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In re December 6, 2022 General Election Ballot

Supreme Court of Georgia.
Jun 21, 2023
316 Ga. 843 (Ga. 2023)

Opinion

S23A0583, S23A0665, S23A0800

06-21-2023

IN RE: DECEMBER 6, 2022 GENERAL ELECTION BALLOT. In re: Kevin C. Muldowney.

Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, for Appellant in S23A0583. Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, for Appellee in S23A0583. Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, for Other Party in S23A0583. Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, for Appellant in S23A0665. James Christopher Abely, PO Box 30010, Sea Island, Georgia 31561, Robert Coovert, 245 Laurel Creek Road, Blue Ridge, Georgia 30517, for Amicus Appellant in S23A0665. Charles Patrick Aaron, George Holland Rountree, Brown Rountree PC, 26 N. Main Street, Statesboro, Georgia 30458, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, for Appellee in S23A0665. Kevin C. Muldowney, 3325 Kentworth Lane , Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0665. Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, for Appellant in S23A0800. Y. Soo Jo, Fulton County Attorney's Office, 141 Pryor Street, SW, Suite 4038, Atlanta, Georgia 30303, Mathew Eli Plott, Assistant County Attorney, Kaye Woodard Burwell, Assistant County Attorney, Shalanda M. J. Miller, Office of the Fulton County Attorney, 141 Pryor Street SW, Suite 4038, Atlanta, Georgia 30303, Cathy Woolard, Registration and Elections Board, 130 Peachtree St SW, Suite 2186, Atlanta, Georgia 30303, for Appellee in S23A0800. Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, Christopher M. Carr, Attorney General, Russell David Willard, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0800.


Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, for Appellant in S23A0583.

Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, for Appellee in S23A0583.

Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, for Other Party in S23A0583.

Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, for Appellant in S23A0665.

James Christopher Abely, PO Box 30010, Sea Island, Georgia 31561, Robert Coovert, 245 Laurel Creek Road, Blue Ridge, Georgia 30517, for Amicus Appellant in S23A0665.

Charles Patrick Aaron, George Holland Rountree, Brown Rountree PC, 26 N. Main Street, Statesboro, Georgia 30458, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, for Appellee in S23A0665.

Kevin C. Muldowney, 3325 Kentworth Lane , Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0665.

Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, for Appellant in S23A0800.

Y. Soo Jo, Fulton County Attorney's Office, 141 Pryor Street, SW, Suite 4038, Atlanta, Georgia 30303, Mathew Eli Plott, Assistant County Attorney, Kaye Woodard Burwell, Assistant County Attorney, Shalanda M. J. Miller, Office of the Fulton County Attorney, 141 Pryor Street SW, Suite 4038, Atlanta, Georgia 30303, Cathy Woolard, Registration and Elections Board, 130 Peachtree St SW, Suite 2186, Atlanta, Georgia 30303, for Appellee in S23A0800.

Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, Christopher M. Carr, Attorney General, Russell David Willard, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0800.

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. 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 OCGA § 21-2-321, which authorizes a municipality that conducts elections by paper ballot to hold a referendum on the use of voting machines.

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.

The complaints did not name any county's Board of Elections and Registration (collectively "the Boards") 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. Appellants filed discretionary applications, which this Court granted under OCGA § 5-6-35 (j).

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).

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.

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) S.E.2d 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 S.E.2d 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. Moreover, Appellants have cited no legal authority that would authorize this Court in these circumstances to reverse the trial 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.

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.

Judgments affirmed.

All the Justices concur.


Summaries of

In re December 6, 2022 General Election Ballot

Supreme Court of Georgia.
Jun 21, 2023
316 Ga. 843 (Ga. 2023)
Case details for

In re December 6, 2022 General Election Ballot

Case Details

Full title:IN RE: DECEMBER 6, 2022 GENERAL ELECTION BALLOT. In re: Kevin C. Muldowney.

Court:Supreme Court of Georgia.

Date published: Jun 21, 2023

Citations

316 Ga. 843 (Ga. 2023)
889 S.E.2d 811