310 Ga. 266 FINAL COPY
S21A0030. RHODEN et al. v. ATHENS-CLARKE COUNTY BOARD OF ELECTIONS et al.
BETHEL, Justice.
Jerry NeSmith earned the support of a sufficient number of his
community members to be elected as their district’s commissioner
for the Athens-Clarke County Unified Government. Sadly, NeSmith
died just three days before Election Day. In addition to the personal
loss of his family and friends, NeSmith’s death before Election Day
ultimately resulted in an electoral loss for his supporters, a number
of whom joined to bring suit in superior court challenging the results
of the election.
Because the applicable Georgia statutes dictate that votes cast
on paper ballots for a candidate who has died before Election Day
are void, none of the votes cast for NeSmith had legal effect.
Accordingly, for reasons more fully explained below, we determine
that the Athens-Clarke County Board of Elections properly applied OCGA §§ 21-2-437 (d) and 21-2-438 (a) when it voided the votes cast
for NeSmith and declared Jesse Houle the commissioner-elect for
Athens-Clarke County Commission District 6. Moreover, we also
hold that the Board’s application of those statutes in this case did
not violate any rights of the appellants under the First or
Fourteenth Amendment to the United States Constitution or the
Equal Protection Clause of the Georgia Constitution. Accordingly,
we affirm the order of the superior court dismissing the appellants’
election challenge.
1. Factual background and procedural history.
Jerry NeSmith and Jesse Houle qualified as candidates for the
non-partisan election for Athens-Clarke County Commission
District 6, which was held on June 9, 2020. NeSmith died on the
evening of June 6. The election proceeded, and 3,271 ballots were
cast in the race for the District 6 seat. Of those ballots, 1,866 were
marked for NeSmith, and 1,405 were marked for Houle. The Athens-
Clarke County Board of Elections ruled that, pursuant to OCGA §§
21-2-437 (d) and 21-2-438 (a) and this Court’s decision in Jones v.
2 Norris, 262 Ga. 468 (421 SE2d 706) (1992), all votes cast for
NeSmith were void because he was deceased. On June 19, 2020, the
Board certified the results of the election and declared Houle the
winner of the District 6 election.
The appellants — Gordon Rhoden, Farol NeSmith, Rock Dunn,
Jim Scanlon, and Judith Scanlon — are all registered voters who
reside in District 6. On June 23, 2020, they filed a petition pursuant
to OCGA § 21-2-521 et seq., challenging the results of the election
on several grounds. The Board and Houle answered on July 10,
2020, and the superior court held a hearing on July 23, 2020.
At that hearing, the appellants called Charlotte Sosebee, the
Director of Elections for Athens-Clarke County, to testify. On direct
examination, she testified that ballots cast in person were cast
“electronically” utilizing a “ballot marking device” and that
provisional and absentee ballots were cast through the use of paper
ballots.
On cross-examination, Director Sosebee elaborated that, under
the voting system in place for the June 9 election, when a voter came
3 to a polling location to vote in person, the voter was issued an
electronic access card that was programmed with the offices and
candidates for which that voter was qualified to vote based on the
voter’s address. After receiving the ballot access card, the voter
inserted the card into an electronic ballot marking device. The
device’s screen then displayed the information from the access card
showing the offices and candidates for which the voter was eligible
to cast a vote. The voter then made selections for any or all of the
displayed elections through use of the electronic ballot marking
device and was then able to view all selections on a final summary
screen. Once the voter’s choices were confirmed on the screen, the
voter’s ballot was printed onto a paper form showing the selections
made by the voter, and the voter had an additional opportunity to
view and confirm or modify the selections for each office. The paper
ballot was then inserted into an electronic tabulating device that
scanned the paper ballot, counted the votes cast for each candidate,
and recorded the votes in a central database. The paper ballot
remained inside the device until collected by a poll manager who
4 then sealed the paper ballots. The paper ballots were then to remain
sealed until opened by the Board of Elections if the need arose, such
as the need to conduct a recount. Director Sosebee testified that,
even though an electronic ballot marking device and an optical
scanner were utilized in the election, the ballots cast in this process
were “paper ballots.”
