MILLER v. HODGE

905 S.E.2d 562, 319 Ga. 543

• Court: Supreme Court of Georgia
• Decided: August 13, 2024
• Docket: S24A0490
• Status: Published

Opinion

319 Ga. 543 FINAL COPY

S24A0490. MILLER v. HODGE et al.

MCMILLIAN, Justice.

After a special election for Chatham County Commissioner,

elector Jeffry L. Miller filed a pro se petition against several

Chatham County election officials (the “County Appellees”) and

candidate Malinda Jane Scott Hodge to contest various aspects of

the election.1 No candidate received a majority of the vote, so a runoff

election was held. Following the runoff election, the trial court ruled

both that the results of the special election were valid and that

Miller’s petition was mooted by the succeeding runoff election.

Miller timely appealed to this Court, arguing that the trial court

erred in (1) determining that his claims had become moot and (2)

finding insufficient evidence to place in doubt the result of the

1 Specifically, Miller argued that Hodge was not a qualified or eligible

candidate based on residency requirements and because she was formerly a member of the Chatham County Board of Elections; that the use of a QR code on the ballot was illegal; and that the County Appellees failed to provide notice of redistricting at least 30 days in advance of the special election. special election. Based on this Court’s long-standing precedent

setting out prudential reasons for refusing to invalidate an election

where the challenger has not acted with dispatch to litigate his

election contest claims under OCGA § 21-2-520 et seq. before a

subsequent election takes place, we do not reach the merits of

Miller’s contentions, and we dismiss this appeal.

The record on appeal shows that on September 19, 2023,

Chatham County held a special election to fill the vacated seat of

District 2 for Chatham County Commissioner. The Chatham County

Board of Elections (the “BOE”) certified the results on September

25, which resulted in a runoff. On September 29, Miller filed a

“Contest Petition Under OCGA [§] 21-2-520 et[ ] al., OCGA [§] 21-2-

521, OCGA [§] 21-2-522 et[ ] seq., Contesting the Special Election of

District 2 County Commissioner” (the “Petition”), in which he

alleged that Hodge was ineligible to run and that there were failures

by election officials with regard to the form of the ballot, which

rendered the election invalid. As relief, Miller requested that Hodge

be removed from the special election ballot; that the special election

2 results be stricken and a new special election ordered; and that an

injunction issue requiring the BOE officials to follow election laws

regarding the form of the ballot.

The trial court conducted an evidentiary hearing on October

16, 2023, but did not issue a ruling. At the hearing, Miller called no

witnesses and presented no evidence, relying solely on exhibits

attached to his Petition. Miller clarified that he was seeking “to [ ]

set aside” the special election and that it “be rerun . . . on paper

ballots.” At no point during the hearing did Miller request an

expedited ruling or a stay of the imminent runoff election.2 Instead,

he asked to provide supplemental briefing, and the trial court

granted him five days to do so.

A runoff election was held on October 17, 2023, and the results

were certified on October 23. On November 9, 2023, the trial court

2 The parties agree that an initial hearing was held on October 13, 2023,

but because he was a resident of Chatham County, the judge recused himself. However, no transcript or recusal order is included in the record. The record does show that on October 16, 2023, the Administrative Judge of the First Judicial Administrative District assigned the case to a new judge who presided over the hearing held on that date. 3 entered its order dismissing Miller’s Petition, finding that Hodge

was eligible to compete in the special election and that the results of

the special election were valid. The trial court also found “in favor of

Defendants for the separate and independent reason that the

Petition and the issues raised therein [had] been rendered moot by

[the] succeeding run-off election for District 2 Chatham County

Commissioner held on October 17, 2023.” Miller then timely filed a

notice of appeal directed to this Court, citing its exclusive

jurisdiction over election contests pursuant to Ga. Const. of 1983,

Art. VI, Sec. VI, Par. II (2).3

1. We turn first to the issue of mootness.4 OCGA § 5-6-48 (b) (3)

permits the dismissal of an appeal “[w]here the questions

presented have become moot.” “An appeal becomes moot if the

3 Hodge and the County Appellees have filed separate motions to dismiss

this appeal for mootness. VOTERGA filed an amicus brief in this case on the merits but did not address the issue of mootness. 4 See Barrow v. Raffensperger, 308 Ga. 660, 666 (2) (b) (842 SE2d 884)

