Middleton v. Smith

539 S.E.2d 163, 273 Ga. 202

• Court: Supreme Court of Georgia
• Decided: November 29, 2000
• Docket: S01A0183, S01A0184
• Status: Published

Opinions

Thompson, Justice.

Finding irregularities in two contested primary contests in Long County, Georgia, the Superior Court of Long County declared the election invalid. In our view, petitioners failed to affirmatively show that the irregularities put the election results in doubt. Accordingly, we reverse.

A primary election was held in Long County on July 18, 2000. Frank Middleton received 1,289 votes for clerk of the superior court; his opponent, Charlotte Smith, received 1,172 votes. Birdie Nunnally received 308 votes for county commissioner; her opponent, Imogene Harold, received 288 votes. Smith and Harold filed petitions to contest the election. The superior court set aside the results and ordered a new election.

The superior court found these irregularities: Cecil Nobles, the Long County Sheriff, mailed approximately 1,200 letters to voters urging them to vote for Middleton and Nunnally. The letters, which were sent on stationery identifying Nobles as the sheriff and were processed by sheriff’s department personnel at a sheriff’s department sub-station, included candidate cards for Middleton and Nunnally. The sheriff used a tent to campaign for Middleton and Nunnally at the Precinct One poll. The tent was set up within 150 feet of the precinct and the sheriff used that location to hand out campaign materials to voters.

The superior court also determined that the sheriff offered to “help” a convicted felon (who performed community service at the sheriff’s department) if he would help the sheriff’s candidates. In that connection, the felon picked up campaign materials at a sheriff’s department sub-station. (The felon believed he picked up and took an absentee ballot to a voter.) Furthermore, the superior court found that the sheriff offered to “help” a voter who was facing DUI charges, and that the sheriff prepared and distributed 38 absentee ballot applications. Finally, the superior court noted that the elected offices in question work hand in hand with the sheriff’s office. In fact, the county commission controls the sheriff’s budget.

The superior court concluded that Sheriff Nobles’ conduct put in doubt the validity of all 506 votes cast at Precinct One. It set aside the results of the elections and ordered the county to hold a special election on December 5, 2000. In so doing, the superior court specifically rejected the defendants’ assertion that the petitioners failed to show the actual number of votes called into question. In that regard, the superior court observed that the sheriff was responsible for maintaining order at the polling places, OCGA § 15-16-10 (a) (3), and that, therefore, the sheriff’s conduct was “a grave threat to the integrity of the electoral process.”

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); Taggart v. Phillips, 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 v. Crawford, supra at 9, or an appearance of impropriety in the election procedures. Compare Stiles v. Earnest, 252 Ga. 260, 263 (312 SE2d 337) (1984).

Petitioners failed to carry their burden of proof by affirmatively showing that enough electors voted illegally so as to change or cast doubt on the result of the election. Hunt v. Crawford, supra; Bailey v. Colwell, supra. Their assertion, and the superior court’s conclusion, that Sheriff Nobles’ campaign activities put all of the Precinct One votes in doubt, is based on mere speculation and cannot withstand scrutiny.

In Stiles v. Earnest, supra, in a referendum to provide for the election of members of a county school board, a majority of this Court held that the election was so tainted as to cast doubt on the fairness of the entire referendum. Stiles is not apposite. There, employees of the school board “checked off” voters within 250 feet of a polling facility in violation of former OCGA § 21-2-414 (a). Thus, the employees effectively “took names” of all those who voted so accounts could be settled later if it became “necessary.” The improprieties in this case are not so egregious. Accord Hendry v. Smith, 270 Ga. 17, 18 (505 SE2d 216) (1998); Hunt v. Crawford, supra.

In passing, we point out that it is not necessary to invalidate an entire election simply because a sheriff violates his duty or abuses the powers of his office. A sheriff can be disciplined in other ways for such misconduct. See, e.g., OCGA § 15-16-10 (b) (sheriff shall be fined for a contempt if he fails to do his duty, including his duty to preserve order at polling places); OCGA § 21-2-567 (any person who intimidates an elector is guilty of a misdemeanor).

Judgments reversed.

All the Justices concur, except Benham, C. J., and Hunstein, J., who dissent.