investigators used various methods to determine whether or not a person was a registered voter. For example, in Fulton County over 1,000 names which were not found on the computerized voter registration lists were found by checking the registration cards. But, in Chatham County where 858 signers were found not to be registered, the investigator did not check the registration cards at all. In Clayton County, where 486 signers were found not to be registered, the investigators also completely failed to refer to the cards. In Cobb County, where 1,785 signers were found not to be registered, there was no countywide computerized list of registered voters and investigators relied solely on the registration cards. But uncontradicted testimony showed that out of 17 invalidated as not registered, 12 had cards. There was also evidence that in Fulton County, where 5,325 signatures were invalidated, a computerized address list was checked only infrequently. Yet such cross-checking in other counties such as DeKalb County resulted in the validation of previously invalidated signatures.

Thus, it is clear that despite the Secretary’s efforts to provide *442specific procedures for verification, there was a failure by the individual investigators to follow the established procedure. Yet following a consistent procedure during verification was essential to the accuracy of the process. Moreover, while the voter list is the official list of those permitted to vote (Code Ann. § 34-629), and is prepared from the registration cards (Code Ann. § 34-622), reliance on the list alone or on the registration cards alone, or relying occasionally on both, has obviously resulted in discrepancies and in the invalidation of petition signers who are actually registered voters. See Collins v. Collins, 129 Ga. App. 372 (199 SE2d 626) (1973), where voters not on a voter list were permitted to vote.

Viewing these verification procedures, as we must, in light of the fundamental constitutional rights involved, we would hold that Anderson has produced sufficient evidence to place the verification process in doubt. See Taggart v. Phillips, 242 Ga. 454 (249 SE2d 245) (1978). Under Code Ann. § 34-1011 (a) the burden should be shifted to the Secretary of State to demonstrate the correctness of his invalidations. The statute is clear in placing the burden on the Secretary to examine the petition “to the extent necessary to determine if it complies with the law.” Under the constitutional standards discussed previously, this heavy burden of proof must be met by the Secretary. “To place the burden on the candidate would erect too high a barrier to access to the ballot.” McCarthy v. Secretary of the Commonwealth, 371 Mass. 667 (359 NE2d 291) (1977). This is especially true in view of the time limits imposed on Anderson. For if Anderson had to prove in such a short time that 3,060 signatures were valid out of the 16,000 signatures rejected, the task would be an impossible one.

We therefore would hold that after the Secretary’s verification process was completed, the burden was placed upon Anderson to show that the process was suspect. Once Anderson made this showing, it became the Secretary’s burden to demonstrate that the verification process went to the extent necessary to properly invalidate the petition.

Accordingly, we respectfully dissent with the majority opinion, and we would order that Anderson’s name be placed on the November 4, 1980, general election ballot as an independent candidate for the office of President of the United States.

I am authorized to state that Justice Bowles and Justice Marshall join in this dissent.