In RE: DECEMBER 6, 2022 GENERAL ELECTION BALLOT (Three Cases)

2023-06-21

Summary · law.co

Holding. The Court affirmed the trial courts' dismissals and denials of relief, concluding that without a named defendant who had been properly served under the rules of civil procedure, the courts had no authority to grant the extraordinary relief of voiding an election.

Three voters filed complaints in superior courts in different Georgia counties on election day, claiming the voting system used in a December 2022 Senate runoff election violated state law and requesting that the elections be declared void and uncertifiable. The complaints did not name any defendant—such as a county Board of Elections—and the voters did not serve process on any party. The trial courts dismissed or denied relief in each case, finding they lacked authority to grant the requested remedies without a properly named and served defendant. The Georgia Supreme Court examined whether the trial courts properly rejected these election challenges.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court may grant relief in an election contest without a named and served defendant
Proper pleading and service requirements in election dispute proceedings
Authority and jurisdiction to void an election

Procedural posture

Three pro se complaints were filed in superior courts on election day challenging the voting system used in a Senate runoff election; the trial courts dismissed or denied relief, and the voters appealed by discretionary application to the Georgia Supreme Court.

Authorities cited

188 Ga. 291

Opinion · public domain

majority opinion

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: June 21, 2023

S23A0583, S23A0665. IN RE: DECEMBER 6, 2022 GENERAL

ELECTION BALLOT.

S23A0800. IN RE: KEVIN C. MULDOWNEY.

BOGGS, Chief Justice.

Appellants Sarah Thompson, Kevin Muldowney, and Edward

T. Metz filed three, virtually identical complaints in their respective

counties on December 6, 2022, alleging that the voting system used

that day in the runoff election for a United States Senate seat did

not comply with Georgia law. The trial courts entered orders either

dismissing the complaints or denying relief. Because the complaints

did not name any defendant and because Appellants failed to serve

any defendant, the trial courts correctly determined that they had

no authority to grant the relief sought. Accordingly, we affirm.

In their pro se complaints, which were filed in the superior

courts of Bulloch, Cobb, and Fulton counties, Appellants requested

that the trial court declare the runoff election in each county to be

“void” and “uncertifiable by the Elections Superintendent” of the

county. They each alleged that they had cast a ballot on an electronic

ballot marking device that failed to meet the statutory requirements

for a lawful ballot and that the use of this voting system forced all

voters to cast unofficial ballots. They sought relief under OCGA § 21-2-412, which requires that a superior court judge in each judicial

circuit be available on election day from 7:00 a.m. to 10:00 p.m. to

address election-related issues.1 Appellants also sought to have each

trial court enter an order requiring the counties to hold referenda at

some unspecified time on the adoption of voting machines, citing

1 OCGA § 21-2-412 provides:

At least one judge of the superior court of each judicial circuit shall

be available in his or her circuit on the day of each primary or

election from 7:00 A.M. eastern standard time or eastern daylight

time, whichever is applicable, until 10:00 P.M. eastern standard

time or eastern daylight time, whichever is applicable, and so long

thereafter as it may appear that the process of such court will be

necessary to secure a free, fair, and correct computation and

canvass of votes cast at such primary or election. During such

period the court shall issue process, if necessary, to enforce and

secure compliance with the primary or election laws and shall

decide such other matters pertaining to the primary or election as

may be necessary to carry out the intent of this chapter.

OCGA § 21-2-321, which authorizes a municipality that conducts

elections by paper ballot to hold a referendum on the use of voting

machines.

The complaints did not name any county’s Board of Elections

and Registration (collectively “the Boards”)2 or any other person or

entity as defendant, and, accordingly, the clerks of the superior

courts did not issue summons. See OCGA § 9-11-4 (a); OCGA § 21-2-524 (f). Nor did the complaints ask the trial courts to order a new

runoff election or otherwise seek any relief with respect to the

election. Citing various reasons, each trial court either dismissed the

complaint or denied relief. 3 Appellants filed discretionary

2 The legislature has authorized the creation of County Boards of

Elections and Registration to exercise the statutory powers of an “election

superintendent.” See OCGA § 21-2-40 (b). See also OCGA § 21-2-493 (requiring

county election superintendent to certify county election returns).

3 The Bulloch County Superior Court’s order denying relief stated that

the complaint “requested relief beyond the power of this Court to grant.” The

Fulton County Superior Court’s order dismissed the complaint, stating, in part,

“there is no entity . . . over which the Court has personal jurisdiction to order

any . . . relief.” The Cobb County Superior Court’s order dismissed the

complaint, stating that the Appellant “has not brought his action against any

party” and that by the time the court became aware of the complaint, the

election results had already been certified by the Cobb County Board of

Elections.

applications, which this Court granted under OCGA § 5-6-35 (j).

It is axiomatic that in order for a trial court to grant relief

against a party, that party must be named in a proper pleading and

must have submitted to the court’s jurisdiction voluntarily or been

brought within the jurisdiction of the court through compliance with

the rules governing service of process. See Webb & Martin, Inc. v.

Anderson-McGriff Hardware Co., 188 Ga. 291, 294 (3 SE2d 882)

(1939) (person named in record as party is not in fact a party unless

he has been brought in by legal process or has voluntarily appeared

and submitted himself to jurisdiction of court). See also Schmitz v.

Barron, 312 Ga. 523, 530 (863 SE2d 121) (2021) (“[F]ailure to

diligently pursue service as required by OCGA § 21-2-524 (f)

provides grounds for dismissal of an election contest . . . .”). But no

person, entity, or party has been served as a defendant here. 4

Moreover, Appellants have cited no legal authority that would

authorize this Court in these circumstances to reverse the trial

4 Although not named or served below, upon being notified of the

pendency of the appeals by this Court, the Boards filed briefs in response to

Appellants’ briefs.

courts’ refusal to grant the requested extraordinary relief of voiding

an election. Accordingly, we conclude that the trial courts did not err

in their rulings below.

Judgments affirmed. All the Justices concur.