dissenting.
It has not been shown that the number of irregular ballots cast in this election contest exceeded the vote margin separating Sheffield and Mead. Accordingly, I respectfully dissent.
In this election case, six candidates6 sought an open seat on the Court of Appeals of Georgia. After a non-partisan primary was held on July 20, 2004, it appeared that no candidate received more than 45 percent of the vote, and that the frontrunner, Debra Bernes, would face the second place finisher, Mike Sheffield, in a runoff election to be held on August 10, 2004. See OCGA § 21-2-501 (b). A recount yielded the same result. See OCGA § 21-2-495. Thereafter, the candidate who received the third highest number of votes, Howard Mead, filed suit to set aside the election results pursuant to OCGA § 21-2-522, on the ground that a number of official absentee ballots in Laurens County were issued improperly with the name “Thomas Mead,” and that the irregularity was sufficient to place in doubt the result of the primary election.
It was established in an evidentiary hearing that, statewide, Sheffield received 382 more votes than Mead, and that 529 absentee ballots with the misnomer “Thomas” Mead were issued to voters in Laurens County. Of those, 481 were cast generally, and 314 were voted in the Court of Appeals race. “Thomas” Mead received 71 of the votes cast.
The trial court determined Mead failed to show that the number of defective absentee ballots exceeded the margin of votes between Sheffield and Mead. I would affirm that judgment.
We must presume that the results of an election contest are valid. Streeter v. Paschal, 267 Ga. 207, 208 (476 SE2d 759) (1996). Thus, an election will not be invalidated unless the party contesting the election demonstrates an irregularity or illegality sufficient to change or place in doubt the result. Id.; Bailey v. Colwell, 263 Ga. 111 (428 SE2d 570) (1993). To carry that burden, the challenger must show a specific number of illegal or irregular ballots — and that number must be sufficient to cast doubt on the result of the election. McCranie v. Mullis, 267 Ga. 416 (478 SE2d 377) (1996). Accord Hunt v. Crawford, 270 Ga. 7 (507 SE2d 723) (1998). Accord Taggart v. *277Phillips, 242 Ga. 454 (249 SE2d 245) (1978). It is not sufficient to show irregularities which simply erode confidence in the outcome of the election. Elections cannot be overturned on the basis of mere speculation, Hunt, supra at 9, or an appearance of impropriety in the election procedures. Compare Stiles v. Earnest, 252 Ga. 260, 263 (312 SE2d 337) (1984).
Middleton v. Smith, 273 Ga. 202, 203 (539 SE2d 163) (2000).
In Howell v. Fears, 275 Ga. 627 (571 SE2d 392) (2002), 2,660 voters in three counties cast ballots in a race to determine the Democratic nominee for State Representative in House District 92. Howell and Fears were the only candidates in that race and Howell defeated Fears by a margin of 34 votes. When it was discovered that 43 registered voters in Precinct 9 of Spalding County cast ballots which made no mention of the House District 92 race, Fears contested the election results. The superior court invalidated the election and Howell appealed. Citing Taggart v. Phillips, supra, and Miller v. Kilpatrick, 140 Ga. App. 193 (230 SE2d 328) (1976), this Court held that in order to prevail in an election contest, “the contestor must affirmatively show that a sufficient number of voters voted illegally or were irregularly recorded in the contest being challenged to make a difference or cast doubt on the outcome.” (Emphasis supplied.) Howell, supra at 627-628. Because Fears demonstrated that the number of irregular ballots cast in Precinct 9 exceeded the margin of victory, we affirmed the judgment of the superior court. Our decision flowed naturally from Taggart v. Phillips, supra, in which this Court observed:
[T]o cast doubt on an election it is only necessary to show (1) that electors voted in the particular contest being challenged and (2) a sufficient number of them were not qualified to vote so as to cast doubt on the election. [Cit.] ... Appellant 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. It is not for whom they voted but that they voted in this “race” illegally or the votes were irregularly recorded.
