CATOOSA COUNTY REPUBLICAN PARTY v. HENRY

906 S.E.2d 750, 319 Ga. 794

• Court: Supreme Court of Georgia
• Decided: September 17, 2024
• Docket: S24A0917
• Status: Published

Opinion

319 Ga. 794 FINAL COPY

S24A0917. CATOOSA COUNTY REPUBLICAN PARTY et al. v. HENRY et al.

PETERSON, Presiding Justice.

Elections matter. For this reason, parties wanting a court to

throw out the results of an election after it has occurred must clear

significant hurdles. And for decades, our precedent has made crystal

clear that the first such hurdle is for the parties seeking to undo an

election to have done everything within their power to have their

claims decided before the election occurred. But in this case, the

parties wanting us to throw out election results ignored this long-

standing rule, did nothing to expedite this appeal, and instead

requested delays. Accordingly, we dismiss the appeal without

reaching the merits (or lack thereof) of their claims.

The appellants, who are the Catoosa County Republican Party

(“CCRP”) and its executive officers (collectively, “the CCRP

Defendants”), tried to stop certain candidates from qualifying for the May 2024 Republican primary for certain county commission seats,

citing a statute that provides in part that “[u]nless otherwise

provided by law, all candidates for party nomination in a state or

county primary shall qualify as such candidates in accordance with

the procedural rules of their party[.]” OCGA § 21-2-153 (b). A

document introduced as an exhibit before the trial court, purporting

to be the local rules of the CCRP, provides that “[i]n order to qualify

for office as a Republican, a potential candidate must be approved

by the [CCRP] County Committee by a majority vote within twelve

(12) months prior to the date he or she attempts to qualify.” And the

document also provides that “[i]n order to qualify for office as a

Republican in Catoosa County, a potential candidate must present,

at the time of qualifying, a signed and notarized affidavit from the

[CCRP] Chairman or Secretary, stating the date and location of the

meeting that the [CCRP] County Committee voted to allow the

proposed candidate to qualify for office as a Republican.”

On March 4, 2024, Steven M. Henry, Larry C. Black, Jeffrey K.

Long, and Vanita C. Hullander (“the Candidates”) each filed a

2 separate petition against the CCRP Defendants. The Candidates

alleged that although they met the statutory requirements to qualify

as candidates for the Republican primary for various positions on

the Catoosa County Board of Commissioners, earlier that day the

CCRP’s agent had “denied” the Candidates “the right to qualify.”

The petitions sought temporary restraining orders and interlocutory

and permanent injunctions prohibiting the CCRP Defendants from

preventing their qualification as candidates. The qualifications

period began on March 4, 2024, and was set to end at noon on March

8, 2024. See OCGA § 21-2-150 (setting primary election for May 21,

2024, the Tuesday of the twenty-fourth week prior to the November

general election in an even-numbered year); OCGA § 21-2-153 (c) (1)

(A) (setting qualification for the eleventh week immediately prior to

state or county primary).

On March 5, the trial court issued temporary restraining

orders (“the TROs”) “enjoining and restraining” the CCRP

Defendants “from prohibiting the qualification of” the Candidates as

Republican candidates for the May 21 primary. On March 6, the

3 CCRP Defendants filed motions to lift the TROs and dismiss the

petitions, arguing, among other things, that the TROs and the

petitions were attempting to force the CCRP Defendants to engage

in particular speech and associate with “inauthentic Republicans” in

violation of the First Amendment. On March 7, following a hearing,

the trial court ordered the cases to be consolidated and denied the

motions to lift the restraining orders and dismiss the cases. This

order concluded that the CCRP’s rule requiring a “Qualifying

Affidavit” from the CCRP could not be enforced because (1) it was

not a “procedural rule”; (2) the CCRP’s rules were void because there

was no attestation that the rules submitted by the Candidates as an

exhibit were “the adopted rules” and they did not bear “any other

certification that would be required by OCGA § 21-2-111 (c)”; and (3)

the state Republican Party executive committee rules have no

provision regarding pre-approval of candidates for other offices, such

that the rule was not “consistent with law and the rules and

regulations of the state executive committee[.]” OCGA § 21-2-111 (c).

The trial court ordered that county sheriff’s deputies should escort

4 the Candidates to the CCRP’s “qualifying location” and “enforce” the

previous day’s order and that “a $1,000.00 fine shall be hereby

enforced per Respondent per Petitioner for each hour that

Respondents prohibit the qualification of Petitioners.” (Emphasis in

original.)