On July 27, 2020, the superior court entered an order denying
the appellants’ requested relief and dismissing their petition. In that
order, the superior court found that the election had been conducted
with paper ballots with the assistance of an optical scanning voting
system and electronic ballot marking devices, noting that these were
simply “alternate systems for marking or employing paper ballots.”
The superior court thus determined that, under Jones, OCGA §§ 21-
2-437 (d) and 21-2-438 (a) applied to this election and that the Board
was correct in its assessment that the votes cast for NeSmith were
void due to his death. The superior court also rejected a number of
constitutional arguments raised by the appellants, including that
their rights to vote, to have their votes counted, to equal protection,
5 and to freedom of association had been violated by the Board’s
decision. The superior court also rejected the appellants’ argument
that the Board’s decision was arbitrary and capricious in violation
of their rights to due process.
The following day, the appellants filed a notice of appeal
directed to this Court. The parties submitted briefs on an expedited
basis, as ordered by this Court. We now consider, in turn, each of the
claims raised by the appellants.
2. Application of OCGA §§ 21-2-437 (d) and 21-2-438 (a) to votes cast for NeSmith.
Ordinarily, the candidate who receives the most votes in an
election wins or at least advances to a runoff against the person
receiving the second highest number of votes. See OCGA § 21-2-501
6 (a) (1).1 However, the relevant portions of OCGA §§ 21-2-437 (d)2 and
1 That Code section provides, in relevant part:
Except as otherwise provided in this Code section, no candidate shall be nominated for public office in any primary or special primary or elected to public office in any election or special election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office. In instances where no candidate receives a majority of the votes cast, a run-off primary, special primary runoff, run-off election, or special election runoff between the candidates receiving the two highest numbers of votes shall be held. . . .
2 OCGA § 21-2-437 (d) provides:
Any ballot marked so as to identify the voter shall be void and not counted, except a ballot cast by a challenged elector whose name appears on the electors list; such challenged vote shall be counted as prima facie valid but may be voided in the event of an election contest. Any ballot marked by anything but pen or pencil shall be void and not counted. Any erasure, mutilation, or defect in the vote for any candidate shall render void the vote for such candidate but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked. If an elector shall mark his or her ballot for more persons for any nomination or office than there are candidates to be voted for such nomination or office, or if, for any reason, it may be impossible to determine his or her choice for any nomination or office, his or her ballot shall not be counted for such nomination or office; but the ballot shall be counted for all nominations or offices for which it is properly marked. Unmarked ballots or ballots improperly or defectively marked so that the whole ballot is void shall be set aside and shall be preserved with other ballots. In primaries, votes cast for candidates who have died, withdrawn, or been disqualified shall be void and shall not be counted. In elections, votes for candidates who have died or been disqualified shall be void and shall not be counted.
7 21-2-438 (a)3 provide that “[i]n elections, votes for candidates who
have died or been disqualified shall be void and shall not be
counted.” The Board of Elections applied this straightforward rule
in this case to void all of the ballots marked for NeSmith who, due
to his death, was no longer eligible to serve in the office for which
this election was held. Thus, even though more ballots were marked
for NeSmith than for Houle, all votes cast for NeSmith were void.
3 OCGA § 21-2-438 (a) provides:
Any ballot marked so as to identify the voter shall be void and not counted, except a ballot cast by a challenged elector whose name appears on the electors list; such challenged vote shall be counted as prima facie valid but may be voided in the event of an election contest. Any ballot marked by anything but pen or pencil shall be void and not counted. Any erasure, mutilation, or defect in the vote for any candidate shall render void the vote for such candidate but shall not invalidate the votes cast on the remainder of the ballot, if otherwise properly marked. If an elector shall mark his or her ballot for more persons for any nomination or office than there are candidates to be voted for such nomination or office, or if, for any reason, it may be impossible to determine his or her choice for any nomination or office, his or her ballot shall not be counted for such nomination or office; but the ballot shall be counted for all nominations or offices for which it is properly marked. Ballots not marked or improperly or defectively marked so that the whole ballot is void, shall be set aside and shall be preserved with the other ballots. In primaries, votes cast for candidates who have died, withdrawn, or been disqualified shall be void and shall not be counted. In elections, votes for candidates who have died or been disqualified shall be void and shall not be counted. 8 Houle was then declared the winner of the election because all valid
votes cast in the District 6 election were cast for him.