Id. at 455. Accord Taggart v. Phillips, 242 Ga. 484 (249 SE2d 268) (1978).
Similarly, in Bailey v. Colwell, supra, Bailey and Colwell were candidates in the general election for the Seventh District House of Representatives seat. Colwell won the election by 101 votes and Bailey contested the result. The evidence demonstrated that 131 *278absentee ballots were not properly cast in the general election, and that 409 electors did not vote for either candidate. Nevertheless, the superior court ruled for Colwell because Bailey failed to cast doubt on the outcome of the particular race in question. Looking to Taggart v. Phillips, 242 Ga. 454, supra, we affirmed, holding that “while [Bailey] established that 131 absentee ballots were not properly cast, he did not establish that any of the improper absentee ballots were cast in the Bailey-Colwell race.” Bailey, supra at 112.
Thus, we have consistently held that we must look to the votes cast in the particular contest being challenged to determine whether the results of that race are in doubt. See, e.g., McCranie v. Mullis, 267 Ga. 416 (478 SE2d 377) (1996). Because the number of votes cast in the Court of Appeals race (314) is less than the margin of votes between Sheffield and Mead (382), I believe our precedent demands that the election be upheld. By looking to the number of irregular ballots cast generally, instead of the ballots voted in the Court of Appeals race, the majority departs from this precedent.
The majority justifies its departure from precedent because the name “Howard Mead” did not appear on the absentee ballots. In this regard, the majority concludes that the misnomer — “Thomas Mead” — rendered the ballots a nullity. The problem with the majority’s conclusion is two-fold. First, the record contains no evidence that Mead was prejudiced by the misnomer.7 Second, it flies in the face of the superior court’s determination that “it is doubtful this [misnomer] would have changed or placed in doubt the outcome.” See in this connection Thacker v. Morris, 196 Ga. 167, 174 (26 SE2d 329) (1943) (“while it might have been better to follow the statute in the submission of the question to the voters, it is not considered that the form in which it was submitted was so confusing as to mislead the voters or to cause them to cast their votes contrary to their intention”).
When considering a petition alleging a violation in the form of the ballot, “a vital consideration guiding the courts in determining whether an election should be voided is the reluctance to reach a decision which would result in the disenfranchisement of the voters. Indeed, as regards defects in ballots, the courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair and open choice.” [Cit.]*279Decided September 2, 2004. Marc B. Hershovitz, Charles W. Byrd, for appellant. Nancy I. Jordan, King & Spalding, Michael C. Russ, John S. Darden, Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Wasson, Sours & Harris, John D. Sours, Andrea L. May, Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, for appellees. W. Ashley Hawkins, pro se. Thomas C. Rawlings, pro se. Lee Tarte Wallace, pro se.
Fladell v. Palm Beach County Canvassing Board, 772 S2d 1240, 1242 (Fla. 2000). Without sufficient evidence, and a proper determination by the superior court, that the absentee ballots in this case were so defective as to cast doubt on the Court of Appeals race, this Court should not interfere with the results rendered in that contest.
The majority professes to have rendered an opinion which is “exceedingly narrow.” But under the majority’s rationale, any omission, or even 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. This goes too far because it deprives a reviewing court of the discretion to evaluate whether a ballot is so defective as to place the results of the election in doubt. Therefore, I respectfully dissent.
I am authorized to state that Justice Benham and Judge Neal W. Dickert join in this dissent.
The candidates were Debra Bernes, William Ashley Hawkins, Howard Mead, Thomas C. Rawlings, Mike Sheffield, and Lee Elizabeth Tarte Wallace.
In fact, the evidence is otherwise. The record reveals that Mead was credited with 22.6 percent of the “Thomas Mead” absentee ballots cast in Laurens County, and that he received 22.6 percent of the “Howard Mead” ballots cast at Laurens County polling places. It also shows that Mead received 19.8 percent of all ballots cast statewide.