Mead v. Sheffield

CARLEY, Justice.

The facts in this case are undisputed. After a recount of the votes cast in the statewide election held on July 20, 2004 to select a successor to Judge Frank Eldridge on the Court of Appeals of Georgia, Mike Sheffield ran second with 207,473 votes and Howard Mead finished third with 207,091 votes. Thus, by a 382-vote margin, Sheffield won the right to participate in a run-off election with Debra Bernes, who was the top vote-getter by over 100,000 votes. However, Mead filed suit, alleging that the number of illegal absentee ballots cast in Laurens County was sufficient to render the outcome of the election in doubt. In that county, some 481 absentee ballots containing the incorrect name “Thomas Mead,” rather than the correct name “Howard Mead,” were returned and counted. Of that number, 314 *269contained votes in the Court of Appeals race, with 71 cast for “Thomas Mead,” 58 for Sheffield, and the remaining 243 split among the other candidates.

The trial court found against Mead’s claim, focusing on the 314 ballots which contained votes for candidates in the contested Court of Appeals race. According to its analysis, if Mead is credited with 71 votes, then the remaining 243 votes would not be sufficient to meet the 382-vote threshold for questioning the outcome of the election. Mead filed a notice of appeal, and this Court issued a stay of the election pending resolution of the appeal.

OCGA § 21-2-284 (c) provides, in relevant part, that “the names of all candidates who have qualified . . . shall be printed on the ballots . . . .” “Shall” is generally construed as a word of command. O’Donnell v. Durham, 275 Ga. 860, 861 (3) (573 SE2d 23) (2002). Although he was a qualified candidate, the name of “Howard Mead” did not appear on the disputed Laurens County absentee ballots. Instead, the name of “Thomas Mead” appeared thereon.

The word “name” “ ‘has been defined as the word or combination of words by which a person is distinguished from other individuals’ and ‘consists, in law, of a given . . . name, and a family surname .... The ... [given] name ... has been used from early times to distinguish a particular individual from his fellows .... Consequently, it has always been considered an essential part of a person’s name . . . .’ [Cits.]” [Cit.]

Maye v. Pundt, 267 Ga. 243, 245 (1) (477 SE2d 119) (1996).

As a matter of law, therefore, the 481 Laurens County absentee ballots did not comply with the mandate of OCGA § 21-2-284 (c). The names of all of the qualified candidates in the contested Court of Appeals race were not listed on those ballots, since the name of “Howard Mead” did not appear.

[Nothing] could possibly constitute a more vitally essential element in any election than the contents of the official ballot furnished to the voters [.] If a legal ballot was supplied by the duly constituted authority omitting the name of [an individual], but thereafter by reason of the action on his part a ballot prohibited by law containing his name was substituted, his action in doing so was illegal; and this being true, ... the ballot itself, insofar as this candidate was concerned, [was] inherently and essentially illegalf.]

Alexander v. Ryan, 202 Ga. 578, 582 (3) (43 SE2d 654) (1947). Thus, adding an unauthorized name to a ballot makes it illegal. Likewise, *270where, as here, the voters are supplied with a ballot which omits the name of a qualified candidate, then the ballot itself is illegal as to that race. See Howell v. Fears, 275 Ga. 627 (571 SE2d 392) (2002) (primary results invalid where ballot in one precinct omitted names of both qualified candidates).

Notwithstanding the illegality of the Laurens County absentee ballots, the trial court relied upon the principle that the plaintiff in an election contest “ ‘must show that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt on the election....’” (Emphasis in original.) Taggart v. Phillips, 242 Ga. 484, 487 (249 SE2d 268) (1978). Because the number of absentee ballots containing actual votes in the contested Court of Appeals race was only 314, which is fewer than Sheffield’s statewide margin of victory, this election contest was found to be without merit.