The appellants argue that the rule embodied in OCGA §§ 21-2-
437 (d) and 21-2-438 (a) applies only in elections conducted with
paper ballots and that, because the Board utilized electronic ballot
markers and an optical scanning voting system to administer the
election for District 6, that election was not conducted with paper
ballots. They further argue that, for elections conducted with
electronic ballot markers and an optical scanning voting system, the
Election Code is silent as to how election boards should treat votes
cast for a candidate who has died. They argue that the superior court
erred by not overturning the decision of the Board and applying the
common law to order that a new election for District 6 be held, citing
Thompson v. Stone, 205 Ga. 243, 247 (2) (53 SE2d 458) (1949)
(“Unless the votes for an ineligible person are expressly declared [by
statute] to be void, the effect of such person receiving a majority of
the votes cast is . . . that a new election must be held, and is not to
give the office to the qualified person having the next highest
9 number of votes.” (citation and punctuation omitted)). We disagree.
Here, Director Sosebee testified that voters utilized electronic
ballot marking devices to make their selections for each office. Upon
confirmation of the voter’s selections on the marking device, the
voter’s ballot was then printed onto a paper form which, after the
voter had another opportunity to confirm or modify his or her
selections, was fed into an electronic tabulating device that optically
scanned the paper, counted the votes cast for each office, and
recorded the votes in a central database. Director Sosebee testified
that, even though an electronic marking device and an optical
scanner were utilized in the election, all of the ballots cast through
this process were “paper ballots.”
The superior court’s conclusion that the election was conducted
with paper ballots was therefore supported by the evidence before it.
Although various technologies were used to mark and count ballots
in this election, each of the technologies implemented by the Board
simply assisted voters in making their selections on paper and aided
the Board in receiving, organizing, and tracking votes cast by paper
10 ballot in a clear and uniform manner.
Our decision in Jones contemplates that multiple technologies
for marking and counting paper ballots can be used in a given
election and that the election should still be deemed to have been
conducted via paper ballots. See 262 Ga. at 468. In Jones, this Court
held that there was no distinction between a paper ballot marked by
a pencil and a cardboard ballot marked by a punch. See id. at 469.
We thus determined that OCGA § 21-2-438 (a), which we noted
“govern[s] the conduct of elections using paper ballots,” applied to
void ballots cast for a candidate who had withdrawn from the
election. Id.
The appellants make much of the fact that we acknowledged in
Jones that there were no statutes governing the use of the “vote
recorder” ballots that had been used in the election at issue in that
case. They further note that Georgia’s Election Code now contains a
number of provisions governing the use of electronic ballot markers
and optical scanning voting equipment, none of which say anything
about how an election board is to handle votes cast for a candidate
11 who died.
