BENHAM, Justice.
Appellant Dana Meade and Appellee Tim Williamson were the candidates on the ballot in a run-off election in the Democratic primary for Sheriff of Baker County.
"It is presumed that election returns are valid, and the party contesting the election has the burden of showing an irregularity or illegality sufficient to change or place in doubt the result of the election." Banker v. Cole, 278 Ga. 532, 535(4), 604 S.E.2d 165 (2004) (citations and punctuation omitted). On the other hand, "a trial court's findings in an election contest will not be disturbed unless clearly erroneous." Id. at 533(1), 604 S.E.2d 165 (citations and punctuation omitted). Based upon this Court's review of the evidence presented at the bench trial, we find the contestant in this case did not meet the evidentiary burden and that the trial court committed factual and legal errors in its ruling. This Court has set aside elections under two different circumstances. In the majority of cases in which this Court has affirmed an order setting aside an election, we have required the evidence to "show that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt upon the election." McCranie v. Mullis, 267 Ga. 416, 478 S.E.2d 377 (1996).
The trial court based its order upon the following findings: (1) there had been vote buying; (2) a Meade supporter was seen in possession of 20 or so absentee ballot applications that she delivered to Van Irvin, a county commissioner; (3) eight voters had been assisted by a single individual who was not shown to be qualified to assist these voters pursuant to OCGA § 21-2-409(b)(2) and another voter was assisted by a person who likewise was not qualified to assist; (4) four absentee ballot applications reflected addresses different from the address at which the applicant was registered to vote; (5) four absentee ballot envelopes that reflected the voter received assistance in voting contained incomplete oaths in that they failed to designate the disability that would authorize a person to assist the voter; and (6) 14 absentee ballots appeared to have been altered. First, we address the issue of whether the evidence supported the invalidation of a sufficient
1. With respect to the finding of vote buying, only one witness testified he had been given money in exchange for his vote.
With respect to the finding that eight voters had been assisted by one who was unqualified to assist them, the evidence reflects each of these voters was assisted by Andrea Stubbs, a convicted felon who was not qualified to vote. The trial court based its finding that Stubbs was unqualified to assist any of these electors on the ground that she was thus not a qualified elector of the precinct, as required by OCGA § 21-2-409(b)(2)(A), and that she was not otherwise qualified to serve as an assistant pursuant to OCGA § 21-2-409(b)(2)(B) because "she was not identified as a qualified family member" of each of the eight voters.
That the two remaining absentee ballot requests at issue in the case (filed by Willie Bodiford and Manerva Crumbley) were each mailed to an in-county address other than the one reflected on the applicant's voter registration record is also insufficient to invalidate these voters' ballots. The election supervisor testified to the steps taken to verify the authenticity of the signature of an applicant for an absentee ballot against the signature on the voter registration card, as well as the steps taken to verify the authenticity of the signature of the voter on the space provided for the oath of the elector that is pre-printed on the return envelop in which the absentee ballot is mailed back to the Board of Registrars. "Where the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that the performance is essential to the validity of the election, they will be regarded as merely directory unless they affect the actual merits of the election." Hastings v. Wilson, 181 Ga. 305, 307, 182 S.E. 375 (1935) (citation omitted) (holding the statute requiring election returns to be made within three days did not require the Secretary of State to invalidate the results of a statewide referendum because they included returns from counties that reported late). We construe the language in OCGA § 21-2-381(a)(1)(D) stating that, with noted exceptions, no absentee ballots shall be mailed to an address other than the permanent mailing address reflected on the applicant's voter registration record, to be directory and not to require, under the circumstances in this case, the ballots in question to be invalidated.
With respect to the finding that four absentee ballot envelopes reflecting the voter received assistance in voting contained incomplete oaths, this also does not require invalidation of these ballots. The trial court noted that these four ballot envelopes failed to designate the disability that would authorize a person to assist the voter. Pursuant to OCGA § 21-2-409(a), the only grounds for receiving assistance in voting in an election are the voter's inability to read English or a disability that renders the voter unable to cast a ballot without assistance, such as a visual impairment. Each of the four ballot envelopes in question in this case reflects the voter executed the pre-printed oath of the
Just as we have previously held that a voting officer's blunder in failing strictly to comply with the law should not serve to disenfranchise the voter, likewise the blunder of the person assisting an absentee voter by failing to specify the reason the voter needed assistance should not, without more, require the invalidation of these isolated ballots. Compare Holton v. Hollingsworth, 270 Ga. 591(4), 514 S.E.2d 6 (1999) (an absentee ballot was properly counted even though the election manager erroneously approved an individual who was not a registered voter to assist the disabled voter in preparing the ballot); Malone v. Tison, 248 Ga. 209, 282 S.E.2d 84 (1981) (the remedy of disenfranchisement deemed inappropriate where the registrations of otherwise qualified voters were processed at registration places not properly advertised in compliance with statutory requirements). Though the reason for the voter's need for assistance was not provided on these four ballots, each bore the oath, under penalty of law, that the voter qualified for assistance.