The CCRP Defendants unsuccessfully sought to appeal, the

Candidates sought contempt, and the trial court in a March 8 order

stated that the fines threatened in the March 7 order “w[ould]

continue to accrue” until the noon qualifying deadline but the court

would set another date for a hearing on the motion for contempt. In

an attempt to fashion a remedy for the Candidates, the trial court

“order[ed] that each of the Petitioners is entitled to qualify with the

Catoosa County election superintendent at their offices pursuant to

OCGA § 21-2-153 (c) (2) as if the county political party had not

provided sufficient notice and as if the three-day notice had been

provided.”1 At 2:03 p.m. on that same day, the CCRP Defendants

1 OCGA § 21-2-153 (c) (2) provides: “If a political party has not designated

at least 14 days immediately prior to the beginning of qualifying a party official

5 filed a notice of appeal to the Court of Appeals. The case docketed at

the Court of Appeals on March 28, 2024. On April 12, 2024, the

Court of Appeals transferred the case to this Court as within our

jurisdiction over “[a]ll cases of election contest.” Ga. Const. of 1983,

Art. VI, Sec. VI, Par. II (2).

We agree with the Court of Appeals that this Court, rather

than the Court of Appeals, has subject matter jurisdiction over the

CCRP Defendants’ appeal. See Ga. Const. of 1983, Art. VI, Sec. VI,

Par. II (2). But we nonetheless dismiss the appeal.

In their appeal, the CCRP Defendants ask this Court to reverse

the trial court’s ruling below — which declared that each of the

Candidates was “entitled to qualify with the Catoosa County

election superintendent” under OCGA § 21-2-153 (c) (2) — and

dismiss the Candidates’ petitions. Thus, it appears that the CCRP

in a county with whom the candidates of such party for county elective offices shall qualify, the election superintendent of the county shall qualify candidates on behalf of such party. The election superintendent shall give notice in the legal organ of the county at least three days before the beginning of qualifying giving the dates, times, and location for qualifying candidates on behalf of such political party.” 6 Defendants essentially seek a ruling that honors the CCRP

Defendants’ decision to block the Candidates’ qualification.2

Although the record provides little indication of what happened

after the trial court on March 8 ordered that the Candidates be

permitted to qualify, the CCRP Defendants’ requested relief would

appear to require upending the results of a completed primary

election as to one or more commission seats. See OCGA § 21-2-150;

OCGA § 21-2-501 (a) (1) (setting primary runoff for June 18, 2024,

the twenty-eighth day after the holding of the preceding primary).3

Given the CCRP Defendants’ failure to litigate this appeal with

2 As set forth in the March 7 and March 8 orders, the trial court stated

that certain “fines” would accrue in the event of noncompliance. But in their briefing before this Court, the CCRP Defendants make no argument specific to the fines. Moreover, the record does not contain any particular order holding any litigant in contempt or actually imposing a specific “fine.” And the record shows that the trial court indicated that it would take up the Candidates’ motion for contempt at a later hearing, which does not appear to have yet occurred. Accordingly, there appears to be nothing ripe for our review in the trial court’s threat of a particular future punishment for noncompliance with its orders. Nor does our dismissal of this appeal preclude the CCRP Defendants from pursuing through applicable procedures an appeal from any order on such an issue if the trial court chooses to enter one on remand. 3 As noted above, the notice of appeal was filed after the close of

qualifying at noon on March 8. The Candidates’ brief to this Court, filed before the primary runoff, represents that each of the Candidates “qualified with the Board of Elections by noon on March 8, 2024[,]” and that each “was either successfully nominated or advanced to a runoff election” in the primary. 7 dispatch, our long-standing precedent directs us to decline to

consider their arguments.

“[W]e have consistently held that” we will not review

challenges to a candidate’s qualifications “once the succeeding

election at issue has occurred.” See Miller v. Hodge, 319 Ga. 543,

545-546 (1) (905 SE2d 562) (2024). We repeatedly have dismissed

appeals in the context of pre-election challenges to candidates’

qualifications where the election at issue already has taken place by

the time that the appeal is disposed of, particularly where the

appellant does not exhaust avenues to have the appeal disposed of

prior to the election. See, e.g., id. at 545-549 (1) (dismissing appeal

of decision dismissing petition challenging candidate’s eligibility for

special election and raising issues with regard to ballot form, where

challenger did not seek expedition of consideration of petition or stay

of runoff and instead sought time to file supplemental briefing after

the runoff had occurred) (citing cases). Our practice in this regard

appears to be “based on various prudential reasons for courts to limit

their exercise of jurisdiction and to refrain from invalidating

8 elections after the fact when the challenging party has not acted

with dispatch to litigate their claims before a subsequent election[,]”