But it is clear from the record and our review of the relevant
statutes that this election was conducted with paper ballots. As the
trial court rightly noted, optical scanning voting systems and
electronic ballot markers are technologies that assist election boards
in conducting elections via paper ballots. In that regard, they are
simply an adjunct to an election conducted with paper ballots —not
a substitute for paper ballots.4 Accordingly, under Jones, the
provisions governing the use of paper ballots, including OCGA §§ 21-
4 OCGA § 21-2-2 (19.1) defines “optical scanning voting system” as “a
system employing paper ballots on which electors cast votes with a ballot marking device or electronic ballot marker after which votes are counted by ballot scanners.” OCGA § 21-2-2 (2) defines a “ballot marking device” as a “pen, pencil, or similar writing tool, or an electronic device designed for use in marking paper ballots in a manner that is detected as a vote so cast and then counted by ballot scanners.” An “electronic ballot marker” is “an electronic device that does not compute or retain votes; may integrate components such as a ballot scanner, printer, touch screen monitor, audio output, and a navigational keypad; and uses electronic technology to independently and privately mark a paper ballot at the direction of an elector, interpret ballot selections, communicate such interpretation for elector verification, and print an elector verifiable paper ballot.” OCGA § 21-2-2 (7.1). A “ballot scanner” is “an electronic recording device which receives an elector’s ballot and tabulates the votes on the ballot by its own devices[.]” OCGA § 21-2-2 (2.1). These and other statutory provisions governing the use of these technologies thus clearly contemplate that an optical scanning voting system, including one that utilizes electronic ballot markers, is used with paper ballots. 12 2-437 (d) and 21-2-438 (a), applied to this election. Under those
provisions, the Board of Elections discharged its statutory duty to
void all ballots cast for NeSmith, leaving Houle the winner.
3. Claims under the United States Constitution.
The appellants assert that the Board’s application of OCGA §§
21-2-437 (d) and 21-2-438 (a) to void the votes cast for NeSmith
violated a number of their rights under the United States
Constitution. They argue that the Board’s application of the statutes
violates their rights to vote, as recognized under the First and
Fourteenth Amendments, and their rights under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
We address each claim in turn.
(a) The appellants challenge the Board’s application of OCGA
§§ 21-2-437 (d) and 21-2-438 (a) on the basis that an election rule
voiding ballots marked for a candidate who has died prior to the
election places a severe burden on the right to vote under the First
and Fourteenth Amendments. We evaluate the constitutionality of
the Board’s application of these statutes by applying the Anderson-
13 Burdick test. See Anderson v. Celebrezze, 460 U. S. 780 (103 SCt
1564, 75 LE2d 547) (1983); Burdick v. Takushi, 504 U. S. 428 (112
SCt 2059, 119 LE2d 245) (1992). In considering whether the
application of a voting regulation violates the First and Fourteenth
Amendments, a reviewing court
must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
Anderson, 460 U. S. at 789 (I); see also Burdick, 504 U. S. at 434 (II).
Under this framework, a law that severely burdens the right to
vote must be narrowly drawn to serve a compelling state interest.
See Burdick, 504 U. S. at 434 (II). And even when a law imposes
only a slight burden on the right to vote, relevant and legitimate
interests of sufficient weight still must justify that burden. See
14 Common Cause/Ga. v. Billups, 554 F3d 1340, 1352 (III) (B) (11th
Cir. 2009). The more a challenged law burdens the right to vote, the
stricter the scrutiny to which reviewing courts subject that law. See
Stein v. Ala. Sec. of State, 774 F3d 689, 694 (IV) (11th Cir. 2014).
(i) Burden on right to vote.
The appellants argue that the Board’s application of OCGA §§
21-2-437 (d) and 21-2-438 (a) places a severe burden on their voting
rights and that the Board’s action was not narrowly drawn to
advance a state interest of compelling importance. We reject these
contentions.
As the Supreme Court recognized in Anderson, while voters’
rights under the First and Fourteenth Amendments are
fundamental,
not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates. . . . [A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.
(Citation and punctuation omitted.) Anderson, 460 U. S. at 788 (I).
15 Noting that virtually any regulation of the electoral process will
have some impact on an individual’s right to vote, the Supreme
Court noted that “the [s]tate’s important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory
restrictions.” Id. In those circumstances, courts should uphold
“reasonable, politically neutral regulations.” (Citation and
punctuation omitted.) Washington State Grange v. Washington State
Republican Party, 552 U. S. 442, 452 (II) (A) (128 SCt 1184, 170
LE2d 151) (2008). Under this framework, “States have a major role
to play in structuring and monitoring the election process,”