With respect to the finding that 14 absentee ballots appeared to have been altered, we find the trial court erred in concluding these 14 ballots, even if invalidated, were sufficient in number to cast doubt upon the results of the election. The evidence shows these 14 ballots contain similar markings by which Williamson's name along with the circle next to his name was marked out and the circle next to Meade's name was filled in, as if to cast a vote for Meade. Testimony was presented that due to the irregularities with these ballots, they could not be tabulated by the voting machine and, after examination, were marked invalidated and then re-cast by officials with the board of registrars for Meade. The undisputed testimony established that the sealed envelopes in which these ballots were returned to the board of registrars did not appear to have been tampered with. Thus, at most, as the trial court concluded, "[i]t is only speculation as to for whom the votes were intended originally...." Assuming, without deciding, that the evidence was sufficient to invalidate these 14 ballots, this would not be sufficient to change or cast doubt upon the results.
The margin of victory in this case was 39 votes. Even if all 14 of the disputed votes contained in the "marked up" absentee ballots were recast from Meade to Williamson and the one vote for which there was evidence of vote buying were deducted from Meade's total votes, the result of the election would not be changed.
2. Having concluded that the evidence regarding specific contested ballots or
By contrast, in Middleton v. Smith, 273 Ga. 202, 539 S.E.2d 163 (2000), where a sheriff engaged in questionable campaign conduct on behalf of certain county commissioner candidates, this Court reversed the trial court's order invalidating the election because the challenger failed to show a specific number of illegal or irregular ballots sufficient to change or cast doubt upon the results. Finding the assertion that the sheriff's improper campaign activities at one precinct put all of that precinct's votes in doubt was based on mere speculation, this Court stated: "It is not sufficient to show irregularities which simply erode confidence in the outcome of the election. Elections cannot be overturned on the basis of mere speculation." Id. at 203, 539 S.E.2d 163. Williamson urges this Court to adopt the analysis of then Chief Justice Benham's dissent in Middleton, which cautioned against focusing excessively narrowly on specific ballots while ignoring facts demonstrating that the entire election process was debased. See Middleton, id. at 204-205, 539 S.E.2d 163. In Middleton, however, the trial court found numerous instances of the sheriff's improper attempts to influence votes in favor of certain candidates for county commissioners, such as mailing approximately 1,200 letters to voters, over official stationary, urging them to vote for his candidates, offering to "help" a convicted felon who performed community service at the sheriff's department if he would help these candidates, offering to "help" a voter who was facing DUI charges, as well as evidence the sheriff prepared and distributed 18 absentee ballot applications. On this evidence, the dissent in Middleton concluded the wrongdoing was so widespread and systemic "as to render it virtually impossible to identify defective ballots or intimidated voters individually." Id. at 205, 539 S.E.2d 163.
Williamson also asserts that this Court's holding in McCranie v. Mullis, supra, affirming invalidation of an election, requires invalidation in this case. Williamson asserts that here, as in McCranie, the irregularities amount to violations of election law and therefore they require invalidation because the election results are placed in doubt. Williamson distinguishes Middleton because there the irregularities were merely ethical violations by the sheriff, who was not the candidate but the candidates' supporter, and this Court noted that it was not necessary to invalidate the election because of the sheriff's misconduct when he could be disciplined in other ways. Middleton, supra at 204, 539 S.E.2d 163. Even in McCranie, however, a sufficient number of irregular votes was shown which would cast doubt upon the result
In the case now before us, evidence of systemic misconduct for vote buying and alleged wrongful distribution of absentee ballots is largely speculative and is insufficient to support the trial court's conclusion that irregularities in the election process were shown to cast doubt upon the results. Williamson presented evidence of only one illegally bought vote and the remaining evidence of vote buying was based upon hearsay and gossip. Insufficient evidence was presented to conclude any misconduct relative to the distribution of absentee ballots. No evidence at all was presented to support the conclusion that unqualified persons were wrongly permitted to assist voters. Evidence relating to alleged improprieties in absentee ballot voting is also insufficient to invalidate the results of this election. Even if we accept the finding that 14 absentee ballots appear to have been altered, this also does not support the invalidation of the results of the election. Since there was no evidence of tampering of the official envelopes in which the ballots were returned to the board of registrars, it is purely speculative that the alterations were made by anyone other than the voters. The evidence falls short of demonstrating systemic irregularities in the election process.
Because Williamson failed to carry the burden of demonstrating the election results should be invalidated either by establishing a sufficient number of specific irregular or invalid votes to change or place in doubt the results, or by establishing sufficient irregularities in the election process to cast doubt upon the result, we reverse the trial court's order invalidating the election results.
Judgment reversed.
All the Justices concur.