(2020) (“[M]ootness is an issue of jurisdiction and thus must be determined before a court addresses the merits of a claim.” (citation and punctuation omitted)); Byrd v. Goodman, 192 Ga. 466, 466-67 (1) (15 SE2d 619) (1941) (“[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (citation and punctuation omitted)). 4 rights insisted upon could not be enforced by a judicial

determination.” Randolph County v. Johnson, 282 Ga. 160, 160

(1) (646 SE2d 261) (2007) (citing Haley v. Bailey, 199 Ga. 486

(34 SE2d 685) (1945)).

We have long held that this mootness principle applies in the

election context. See, e.g., Clements v. Wilkerson, 151 Ga. 467 (107

SE 47) (1921) (where no supersedeas was obtained and the election

was duly held, an appeal from the refusal of an injunction to prevent

the holding of an election was moot); Logan v. Johnson, 247 Ga. 640,

640 (277 SE2d 913) (1981) (“Inasmuch as the general election was

held on November 4, 1980, it is too late to conduct a new primary

election. Therefore, this appeal must be dismissed as moot.”); Bell v.

Raffensperger, 311 Ga. 616, 619 (858 SE2d 48) (2021) (“To be clear:

an appeal is moot when this Court can no longer provide the specific

relief requested; election cases are no exception.”). Within the

specific context of a challenge to a candidate’s qualifications, which

we understand to be the gravamen of Miller’s challenge here, we

have consistently held that such challenges become “moot” once the

5 succeeding election at issue has occurred. See Bodkin v. Bolia, 285

Ga. 758, 759-60 (684 SE2d 241) (2009) (a challenge to the inclusion

of a candidate’s name on the ballot constitutes a pre-election

challenge rendered moot by the occurrence of the general election);

Randolph County, 282 Ga. at 160 (1); Brooks v. Brown, 282 Ga. 154,

154 (646 SE2d 265) (2007); Jordan v. Cook, 277 Ga. 155, 157 (587

SE2d 52) (2003). And, upon finding that an election challenge has

been mooted, we have dismissed the appeal. See, e.g., Hilliard v.

Baldwin, 289 Ga. 213, 214 (710 SE2d 143) (2011) (“Since an election

contest challenging the results of a primary election becomes moot

after the general election has taken place and when the plaintiff

does not quickly seek statutorily-sanctioned supersedeas and/or an

expedited appeal, the appeal is dismissed as moot.” (citations and

punctuation omitted)); City of Greenville v. Bray, 284 Ga. 641, 642

(670 SE2d 98) (2008) (dismissing appeal as moot where the

interested party failed to seek a stay of the election prior to the

general election taking place); Brooks, 282 Ga. at 154-55 (challenge

to the date of the election deemed moot by occurrence of the general

6 election); Palmer v. Conner, 247 Ga. 35, 36 (273 SE2d 612)

(1981) (“Because the general election has already taken place, it is

too late to conduct a second primary run-off and this appeal must be

dismissed as moot.”).

We have repeatedly explained that, to avoid this outcome, “the

party challenging either a primary or general election should make

every effort to dispose of election disputes with dispatch and that

the courts should not interfere with the orderly process of elections

after the general election has been held.” Jordan, 277 Ga. at 156

(citation and punctuation omitted). See also Williams v. Heard, 302

Ga. 114, 116 (1) (805 SE2d 1) (2017) (In a challenge to a primary

election that was rendered moot by a succeeding general election,

“[the challenger] could have requested an expedited hearing on her

contest petition in the trial court [or] moved to stay the general

election.”); Parham v. Stewart, 308 Ga. 170, 172 (1) (839 SE2d 605)

(2020) (explaining that, while this Court has “routinely decided

[post-]general election challenges on the merits, regardless of

whether a stay or supersedeas was requested or obtained[,] . . . it is

7 important that a party seeking review of any election contest act

with dispatch”).