California Democratic Party v. Jones, 530 U. S. 567, 572 (II) (120
SCt 2402, 147 LE2d 502) (2000), and states are afforded “significant
flexibility in implementing their own voting systems.” Doe v. Reed,
561 U. S. 186, 195 (III) (A) (130 SCt 2811, 177 LE2d 493) (2010).
In Burdick, the Supreme Court considered a challenge to a
Hawaii election law that made no provision for write-in voting. See
504 U. S. at 430 (I). A voter challenged this law, arguing that he had
been prevented from voting for a person who had not filed
16 nominating papers and that, in future elections, he might wish to
vote for persons who did not appear on the ballot. See id. The
Supreme Court rejected this challenge, noting the petitioner’s
“erroneous assumption that a law that imposes any burden upon the
right to vote must be subject to strict scrutiny.” Id. at 432 (II). The
Court recognized that States retain the power to regulate their own
elections, see Sugarman v. Dougall, 413 U. S. 634, 647 (IV) (93 SCt
2842, 37 LE2d 853) (1973); Tashjian v. Republican Party of
Connecticut, 479 U. S. 208, 217 (II) (107 SCt 544, 93 LE2d 514)
(1986), and that “[e]lection laws will invariably impose some burden
upon individual voters.” Burdick, 504 U. S. at 433 (II). The Court
went on to note that
[e]ach provision of [an election] code, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends. Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently. Accordingly, the mere fact that a State’s
17 system creates barriers tending to limit the field of candidates from which voters might choose does not of itself compel close scrutiny.
(Citations and punctuation omitted.) Id. On this basis, the Supreme
Court upheld Hawaii’s rule regarding write-in ballots. See id. at 441-
442 (III).
Georgia’s election laws at issue here, much like those at issue
in Burdick, limit voters’ opportunities to select the candidate of their
choice. In Burdick, write-in votes for a candidate were not valid
under Hawaii law. They could not be cast, could not be accepted by
election authorities, and were not counted. See Burdick, 504 U. S. at
430. In short, they were void. The Supreme Court determined that
rules implementing that system placed only minimal burdens on a
voter’s right to vote. The Georgia statutes before us have a similar
effect.
Just as write-in ballots were void under the Hawaii law at issue
in Burdick, any ballots marked in a Georgia election for a candidate
who has died are void under OCGA §§ 21-2-437 (d) and 21-2-438 (a).
Such votes do not count, and our laws treat them as though they
18 were never cast at all. To the extent this rule burdens an individual’s
right to vote, the burden may even be more limited than the statutes
at issue in Burdick because, in this case, the fact of the candidate’s
death as well as the application of the statutes have deprived the
voters of their opportunity to have that candidate serve in office.
Moreover, each voter who voted for NeSmith had the opportunity to
vote for an eligible candidate — in this case, Houle. Thus, to the
extent there is a burden on the appellants’ right to vote occasioned
by the application of OCGA §§ 21-2-437 (d) and 21-2-438 (a) to void
votes cast for a candidate who has died, any such burden is, at most
“a very limited one.” Burdick, 504 U. S. at 437 (II) (A).
(ii) State’s interest in voiding votes cast for NeSmith.
We turn next to the state’s interests as asserted by the Board
and Houle to justify the policy of voiding votes cast for a candidate
who has died. Because we have already concluded that the burden
occasioned by this rule is slight, the Board need not establish a
compelling interest to tip the constitutional scales in its direction.
See Burdick, 504 U. S. at 439 (II) (B). Instead, it need only put forth
19 a reasonable, non-discriminatory justification for the rule. Such
justification must be “sufficiently weighty to justify the limitation,”
even though the burden on the right to vote occasioned by this rule
is slight. (Citation and punctuation omitted.) Crawford v. Marion
County Election Bd., 553 U. S. 181, 190 (128 SCt 1610, 170 LE2d
574) (2008).
