NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: December 10, 2024
S25A0095. PONDER et al. v. DAVIS et al.
MCMILLIAN, Justice.
In May 2024, Appellant Tabitha Ponder ran against and lost to
Jeffrey Davis for a seat on the Georgia Court of Appeals. Three
weeks after her loss, Ponder, along with an elector, Randolph Frails,
filed the underlying election contest petition, asserting that Davis
was not qualified to run as a candidate in the election because he is
not a resident of Georgia. Appellants Ponder and Frails appeal from
the superior court’s dismissal of that election contest petition.
Because Appellants have failed to do “everything within their power
to have their claims decided before the election occurred,” we
“dismiss the appeal without reaching the merits (or lack thereof).”
Catoosa County Republican Party v. Henry, 319 Ga. 794, 794-95 (906
SE2d 750) (2024).
Prior to the election which took place on May 21, 2024, Frails
alone filed a challenge to Davis’s qualifications to run as a candidate
under OCGA § 21-2-5, alleging that Davis was not a resident of
Georgia. That challenge requested the Secretary of State to
“[p]lease initiate proceedings into and expeditiously refer the
matters to an administrative law judge at the Office of State
Administrative Hearings for a hearing,” though it did not request a
hearing or decision by any particular date. An administrative law
judge initially found that Davis failed to prove that he actually
resided at the address he provided at the time he submitted his
declaration of candidacy and accompanying affidavit to qualify for
the election. Thereafter, the Secretary of State reviewed the
administrative law judge’s initial decision and issued his final
decision on May 16, 2024, finding that Davis satisfied his burden by
proving by a preponderance of the evidence that he was a Georgia
resident at the time of qualifying based on facts such as his voter’s
registration, voting history, and driver’s license. The next day,
Frails filed in the superior court a petition for judicial review of the
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Secretary’s final decision under OCGA § 21-2-5 (e); Frails also
moved for an emergency hearing on his petition and moved to stay
the certification of the election results until his challenge was
decided. It does not appear, however, that Frails moved to stay the
election itself, and Frails has not otherwise shown how he has acted
with dispatch to resolve his claims prior to the election taking place.
Also, it does not appear that Ponder openly or formally participated
in Frails’s challenge or that she filed her own pre-election challenge.
On May 21, 2024, the election was held, with Davis receiving
57.1% of the votes and Ponder receiving 42.9%. According to the
superior court, “[a]s requested by Petitioner, the Court held a
hearing on Friday, June 7,” after which it entered an order
dismissing Frails’s petition as moot because the election had already
occurred and the results were certified by the Secretary of State.
Frails did not appeal that order.
Rather, on June 11, Ponder and Frails filed this separate postelection contest petition under OCGA § 21-2-524 against Davis, the
Fulton County Board of Registration and Elections, the Fulton
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County Department of Registration and Elections, and John or Jane
Doe as a Public Officer of the State of Georgia,1 asserting that Davis
was not a resident of Georgia and requesting that the superior court
declare Ponder the winner of the election. Motions to dismiss on
various grounds were filed, including that the petitioners’
verifications failed to assert “that according to the best of his or her
knowledge and belief the contested result of the primary or election
[was] illegal and the return thereof incorrect,” as required by OCGA
§ 21-2-524 (d). On July 22, Ponder and Frails moved for leave to
amend their original petition to substitute the Secretary of State as
a party and to correct the petition’s verifications. On August 5, the
superior court held a hearing on the parties’ motions, and on August
7, it entered an order dismissing Ponder and Frails’ petition against
all parties.
In the order, the superior court ruled that the verifications filed
with the original petitions failed to meet the requirements of OCGA
1 Appellants later voluntarily dismissed the Fulton County Department
of Registration and Elections and attempted to substitute the Secretary of
State in place of John or Jane Doe.
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§ 21-2-524 (d). The court then denied Ponder and Frails’ request for
leave to amend the defective verifications, reasoning that although
the Election Code requires “prompt disposition of election disputes,”
Ponder and Frails did not file their petition challenging the election
until 21 days after the election and then waited until 62 days after
the election to seek to amend the verifications. The court dismissed
the petition on the grounds that the verifications were defective and
then went on to make a number of alternative rulings supporting
dismissal. On appeal, Ponder and Frails enumerate several alleged
errors regarding the merits of the superior court’s rulings.
Before turning to the merits, we first consider the effect of
Appellants’ failure to pursue with dispatch their challenge to Davis’s
qualifications before the May 2024 election took place or to
otherwise seek a stay of that election so that their claims could be
resolved prior to the election occurring. We have explained that
challengers are required to do all they can to ensure that their
claims are resolved before an election occurs and that for prudential
reasons, courts generally should refrain from exercising their
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jurisdiction to invalidate an election when a party has failed to act
with dispatch to resolve issues that could have been raised and
resolved before an election takes place. See Miller v. Hodge, 319 Ga.
543, 548-49 (1) (905 SE2d 562) (2024) (explaining that “the
occurrence of a subsequent election does not necessarily ‘moot’
issues related to a previous one[,]” but there are “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[,]” and such prudential considerations
“continue to counsel the courts in limiting the exercise of
jurisdiction”); see also Henry, 319 Ga. at 798 (noting these
prudential considerations include “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’” (quoting Miller, 319 Ga.
at 548 (1) (cleaned up))). In Miller, we held that “litigants in election
contests have a duty to expedite resolution of the dispute before an
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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.” 319 Ga. at 549 (1) (citation and
punctuation omitted).
We reaffirmed these principles even more recently in Henry,
where we explained:
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.
319 Ga. at 794. Because the appellants in Henry, who challenged
the qualifications of candidates to run in an election, failed to do all
they could to ensure their claims were resolved before the election
occurred, we dismissed their appeal based on the circumstances and
prudential concerns discussed above. Id. at 797 (“Given the
[appellants’] failure to litigate this appeal with dispatch, our longstanding precedent directs us to decline to consider their
arguments.”); see also Randolph County v. Johnson, 282 Ga. 160,
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160 (1) (646 SE2d 261) (2007) (dismissing board of elections’ appeal
challenging qualifications of candidate when the election had taken
place); Jordan v. Cook, 277 Ga. 155, 156 (587 SE2d 52) (2003)
(dismissing appeal challenging qualifications of opposing candidate
when appellant delayed in filing an appeal until after he lost the
election).
Appellants have failed to “utilize every available means to
protect [their] rights and to resolve” their challenge to Davis’s
qualifications prior to the election. Miller, 319 Ga. at 547 (1). While
Frails did file a pre-election challenge to Davis’s qualifications, he
never moved to stay the election, chose not to appeal the dismissal
of his pre-election challenge, and has not otherwise shown how he
has acted with dispatch to resolve his claims before the election took
place. Ponder, like Frails, never sought a stay of the election until
the challenges to Davis’s qualifications could be resolved. Indeed, it
does not appear that Ponder participated in any pre-election
challenge at all, instead waiting until three weeks after she lost the
election to file this post-election contest.
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Based on the foregoing, we conclude that Appellants have
failed to show that they did all they could to resolve their claims
with dispatch before the election and that the prudential grounds
discussed above counsel for dismissal of their appeal. See Henry,
319 Ga. at 795-800; Johnson, 282 Ga. at 160 (1); Jordan, 277 Ga. at
157. For these reasons, we dismiss the appeal without addressing
the merits of Appellants’ enumerations of error regarding the
superior court’s rulings. See Henry, 318 Ga. at 795, 800; Miller, 319
Ga. at 544, 549 (1), 550 (2).
Appeal dismissed. All the Justices concur, except Colvin, J., not
participating.
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