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: August 13, 2024
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
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.
erred in (1) determining that his claims had become moot and (2)
finding insufficient evidence to place in doubt the result of the
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
2
election invalid. As relief, Miller requested that Hodge be removed
from the special election ballot; that the special election 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.
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
A runoff election was held on October 17, 2023, and the results
were certified on October 23. On November 9, 2023, the trial court
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
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 (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
(b) (3) permits the dismissal of an appeal “[w]here the questions
presented have become moot.” “An appeal becomes moot if the 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
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have consistently held that such challenges become “moot” once the
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
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to the date of the election deemed moot by occurrence of the general
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 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
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stay or supersedeas was requested or obtained[,] . . . it is 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, 427 (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
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of government”). Cf. Payne v. Chatman, 267 Ga. 873, 875 (485 SE2d
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
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 statutorilysanctioned 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 156 (“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
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
statement prevented him from moving the trial court to expedite a ruling or to
stay or enjoin the imminent runoff election.
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to invoke the statutory mechanism to stay the election until after
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
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brought under OCGA § 21-2-520 et seq., the occurrence of a
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 (citation and punctuation omitted). We have also
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recognized that “[o]rdering new elections is a drastic remedy for
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
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. Cf. Swain, 281 Ga. at 32 (“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.”).
Hodge has now been serving as Commissioner for more than
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).
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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.
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