Both Houle and the Board posit that OCGA §§ 21-2-437 (d) and
21-2-438 (a) simply allow for the efficient selection of elected
representatives. Houle further asserts that Georgia has an interest
in seeing that an election produces a winner so that voters are
ensured that newly elected officials take office when their terms are
set to begin. We agree that these are important regulatory interests
and that the policy embodied by OCGA §§ 21-2-437 (d) and 21-2-438
(a) is a reasonable and non-discriminatory exercise of the state’s
power to regulate elections in furtherance of these goals. See
Burdick, 504 U. S. at 433 (II) (noting state’s interest in “seeking to
assure that elections are operated equitably and efficiently”);
Anderson, 460 U. S. at 788 (I). Further, these interests — which are
20 critical to the operation of elections — outweigh the minimal burden
placed on the right to vote for a specific candidate who would not be
able to serve in office.
The appellants’ preferred remedy — ordering a new election for
District 6 due to the death of the person for whom the most votes
were cast — is one of several options that the General Assembly
could have selected in determining how to resolve this unfortunate
and, thankfully, rare scenario. But the General Assembly chose
instead to declare that any ballots marked for a candidate who has
died are void, just as ballots marked for a person who has been
disqualified from the ballot are void under the same statutes. See
OCGA §§ 21-2-437 (d); 21-2-438 (a). That policy did not target the
appellants or other voters on the basis of any political affiliation or
viewpoint, membership in a protected class, or other impermissible
basis. The statutes operated against the appellants only because
they voted for a person who died and who could not assume the office
for which he had previously qualified to run. The same fate could
unfortunately befall any candidate for elected office in Georgia, and
21 his or her supporters might find themselves in the same
disappointed position the appellants find themselves here. But the
application of a policy voiding votes cast for a dead candidate does
not violate the right to vote under the First Amendment and the
Fourteenth Amendment any more than it would violate the rights of
an individual who wanted to vote for someone otherwise disqualified
from appearing on the ballot or assuming office. See Burdick, 504 U.
S. at 440 (II) (B) n.10 (“It seems to us that limiting the choice of
candidates to those who have complied with state election law
requirements is the prototypical example of a regulation that, while
it affects the right to vote, is eminently reasonable.”); Cox v. Barber,
275 Ga. 415, 417-418 (2) (568 SE2d 478) (2002) (per curiam)
(upholding durational residency requirement for candidates for
Public Service Commission under Anderson-Burdick test).
To the contrary, the broad application of this rule to any
similar situation (without regard to the identity or affiliation of any
candidate or voter) illustrates that OCGA §§ 21-2-437 (d) and 21-2-
438 (a) provide a reasonable, neutral, and non-discriminatory
22 solution to a confounding electoral problem. See Crawford, 553 U. S.
at 202-203 (IV) (“When we consider only the statute’s broad
application to all . . . voters, we conclude that it imposes only a
limited burden on voters’ rights.” (citation and punctuation
omitted)). Rather than requiring that election boards incur the
expense of a new election — potentially delaying the ability of the
ultimate winner to take office when his or her term would otherwise
have begun — the state’s policy simply discards any votes cast for a
candidate who has died, just as it does for any candidate who has
been disqualified. If that candidate receives the most votes, the next
highest vote-getter either wins the election or moves to a runoff if he
or she did not achieve a majority of valid votes cast. See OCGA § 21-
2-501 (a) (1). In light of the minimal burden this rule places on the
right to vote, the state’s interest in finality and in administering a
fair and efficient election justify this rule and the Board’s
application of it in this case. Thus, the Board’s application of OCGA
§§ 21-2-437 (d) and 21-2-438 (a) did not violate the appellants’ rights
to vote under the First and Fourteenth Amendments.
23 (b) The appellants also argue that the Board’s decision to
invalidate votes cast for NeSmith valued their votes less than votes
cast for Houle and that this action constituted unconstitutional
“later arbitrary and disparate treatment” as articulated in Bush v.
Gore, 531 U. S. 98, 104-105 (II) (B) (121 SCt 525, 148 LE2d 388)
(2000). But, as is well known, Bush addressed recount procedures
that were ordered by the Florida Supreme Court after the disputed
2000 presidential election. The United States Supreme Court held
that court-ordered procedures for conducting a manual recount of
certain ballots cast in various counties in Florida were not specific
enough such that they could be implemented in order to make a
standards-based decision regarding the intent of the voter who had
cast each disputed ballot. See id. at 105-111 (II) (B).