The trial court erred in relying upon this principle because it is inapplicable, since this case is not an election contest involving electors who voted illegally or legal votes which were irregularly recorded. Compare Middleton v. Smith, 273 Ga. 202 (539 SE2d 163) (2000) (irregularities in conduct of election); Bailey v. Colwell, 263 Ga. 111 (428 SE2d 570) (1993) (improperly cast, not illegal, ballots); Taggart v. Phillips, supra (illegal voters, not illegal ballot); Miller v. Kilpatrick, 140 Ga. App. 193 (230 SE2d 328) (1976) (illegal voters, not illegal ballot). Instead, Mead’s contention is based upon the irregularity of the absentee ballots and the illegality of those that were returned and counted. Grounds for contesting an election include “irregularity by any primary or election official or officials sufficient to change or place in doubt the result” and the receipt of “illegal votes ... at the polls sufficient to change or place in doubt the result.” OCGA§ 21-2-522 (1), (3). Thus, rather than illegal voters or irregular recording, the issues here are the preparation of an irregular ballot and the receipt of illegal votes. The irregularity occurred when election officials issued absentee ballots that failed to contain Mead’s name. The evidence shows that 481 of the irregularly prepared absentee ballots were returned in Laurens County. Since 481 is greater than Sheffield’s margin of victory, the dispositive factor is the illegality of the total number of absentee ballots that were returned, not the limited number of those ballots which contained votes in the contested Court of Appeals race. “Where the omission is of an essential prerequisite to the holding of a valid election, such as . . . the contents of the ballot itself, the election is, of course, invalid. [Cits.]” State of Ga. v. Carswell, 78 Ga. App. 84, 88 (2) (50 SE2d 621) (1948), statutorily superceded on other grounds, Maye v. Pundt, supra at 246 (2), fn. 13. The electors who received the irregular ballots did not cast illegal votes. As qualified electors they cast legal votes on an irregular *271ballot. However, because the irregularity relates to the list of qualified candidates from whom the electors were selecting, the

ballots were prohibited by law and were therefore inherently illegal, and their distribution to the voters was unauthorized, and if the ballots being voted as furnished and under a misapprehension of their validity did not operate to validate them, they should unquestionably be discarded.

Alexander v. Ryan, supra at 583 (3).

The fallacy in the trial court’s analysis is demonstrated by the impossibility of determining how the 481 electors would have voted had they been supplied with proper ballots. Any number of the 243 who voted for other candidates may have voted for “Howard Mead” if that name appeared. It is possible that some of the 167 who did not vote in the contested race intended to vote for “Howard Mead” and chose not to vote for anyone when that name did not appear on the ballot. It may even be that some or all of the 71 who voted for “Thomas Mead” would not have voted for “Howard Mead.” It is precisely for this reason that we have held that the focus in an election contest involving illegal ballots is on whether they “exceeded ... the margin of victory.” Howell v. Fears, supra at 628. Thus,

[i]t was not incumbent upon [Mead] to show how the [481] voters would have voted if their [absentee] ballots had been regular. He only had to show that there were enough irregular ballots to place in doubt the result. He succeeded in that task.

(Footnote omitted.) Howell v. Fears, supra at 628.

Admittedly, Fears does contain the “in the contest being challenged” language that appears in election contest cases involving illegal voters or the irregular recording of legal votes. Nevertheless, we certainly did not apply that principle there in the same literal fashion as the trial court did here. Had we done so, we simply would have held that no new election was necessary, because the 43 illegal ballots in Fears were not cast in the contested House race. Instead, this Court clearly recognized that, in an illegal ballot case, the comparison must be between the number of such ballots and the margin of victory. In Fears, 43 electors were denied their right to vote because of the illegality of the ballot, and a new election was ordered. In Laurens County, 481 voters were disenfranchised because they were given an absentee ballot which did not contain the names of all of those qualified candidates seeking to fill a seat on the Court of Appeals. The only relevancy of the 314 votes cast in the Court of *272Appeals race is to reduce the total number of votes for each candidate, since they appear on illegal ballots and, therefore, are invalid votes.

[T]he voter was entitled to understand that the ballot was legal as presented, and in thus voting it he acted upon a mistaken assumption, and this is enough to vitiate such ballots .... Nothing could possibly be more important than the sanctity of the ballot. It transcends in gravity far beyond any question as to who in any given case might be entitled to a particular office.

Alexander v. Ryan, supra at 583 (3). When 58 illegal votes are deducted from Sheffield’s total of 207,473, the result is 207,415. Reducing Mead’s total of 207,091 by 71 illegal votes leaves a balance of 207,020. The difference is a 395-vote lead for Sheffield. 481 is greater than 395. Therefore, we “have no hesitation in concluding that [Mead] satisfied [his] burden. After all, the number of irregular [absentee] ballots cast in [Laurens] County[ ] . . . exceeded [Sheffield’s] margin of victory.” Howell v. Fears, supra at 628.