In so holding, we have noted that the General Assembly “has

demonstrated that election contests are to be heard with the

greatest of expedition.” Swain v. Thompson, 281 Ga. 30, 31 (2) (635

SE2d 779) (2006) (noting, for example, OCGA § 21-2-524 (a)’s

requirement that a petition be filed within five days of the

consolidation of election returns). See also Dawkins-Haigler v.

Anderson, 301 Ga. 27, 27-28 (799 SE2d 180) (2017) (“The election

statutes that establish procedures for contesting elections are based

on an underlying policy that election-related appeals must be timely

considered.” (citation and punctuation omitted)); Plyman v. Glynn

County, 276 Ga. 426, 428 (578 SE2d 124) (2003) (explaining that the

short time period in which to contest elections “reflects the

legislature’s strong desire to avoid election uncertainty and the

confusion and prejudice which can come in its wake” and that “the

swift resolution of election contests is vital for the smooth operation

of government”). Cf. Payne v. Chatman, 267 Ga. 873, 875 (485 SE2d

8 723) (1997) (“Although the Election Code is formulated to provide

appellate courts with the authority to entertain applications for

stays and supersedeas in primary election challenges for the

purpose of protecting the interests of litigants challenging election

results, it does not guarantee that a primary election contest will be

expedited on appeal or offer a remedy where a primary election

contest has not been resolved before the general election.” (emphasis

in original)).

A review of the record in this case demonstrates that Miller

failed to utilize every available means to protect his rights and to

resolve this election contest prior to the succeeding runoff election,

such as by seeking an expedited ruling on the election contest or a

stay of the subsequent election.5 See, e.g., Williams, 302 Ga. at 116

5 Although Miller argues on appeal that the first judge assigned to this

case “indicated that if the Trial Court were to rule on behalf of [Miller] and if that were to occur after the election and if that was due to the Trial Court’s error in failing to properly assign a Judge, then both the Special Election and the Run-off Election would be invalidated,” a certified transcript of this hearing was not included in the record, and we cannot rely on Miller’s brief in this regard. See Arnold v. State, 286 Ga. 418, 420 (2) (687 SE2d 836) (2010) (documents not included in the official appellate record are not evidence that can be considered by the Court). Moreover, Miller cannot show why any such

9 (1) (explaining challenger could have requested an expedited

hearing in the trial court or moved to stay the general election);

Hilliard, 289 Ga. at 214 (noting availability of statutorily-

sanctioned supersedeas and/or an expedited appeal); Bray, 284 Ga.

at 642 (noting challenger’s failure to seek a stay of the election prior

to the general election taking place). Historically, as set forth above,

we would have dismissed this appeal as moot. See, e.g., McCreary v.

Martin, 281 Ga. 668, 670 (642 SE2d 80) (2007) (“The general election

has been held. McCreary did not timely exercise his statutory right

to seek a stay of that election or to petition this Court for expedition

in entertaining his appeal. This Court must conclude that the policy

considerations underlying the mootness doctrine apply to

this election challenge.”); Jordan, 277 Ga. at 157 (“Jordan’s reliance

on the fact that he acted within the statutory ten-day period in filing

his appeal in the superior court cannot justify his inaction in seeking

to invoke the statutory mechanism to stay the election until after

statement prevented him from moving the trial court to expedite a ruling or to stay or enjoin the imminent runoff election. 10 the appeal.”). However, we recognize that our framing of this issue

as one of mootness is not quite accurate, and we take this

opportunity to clarify our holdings in this context.

To say that a claim has become moot typically means that

intervening events have rendered the relief sought impossible or

pointless. See, e.g., Scarbrough Group v. Worley, 290 Ga. 234, 236

(719 SE2d 430) (2011) (“A case is moot when its resolution would

amount to the determination of an abstract question not arising

upon existing facts or rights, and the appellate court is not required

to retain a moot case and decide it because a party might possibly

derive some future benefit from a favorable adjudication on an

abstract question.” (citations and punctuation omitted; emphasis in

original)); Chastain v. Baker, 255 Ga. 432, 433 (339 SE2d 241) (1986)

(“This court will upon its own motion dismiss an appeal where it

affirmatively appears that a decision would be of no benefit to the

complaining party.” (citation and punctuation omitted)). Despite our

consistent usage of this term in our prior election cases, for claims

brought under OCGA § 21-2-520 et seq., the occurrence of a

11 subsequent election does not affect this Court’s authority to direct a

trial court to declare an election result invalid and to call for a new

election, so the occurrence of a subsequent election does not

necessarily “moot” issues related to a previous one. See OCGA § 21-

2-527 (d) (providing for when a primary, election, or runoff may be

invalidated and a new one ordered). And we are unaware of any legal

authority that requires us to categorize our dismissal of an election

context under such circumstances as being based on “mootness.”