In contrast, OCGA §§ 21-2-437 (d) and 21-2-438 (a) provide for
a simple, objective judgment to be made by the Board: if a candidate
has died, any votes cast for him or her are void. The Board need not
engage in the fraught determination as to how a “dimpled,”
“hanging,” or “pregnant” chad on a paper ballot evinces the voter’s
24 intent to select a particular candidate, as election boards in Florida
were attempting to do in 2000. See Favorito v. Handel, 285 Ga. 795,
797 (1) (a) (684 SE2d 257) (2009).
Moreover, to the extent Bush took issue with the fact that the
recount procedures at issue had been developed only after the
election, see 531 U. S. at 104-105 (II) (B), that concern is not present
here. OCGA §§ 21-2-437 (d) and 21-2-438 (a) were enacted well
before the June 9, 2020 election for District 6 county commissioner.
Upon learning of NeSmith’s death, the Board was not attempting to
fashion an ad hoc solution to a new problem not contemplated by
state law. Instead, the Board applied clear and longstanding
Georgia election statutes. Consequently, the appellants have no
claim that votes cast for NeSmith were void as the result of “later
arbitrary and disparate treatment,” as nothing about the
requirements of OCGA §§ 21-2-437 (d) and 21-2-438 (a) has been
shown to lack “specific standards to ensure [their] equal
application.” (Emphasis supplied.) Bush, 531 U. S. at 104-106 (II)
(B).
25 (c) Appellants also make a number of more generalized
arguments that the application of OCGA §§ 21-2-437 (d) and 21-2-
438 (a) violates their rights under the Fourteenth Amendment. But
because the decisions cited by the appellants have no bearing on the
issues before us in this case, we reject these claims.
Citing the United States Supreme Court’s decisions in
Wesberry v. Sanders, 376 U. S. 1, 17 (II) (84 SCt 526, 11 LE2d 481)
(1964); Gray v. Sanders, 372 U. S. 368, 380 (III) (83 SCt 801, 9 LE2d
821) (1963); and United States v. Mosley, 238 U. S. 383, 386 (35 SCt
904, 59 LE 1355) (1915), the appellants argue that the Board’s
application of OCGA §§ 21-2-437 (d) and 21-2-438 (a) in this case
violate what they characterize as their “fundamental right to have
their votes counted.” The appellants also argue that the Board’s
application of OCGA §§ 21-2-437 (d) and 21-2-438 (a) denied them
an equal vote in the District 6 election and unfairly weighted the
votes of those who voted for Houle, again citing Gray and the United
States Supreme Court’s decisions in City of Phoenix v. Kolodziejski,
399 U. S. 204, 209 (I) (90 SCt 1990, 26 LE2d 523) (1970), and Hadley
26 v. Junior College Dist. of Metropolitan Kansas City, 397 U. S. 50, 56
(90 SCt 791, 25 LE2d 45) (1970).
But none of those decisions concerned issues similar to those
before us in this case. Wesberry dealt with malapportionment of
congressional districts and the “one person, one vote” principle. See
376 U. S. at 7-8 (II) (declaring Georgia’s 1931 apportionment of
congressional districts to be unconstitutional and holding that
Article I, Section II of the United States Constitution requires “as
nearly as is practicable one man’s vote in a congressional election . .
. to be worth as much as another’s”). Hadley likewise involved
malapportionment of voting districts — specifically, districts for
trustees of a junior college board. See 397 U. S. at 51. The Supreme
Court held in that case that the formula for establishing the districts
resulted in systematic discrimination against voters in more
populous districts by diluting their voting power relative to the
voting power of those residing in smaller districts in violation of the
Equal Protection Clause. See id. at 52. Similarly, Gray declared
unconstitutional Georgia’s former county unit system, which
27 allocated to each county a specified number of members in the
Georgia House of Representatives. See 372 U. S. at 381 (III). The
Supreme Court declared that this system, which gave every
qualified voter in the statewide election one vote, but which, among
other outcomes, resulted in rural votes being weighted more heavily
than urban votes, violated the Equal Protection and Due Process
Clauses of the Fourteenth Amendment and the Seventeenth
Amendment. See Gray, 372 U. S. at 370-371 (I), 377-381 (III).