The dissent states that the record shows that Mead was not prejudiced “by the misnomer.” Dissent, p. 278. In support of that assertion, it compares the percentage of votes that Mead actually received statewide and in Laurens County with that which “Thomas Mead” received on the disputed absentee ballots. However, such a comparison is irrelevant. In this case, the only material comparison is between the actual number of Laurens County absentee ballots cast which failed to contain Mead’s name and the number of votes by which Sheffield holds a lead over him. Under controlling authority, in order for Mead to prevail, the only prejudice that he was required to show was that the number of irregular ballots was sufficient to cast doubt upon the result of the election, and he has so shown. Howell v. Fears, supra at 628.

Moreover, the trial court did not, as the dissent indicates, term the ballots’ irregularity a “misnomer.” Dissent, p. 276. Instead, the trial court’s order stated that the ballots bore Mead’s “wrong first name.” If the ballots had any name other than “Howard Mead,” then they omitted the name of one of the qualified candidates for the office. See Maye v. Pundt, supra at 245 (1). The law of this state draws a distinction between a ballot which contains a mere misnomer or an irregularity as to form, and one which fails to provide the electorate with a choice between all of those candidates who have duly qualified to have their names appear thereon. Accordingly, the dissent erroneously relies on the trial court’s expression of doubt as to the effect of *273the ballots’ irregularity, because such ballots are deemed illegal in Georgia as a matter of law. See Alexander v. Ryan, supra. See also Howell v. Fears, supra.

The dissent mistakenly states that, “under the majority’s rationale, any omission, or even a misspelling of a name, would render a ballot illegal and require a new election if the number of ballots cast generally exceed the margin of victory.” Dissent, p. 279. To the contrary, our holding today is exceedingly narrow. In the limited circumstance where a ballot omits the name of a qualified candidate, it is illegal and, if the number of those ballots exceeds the margin of victory, then that illegality requires that a new election be held so as to provide the voters with an opportunity to select from a complete slate of contenders for the position. This holding is neither a departure from nor an extension of Georgia election law. Howell v. Fears, supra; Alexander v. Ryan, supra.

The courts should be extremely hesitant to interfere with the electoral process. Mindful of that fact, we did not lightly decide to grant the stay of the contested Court of Appeals election. Having granted that stay only because of serious doubt as to the validity of the absentee ballots which failed to list all of the qualified candidates for the office, it is now incumbent upon us to resolve this election contest correctly for the benefit of the electorate of this state. For the reasons discussed, the trial court erred, because the 481 illegal absentee ballots in Laurens County exceed Sheffield’s statewide lead over Mead and, as a consequence, the result of the election has been cast in doubt. Remaining reasons asserted as bases for affirming the trial court, including Mead’s waiver of the ballots’ illegality and the receipt by 105 of the absentee voters of oral notification of the absence of a qualified candidate’s name, have been considered and found to be without merit.

OCGA § 21-2-527 (d) provides that,

[w]henever the court trying a contest shall determine that the ... election ... is so defective as to the ... office ... as to place in doubt the result of the entire . . . election, . . . such court shall declare the... election... to be invalid with regard to such ... office ... and shall call for a second... election... to be conducted among all of the same candidates who participated in the ... election ... to fill such ... office which was declared invalid and shall set the date for such second... election....

Thus, the proper disposition of this appeal is a reversal of the judgment and a remand of the case to the trial court with direction that, in accordance with OCGA § 21-2-527 (d), it enter an order *274requiring that a new statewide election be held to fill the seat on the Court of Appeals. Howell v. Fears, supra. In carrying out that direction, the trial court should act expeditiously in determining the specifics of how and when the new election should be held, giving consideration to such factors as the possible withdrawal of candidates and the duties imposed upon the Secretary of State in the implementation of the election process.

Judgment reversed and case remanded with direction.

Fletcher, C. J., and Hines, J., concur. Hunstein, J., concurs specially. Benham and Thompson, JJ., and Judge Neal W. Dickert dissent. Sears, P. J., not participating.