in particular, preventing the unnecessary expense of holding more

than one election, assuring the finality of results, and respecting the

“sanctity” of elections “wherein the will of the people . . . is the

supreme law.” Id. at 548 (1). Moreover, in holding that challengers

must make every effort to dispose of election disputes with dispatch

in order to avoid dismissal, “we have noted that the General

Assembly ‘has demonstrated that election contests are to be heard

with the greatest of expedition.’” Id. at 546 (1) (quoting Swain v.

Thompson, 281 Ga. 30, 31 (2) (635 SE2d 779) (2006), which noted,

for example, OCGA § 21-2-524 (a)’s requirement that a petition

contesting the results of a primary or election must be filed within

five days of the consolidation of election returns).

Particularly relevant here, the statutory provisions

authorizing electors’ challenges to candidate qualifications contain

short deadlines, including a two-week deadline after the end of

qualifying for filing a complaint with the superintendent and a ten-

9 day deadline for appealing to a superior court a superintendent’s

decision on such a challenge. See OCGA § 21-2-6 (b), (e). This action

is not an election contest under OCGA § 21-2-520 et seq. or a

challenge to candidate qualifications brought under OCGA § 21-2-5

or OCGA § 21-2-6. Rather, although the CCRP Defendants are

challenging the eligibility of the Candidates for office, this unusual

action was brought by the Candidates themselves. Nevertheless, the

same prudential reasons counseling dismissal in more traditional

challenges to candidate qualifications or election results apply here,

where the CCRP Defendants assert their challenge to the

Candidates’ qualifications in a defensive posture.

We previously have applied our rule requiring a challenger to

act with dispatch in the context of a qualifications challenge where

the challenger failed to exhaust opportunities to resolve the dispute

prior to a primary. See Jordan v. Cook, 277 Ga. 155, 156 n.1, 157

(587 SE2d 52) (2003) (affirming superior court’s dismissal of

challenge to candidate’s qualifications on the ground of delay where

challenger did not appeal the elections superintendent’s decision

10 until after the primary election — which also “served as the general

election” for the seat at issue — or seek a stay by the reviewing

court). Indeed, the sort of policy considerations behind our

prudential rule, identified above, apply even more strongly in the

context of an impending primary election. See Parham v. Stewart,

308 Ga. 170, 172 (1) (839 SE2d 605) (2020) (policy considerations

counseling parties and trial courts to act with dispatch to resolve

election contests “have even greater weight in primary election

challenges”).

Although the trial court worked quickly to resolve the parties’

dispute prior to the qualifying deadline, and the CCRP Defendants

quickly filed a notice of appeal, any sense of urgency apparently

ended at that point. The CCRP Defendants appealed to the wrong

court — with a notice of appeal that jumbled the questions of subject

matter jurisdiction and procedural jurisdiction — and filed nothing

in that court after the case was docketed there. Once the appeal was

transferred to this Court on April 12, at which point the election was

less than six weeks away — possibly enough time to consider the

11 merits of the CCRP Defendants’ appeal, but only if the timetable for

deciding the case were expedited — the CCRP Defendants did not

seek expedited review or emergency relief. See Supreme Court Rule

9 (“The Court may issue an order of supersedeas or other similar

orders whenever deemed necessary.”); Supreme Court Rule 26 (3)

(providing for emergency motions, which must contain “an

explanation as to why an order of this Court is necessary and why

the action requested is time-sensitive”); Supreme Court Rule 26 (4)

(providing for motions to expedite in “extraordinary circumstances

such as when the appeal would become moot absent an expedited

decision”); see also Bell v. Raffensperger, 311 Ga. 616, 618 n.3 (858

SE2d 48) (2021) (noting that “an appellant seeking to rely on the

expedited-review provision in OCGA § 21-2-172 (c) should alert the

Court that the appeal involves a decision on a nomination petition

by filing a motion for expedited appeal citing that provision”);

Whitmer v. Thurman, 241 Ga. 569, 569 (247 SE2d 104) (1978)

(noting that this Court had granted prospective candidate’s motion

to expedite his appeal of lower court’s decision that he was not

12 eligible for office “due to the necessity of a decision prior to the

primary election”).

