dissenting.
By affirming the judgment of the trial court, the majority opinion rejects the person selected by the electorate, then selects the person rejected by the electorate, and then insulates the person rejected by the electorate from further challenge. Such a resolution of this dispute seems to be contrary to fundamental principles of democracy and American jurisprudence, and I must respectfully dissent.
1. In addressing appellant’s claim that he was eligible to run for the Fifth District seat on the Clayton County Board of Education, the majority opinion affirms the trial court’s narrow and restrictive interpretation of OCGA §§ 21-2-218 (c) and 21-2-221 (d), and 42 USC § 1973 (gg) (3) (d), also known as the “Motor Voter Act,” in a manner that unduly excludes candidates from participating in the democratic process. Since this is our first opportunity to interpret OCGA §§ 21-2-218 (c) and 21-2-221 (d) in conjunction with 42 USC § 1973 (gg) (3) (d), I would, in keeping with the intent of both the Georgia and federal acts, interpret them in a broad manner so as to provide for the inclusion of citizens in the democratic process, rather than their exclusion.
The majority opinion goes on to affirm both the trial court’s determination leaving the challenger the only person authorized to be placed on the ballot, and the trial court’s refusal to reopen the process for other individuals to qualify. The record shows that Haynes, the winning candidate, received 528 votes and the challenger received 371 votes. Clearly, the electorate chose Haynes over the incumbent Wells. Since there were no other contestants in the race and the time for write-ins has expired, Wells will stand elected, even though the electorate rejected her for the position. In justifying its approach, the trial court ruled that re-opening the primary would be pointless and a waste of money.
In assessing this situation and the role of voters in the democratic process, I find myself in agreement with Justice George T. Smith who was joined by Justice Hardy Gregory in their dissent in Daniel v. Barrow, 256 Ga. 318 (348 SE2d 649) (1986): “An election is either valid or invalid. Once this court found irregularities ‘sufficient to change or place in doubt the result(s)’. . . it should have ordered a new election. [Cit.] . . . This is a frustration of the free choice of the electorate, and casts a doubt over the entire primary.”
*110Decided November 1, 2000. Zimring, Smith & Billips, Matthew C. Billips, Maribeth Kijowski, for appellant. Parks, Chesin, Walbert & Miller, David F. Walbert, Donald M. Comer II, for appellee.2, Although the majority opinion says it does not reach the constitutional issue raised by appellant’s challenge to OCGA § 21-2-132 (e) because it was not ruled on by the trial court, the opinion goes on in a footnote to say that it would find the statute constitutional. In keeping with this court’s traditional approach of not addressing constitutional issues not ruled on by the trial court (Santana v. Ga. Power Co., 269 Ga. 127 (6) (498 SE2d 521) (1998)), I would not address the constitutional issue..
3. In Division 4, the majority opinion, without any citation of authority, casts on the party responding to the election challenge the burden of proving that he properly qualified to run in the election. Such an approach is contrary to the traditional principles of civil procedure. OCGA § 24-4-1. Normally, the person challenging an election has the burden of proof as to the allegations contained in the complaint. Hendry v. Smith, 270 Ga. 17 (505 SE2d 216) (1998); Walls v. Garrett, 247 Ga. 640 (1) (277 SE2d 903) (1981). Under the majority’s approach, a person could simply file a complaint contesting an election and then sit back and force the challenged person to prove entitlement to hold office.
The approach taken by the majority unnecessarily turns civil procedure on its head by misinterpreting what the trial court actually did in this case. The trial court ruled that the deposition of Haynes showed that the address at which he was registered to vote at the time he sought to qualify was not in the Fifth District of Clayton County. The presentation of that evidence by Wells met the challenger’s burden of proof as to that part of the challenge to appellant’s qualification. Notwithstanding the trial court’s ruling, the majority opinion goes even further and impermissibly shifts the burden of proof to the winning candidate. Such an approach is contrary to Georgia jurisprudence and it is contrary to reason.
For the reasons outlined above, I respectfully dissent.