dissenting.
I respectfully disagree with the majority opinion’s decision to affirm the trial court’s award of OCGA § 9-15-14 (a) attorney fees in this contested judicial election. At the petition hearing, Davis presented evidence that an irregularity had occurred when the county election officials failed to adhere to OCGA § 21-2-493 (j). That statute specifically requires the superintendent of elections to add each absentee ballot to the election return of the elector’s precinct. In this case, Davis argued to the trial court that she believed that election officials failed to comply with OCGA § 21-2-493 (j) when they failed to report absentee ballots in the precinct of the elector. When Davis cross-examined the election official, the election official confirmed that absentee ballots were reported in an artificial absentee precinct rather than reported in the precinct of the elector as indicated by statute.5
Coupled with her concerns about compliance with OCGA § 21-2-493 (j), Davis, who is an African-American female, raised concerns about the impact of the county’s actions on African-American voters. Anecdotally, a large number of people who voted early in the November 2008 election cycle were African-American and, therefore, cast absentee ballots. Due to the election officials’ failure to report the absentee votes in the electors’ actual precincts, Davis opined that it was difficult to determine whether any disparities had occurred for minorities who cast their ballots early.
Although Davis’s initial petition was based generally on OCGA § 21-2-522 (5), which provides a candidate can contest the election for “any other cause,” Davis was entitled to contest the election under OCGA § 21-2-522 (1) for an “irregularity by any *588primary or election official or officials sufficient to change or place doubt in the result.” OCGA § 21-2-522 (emphasis supplied). The fact that Davis did not raise the irregularity issue in her petition upon filing was not necessarily a bar to moving forward with her petition on an amended basis (see OCGA § 21-2-524 (g)). Because Davis raised the issue at the hearing and because the trial court actually considered and analyzed the effect of any alleged irregularity in its dismissal order, I cannot agree with the majority’s conclusion that Davis failed to present any justiciable issue warranting the award of attorney fees.
In Ellis v. Johnson, 263 Ga. 514 (2) (435 SE2d 923) (1993), which the trial court relied upon to dismiss Davis’s petition, this Court reversed the award of attorney fees imposed on the non-prevailing contestant because the contestant raised a statutory interpretation issue that had not previously been analyzed by any court. Likewise, there appear to be no cases interpreting how a county meets the requirements of OCGA § 21-2-493 (j) or any investigation of how the county’s election practices may impact minority voters. Inasmuch as Davis called upon the trial court to determine whether the county complied with OCGA § 21-2-493 (j) and the effect of any noncompliance, there was a valid justiciable issue in play. Id.
As far as I am aware, this Court has never approved an award of OCGA § 9-15-14 attorney fees in a judicial election contest and I see no reason to do so today. First, the statutory scheme for election contests already contemplates the allocation of costs when one party prevails over the other (see OCGA § 21-2-529) and I believe that provision is sufficient to deter any untoward abuse by contestants in election cases without this Court opening up the imposition of attorney fees under OCGA § 9-15-14. More important, this decision is a marked departure from our previous election contest decisions in which we have unequivocally decided not to impose attorney fees. See Kendall v. Delaney, 283 Ga. 34 (656 SE2d 812) (2008) (board of education election contest); Ellis v. Johnson, supra, 263 Ga. at 516 (county election contest for sheriff and board of education). Since we did not impose attorney fees in the non-judicial municipal elections in Kendall and Ellis, supra, we should not impose them for the first time in a properly contested judicial election.
Today’s decision will have a significant chilling effect in ways I am sure the majority does not intend. It has only been in the last quarter of a century in which a significant number of minorities and females have been able to obtain positions in the judiciary by appointment or election. Indeed, it was just a little over 25 years ago that I became the first African-American judge appointed to an appellate court in this state. I know firsthand the rigors of running *589for elected office and so I feel strongly that imposing attorney fees in such contests will dissuade qualified and capable persons from running for office in the first place, particularly if they would be challenging a sitting judge. Such a harsh and unnecessary sanction will also stifle any valid post-election challenges to voting irregularities which unfairly impact contestants and citizens. Instead of imparting decisions that discourage citizens from becoming active in public life, especially as judges, we must encourage these pursuits.
Decided March 1, 2010. Joan P. Davis, for appellant. Haynie, Litchfield & Crane, Douglas R. Haynie, Gregg E. Litchfield, Daniel W. White, for appellee.Accordingly, I would reverse the trial court’s award of attorney fees.
I am authorized to state that Chief Justice Hunstein joins in this dissent.
The following colloquy transpired between Davis and the county election official on cross-examination:
Q. On page 88 for Davis and [her opponent], the 51,223 people who voted absentee, are those results reported back to the individual precincts?
A. No. They are reported in the absentee precinct.
Q. Well, if we indicate that the precincts are where they live, which one is that one?
A. Absentee is set up, for reporting purposes, as a separate precinct. Those are our directions from the Secretary of State’s Office.
Q. I just want to make sure I understand. The people who are voting absentee, their votes are not sent back to their individual precincts; they are put into an absentee precinct?
A. Right.