Instead of asking this Court to move quickly, the CCRP

Defendants did the opposite. On April 30, 2024, notwithstanding

that the transfer of the case had afforded them additional time to

prepare a brief, the CCRP Defendants filed in this Court a request

for extension of time to file their principal brief, which had been due

on May 6, 2024. That request was granted, and the CCRP

Defendants filed their brief on the last day of the newly extended

period. They then agreed to have the case orally argued; the

Candidates filed a request for oral argument, representing that the

CCRP Defendants also “desire[d] to argue orally.” The oral

argument request did not seek expedited scheduling of oral

argument; indeed, it said counsel for the Candidates preferred “to

wait until after the run-off election to confirm who shall make said

oral argument.” The CCRP Defendants did not raise any objection

to such a time frame or otherwise seek to expedite oral argument.4

4 We denied the request for oral argument.

13 By the time briefing in the case was completed with the filing of the

CCRP Defendants’ reply brief on June 20, the primary election,

including a runoff, already had occurred.

Our precedent required the CCRP Defendants to do all they

could to ensure that their claims were resolved before the primary

election occurred. But they chose delay instead. “Under these

circumstances, the prudential concerns recognized by this Court, as

informed by the relevant statutory framework, when considering

similar dilatory election challenges counsel us to dismiss this

appeal.” Miller, 319 Ga. at 549 (1).

Appeal dismissed. All the Justices concur.

BETHEL, Justice, concurring.

I join the Court’s opinion in full. I write separately to highlight

an important issue raised by but not reached in the case at hand

that, I expect, this Court sooner or later will be called on to resolve,

namely, whether under OCGA § 21-2-153 (b) county-level party

organizations, like the Catoosa County Republican Party (“CCRP”),

14 are empowered to promulgate procedural rules5 for the qualification

of candidates in primary elections.

Under Georgia law, “all candidates for party nomination in a

state or county primary shall qualify as such candidates in

accordance with the procedural rules of their party[.]” OCGA § 21-2-

153 (b) (emphasis supplied). The trial court here found that the

Candidates had complied with the mandates of OCGA § 21-2-153,

which establishes requirements and procedures for qualifying as a

candidate for a party nomination in a state or county primary, and,

thus, were entitled to qualify as candidates for the Republican

primary in Catoosa County. But on appeal, the CCRP Defendants

argue that this finding was erroneous because the Candidates failed

to obtain a “qualifying affidavit.” The affidavit requirement invoked

by the CCRP Defendants stems from a rule promulgated not by the

state Republican party but by the CCRP. Thus, implicit in the CCRP

Defendants’ argument is the notion that “party,” as the term is used

5 I express no opinion regarding the question of whether the CCRP rules

at issue in this case are procedural. 15 in OCGA § 21-2-153 (b), encompasses not only state-level party

organizations but county-level party organizations as well.

It seems likely to me that “party” is inclusive of party

organizations that have secured ballot access privileges under

Georgia law, such as the Georgia Republican Party (“GRP”) and the

Democratic Party of Georgia (“DPG”). It is not at all clear to me,

however — and the CCRP Defendants have not meaningfully

grappled with the issue — that the “party” referenced in OCGA § 21-

2-153 (b) extends beyond such entities to county-level party

organizations like the CCRP.6 Of course, I cannot and do not express

any opinion about the proper reach of “party,” as that term is used

in OCGA § 21-2-153 (b), as it is unnecessary to the resolution of this

case. Rather, I flag the question for more serious consideration if and

when the theory espoused by the CCRP Defendants returns to this

6 Indeed, the trial court seems to have had similar questions about the

authority of the CCRP when, citing OCGA § 21-2-111 (c), it noted in its March 7, 2024 order that the CCRP “rules are not ‘consistent with the law and the rules and regulations of the state executive committee’ of the Georgia Republican Party because the state executive committee rules have no provision regarding pre-approval of candidates for other offices.” 16 Court. And in the event such a case comes before this Court, I hope

that the Solicitor-General, the DPG, the GRP, and any other

interested parties will weigh in as amicus curiae on this important

issue.

Decided September 17, 2024.

Election. Catoosa Superior Court. Before Judge Thompson.

Oles Law Group, David E. Oles; Bernard & Johnson, Catherine

S. Bernard, Jordan A. Johnson, for appellants.

Bryan P. Tyson; Farrar & Corbin, Archibald A. Farrar, Jr.,

Catherine F. Jackson; Alan C. Norton; Lawrence A. Stagg, for

appellees.

Small Herrin, Brent W. Herrin; Susan P. Opraseuth, Sarah E.

Thompson, amici curiae.