Rather, the cases declaring such election contests moot appear

to be based on various prudential reasons for courts to limit their

exercise of jurisdiction and to refrain from invalidating elections

after the fact when the challenging party has not acted with

dispatch to litigate their claims before a subsequent election. For

example, this Court has carefully explained that “[t]here is a

sanctity to elections under our system of self-government, wherein

the will of the people . . . is the supreme law.” Randolph County, 282

Ga. at 160-61 (1) (citation and punctuation omitted). We have also

recognized that “[o]rdering new elections is a drastic remedy for

12 reasons that should be obvious. When elections have been held[,] . .

. the people have chosen their representatives.” City of Arcade v.

Emmons, 268 Ga. 230, 233 (2) (486 SE2d 359) (1997) (citation and

punctuation omitted). See also Jordan, 277 Ga. at 156 (“The

justification for this policy is to prevent incurring unnecessary

expenses in holding more than one election, to assure the finality of

election results, and to settle challenges to a candidate’s

qualifications prior to the time that voters exercise their

constitutional right to vote.”).

Although none of these prudential considerations remove or

otherwise diminish this Court’s authority to order new elections

when authorized to do so under OCGA § 21-2-520 et seq., they do

inform the circumstances under which this Court may choose to

impose such a drastic remedy. These principles continue to counsel

the courts in limiting the exercise of jurisdiction under these

circumstances, although we make clear that we do not apply those

13 principles on the basis of “mootness.”6 Instead, we clarify that these

considerations are prudential ones, grounded in the statutory

framework of OCGA § 21-2-520 et seq., and once again “reaffirm that

litigants in election contests have a duty to expedite resolution of

the dispute” before an election is held and that the failure to “make

every effort to dispose of election disputes with dispatch” before a

subsequent election may result in the dismissal of the case. Jordan,

277 Ga. at 155-56 (citation and punctuation omitted). Cf. Swain, 281

Ga. at 32 (2) (“While Swain’s status as a pro se litigant and his initial

efforts to correct the deficiencies in service of process evoke

sympathy for him, the public policy favoring swift resolution of

election contests . . . dictate[s] that we uphold the trial court’s

determination that . . . this case requires dismissal of Swain’s

election contest petition.”).

6 We emphasize that we are applying these prudential considerations to

Miller’s election contest claims under OCGA § 21-2-520 et seq., and that it may be proper under other circumstances for a court to determine that an election challenge is moot after a subsequent election takes place. See, e.g., Brockington v. Rhodes, 396 U.S. 41, 43 (90 SCt 206, 24 LE2d 209) (1969) (petition for writ of mandamus to compel election officials to include candidate on the ballot was moot after the election took place). 14 Hodge has now been serving as Commissioner for more than

nine months, and the delay in consideration of this appeal is

attributable to Miller’s failure to avail himself of the applicable

procedures of the Election Code, further exacerbated by Miller’s

request to submit additional briefing, delaying the trial court’s

decision. “Certainly, there are instances in which last

minute requests for extraordinary relief in election contests are

unavoidable. But, this case is not one of them.” McCreary, 281 Ga.

at 670. 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.

2. In light of our holding in Division 1, we do not reach Miller’s

remaining enumerations of error.

Appeal dismissed. All the Justices concur.

15 Decided August 13, 2024.

Elections. Chatham Superior Court. Before Judge Turner,

Senior Judge.

Jeffry L. Miller, pro se.

Oliver Maner, Benjamin M. Perkins, Wes P. Rahn; R. Jonathan

Hart, Andre Pretorius, for appellees.

Todd A. Harding, Paul C. Kunst, amici curiae.