Judge Declines to Order New Election in HD 128
Well, this is a head scratcher.
We have talked about the race for HD 128 quite a bit on the podcast. The incumbent, Democrat Mack Jackson defeated his Republican Challenger, Tracy Wheeler, in November’s general election by a mere 48 votes. The AJC’s Mark Niesse reported that 90 voters in McDuffie County had been flagged as living in the wrong district.
Predictably, Wheeler sued to have the election tossed out and re-run, and there is recent precedent that justified her request. If this feels eerily familiar, it is because nearly the exact same thing happened to State Representative Dan Gasaway in 2018. In Gasaway’s case, a judge ordered the election to be rerun, not once, but twice, after similar errors to HD 128 were detected that allowed a greater number of ineligible voters to cast ballots than the margin of victory. Chris Irwin would finally defeat Gasaway in the third election in April of 2019.
The judge in the Jackson-Wheeler case found 58 ineligible voters who were allowed to cast ballots in this House District where they did not live. If the precedent in the Gasaway-Irwin race had held, it should have been a slam dunk to have the election re-run since the margin of victory for Jackson was only 48. But the judge ruled today that he did not hear enough testimony from the affected voters to call for a new election.
I am not aware of testimony from individual voters being required for this type of contest. In fact, having to tell the court for who or how you voted violates the fundamental principle of voter anonymity. For the judge to get the proof he would require that principle would certainly be trampled.
Hence, we are left to scratch our heads.
In Georgia, the legal framework for contesting election results is outlined in the Official Code of Georgia Annotated (O.C.G.A.) § 21-2-522. This statute specifies the grounds upon which an election can be contested:
- Misconduct, Fraud, or Irregularity: If any election official engages in misconduct, fraud, or irregularities that are significant enough to change or cast doubt upon the election’s outcome.
- Ineligibility of the Candidate: If the winning candidate is found to be ineligible for the nomination or the office in question.
- Illegal or Rejected Votes: If illegal votes were accepted or legal votes were rejected at the polls, and these actions are sufficient to change or place in doubt the election result.
- Errors in Vote Counting or Result Declaration: If there are errors in counting the votes or in declaring the election results, and such errors would change the outcome.
- Other Causes: Any other reason that demonstrates another individual was the person legally nominated, elected, or eligible to compete in a runoff.
To initiate a contest, a petition must be filed in the office of the clerk of the superior court having jurisdiction within five days after the official consolidation and certification of the election results. The petition should detail the contestant’s qualifications, the desire to contest the result, the specific office or question involved, the name of the defendant, the names of all candidates in the contested election, and each ground for the contest.
How did this happen anyway?
In the Jackson-Wheeler case, the ballot errors were primarily caused by districting mistakes following the 2021 redistricting process. These errors led to voters being assigned to incorrect state House districts, resulting in some individuals receiving the wrong ballots during the election.
Specific Causes of the Errors:
- Incorrect District Assignments:
- Election officials mistakenly placed entire streets within House District 128 when only one side should have been included.
- Some residences were misclassified due to address discrepancies, such as listing an address as a “road” instead of a “street.”
- Errors in Voter Reassignment:
- After the 2021 redistricting, district lines moved east, requiring election officials to reassign voters to the correct districts.
- In McDuffie County, officials admitted to errors in this reassignment process, leading to voters being placed in the wrong districts.
Attorneys for Wheeler have said she is considering an appeal. Without one, it appears we now have a competing set of cases that set the standard for when a judge should call for a new election. The law does not specifically state that the margin of victory to ineligible/missing voter ratio should be the standard, however, if I was still in the House, I would be heading over to legislative counsel to draft a bill to fix that.