Because the appellants have not alleged any type of dilution of their
votes like that the Supreme Court ruled unconstitutional in these
decisions, their claims under those decisions fail.
The appellants’ reliance on Mosley is also misplaced. Mosley
was a criminal case involving a conspiracy to omit election returns
from certain voting precincts. In upholding the constitutionality of
the criminal statute, the Supreme Court simply noted that “the right
to have one’s vote counted is as open to protection by Congress as
the right to put a ballot in a box.” Mosley, 238 U. S. at 386. But that
case involved deliberate criminal efforts to ensure that certain
28 ballots that had been validly cast were not counted. That is not the
case before us.
Likewise, the Phoenix case provides no relief to the appellants.
That case involved a challenge to a state law providing that only
owners of real property had the right to vote in an election to
approve certain bonds to be issued by the city. See 399 U. S. at 212-
213 (I). That law was challenged by a city resident who was
otherwise qualified to vote in the election but who did not own real
property in the city. See id. at 206-207. The Supreme Court held that
the statute restricting voting to property owners violated the Equal
Protection Clause of the Fourteenth Amendment. See id. at 213 (II).
The appellants have not made any comparable allegation in this
case.
In sum, while the cases cited by the appellants stand for
important constitutional principles guaranteeing the right to vote
on a fair and equitable basis, we see nothing in those decisions
touching on the issues presented in this case. Although “[t]he right
to vote is fundamental, forming the bedrock of our democracy[,] it is
29 also clear that states are entitled to broad leeway in enacting
reasonable, even-handed legislation to ensure that elections are
carried out in a fair and orderly manner.” (Citations and
punctuation omitted.) Favorito, 285 Ga. at 796 (1) (a). While courts
have recognized the fundamental nature of the right to vote,
including the right to vote in legislative districts roughly equal in
size and to have an elector’s vote counted on equal terms with those
cast by other electors, the appellants have presented no cases to this
Court demonstrating that state statutes that void votes cast for a
candidate who has died violate these rights, as they have been
articulated by the United States Supreme Court.
4. Claim under the Georgia Constitution.
In addition to their claims under the United States
Constitution, the appellants argue that the Board’s invalidation of
their votes violates Georgia’s Equal Protection Clause set forth in
Article I, Section I, Paragraph II of the Georgia Constitution of 1983,
which provides that “[n]o person shall be denied the equal protection
of the laws.” But as we have previously held, Georgia’s Equal
30 Protection Clause “is generally coextensive with and substantially
equivalent to” the Equal Protection Clause of the Fourteenth
Amendment, and “we apply them as one.” Democratic Party of Ga.
v. Perdue, 288 Ga. 720, 728 (2) (707 SE2d 67) (2011). The appellants
have made no argument for a different application of the Georgia
constitutional provision under the circumstances of this case. Thus,
just as the appellants’ claims under the Equal Protection Clause of
the Fourteenth Amendment fail, so too do their claims under the
equal protection clause of the Georgia Constitution.
5. Conclusion.
In sum, the superior court did not err by determining that the
appellants’ challenge to the action of the Board of Elections was
without merit. The Board properly applied OCGA §§ 21-2-437 (d)
and 21-2-438 (a) to determine that all votes cast for NeSmith were
void. The application of those statutes by the Board in this case
violated no rights of the appellants recognized under the First or
Fourteenth Amendment to the United States Constitution or Article
I, Section I, Paragraph II of the Georgia Constitution. We thus
31 affirm the judgment of the superior court.
Judgment affirmed. All the Justices concur, except Warren, J., not participating.
Decided October 19, 2020.
Election contest. Clarke Superior Court. Before Judge Hodges, Senior Judge. David F. Ellison, for appellants Carothers & Mitchell, Thomas M. Mitchell; David W. Griffeth, for appellees.