Warren, Justice.
In this case, Petitioners challenge the 2018 election for lieutenant governor—an election in which more than 3.7 million Georgians cast a vote—alleging that defects in electronic voting machines cast doubt on the election in which Geoff Duncan defeated Sarah Riggs Amico by 123,172 votes.
Elections are critical to our democratic republic. We give great credence to the choices citizens make when they engage in the democratic process by voting to select their representatives. And because we place so much value on that exercise of democracy, we afford great weight to election results. Indeed, "[t]he setting aside of an election in which the people have chosen their representative is a drastic remedy that should not be undertaken lightly, but instead should be reserved for cases in which a person challenging an election has clearly established a violation of election procedures and has demonstrated that the violation has placed the result of the election in doubt." Hunt v. Crawford, 270 Ga. 7, 10, 507 S.E.2d 723 (1998).
Georgia law nonetheless allows elections to be contested through litigation, both as a check on the integrity of the election process and as a means of ensuring the fundamental right of citizens to vote and to have their votes counted accurately. See OCGA § 21-2-520 et seq. But an election contest is, by statutory design, an expedited proceeding—and one that vests in trial courts broad authority to manage the proceeding, including to "proceed without delay to the hearing and determination of" the election contest. See OCGA § 21-2-525(b). This system balances citizens' franchise against the need to finalize election results, which, in turn, facilitates the orderly and peaceful transition of power that is a hallmark of our government.
This Court has long held that "`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.'" Meade v. Williamson, 293 Ga. 142, 143, 745 S.E.2d 279 (2013) (citation omitted). To prevail on such a claim, a party contesting an election must therefore offer evidence—not merely theories or conjecture —that places in doubt the result of an election. And although the technology our State has used to conduct elections has changed over time, the burden a party carries when challenging the result of an election has not. The Petitioners in this case have not carried that burden, and the discussion that follows explains why.
In Division 1, we chronicle Petitioners' claims from the time they were filed in the days after the November 6, 2018, statewide general election, until the trial court granted a motion to involuntarily dismiss Petitioners' then-remaining state law election contest claim after trial in January 2019. In Division 2, we review Petitioners' four enumerations of error related to pre-trial discovery—including claims that the trial court did not allow reasonable time for discovery, did not permit needed discovery, and wrongly denied Petitioners' motion to compel and motion for continuance. We conclude that, given the Election Code's statutory mandates and the broad discretion trial courts are given to manage pretrial discovery, the trial court did not abuse its discretion. In Division 3, we review Petitioners' two enumerations of error related to the involuntary dismissal of their election contest claim—that the trial court made an erroneous factual finding about the number of potential illegal or irregular votes in the election for lieutenant governor, and that the trial court erred in its legal analysis of whether Petitioners met their burden of presenting sufficient evidence of irregularities related to electronic voting machines used in the 2018 general election. We conclude that, although the trial court made at least one clearly erroneous finding of fact, it reached the correct legal conclusion when it determined that Petitioners failed to meet their burden of presenting evidence that places in doubt the result of the election for lieutenant governor. Finally, in Division 4, we review and reject Petitioners' unsupported argument that the trial court erred by denying Petitioners' request for a jury trial. As a result, we affirm the trial court's dismissal of Petitioners' petition contesting the election for lieutenant governor.
On November 6, 2018, a statewide general election was held to elect Georgia's next Governor and a number of other statewide officials, including (among others) Attorney General and Secretary of State.
On November 23, 2018, Petitioners—the Coalition for Good Governance (a nonprofit organization organized under Colorado law but apparently headquartered in North Carolina), Rhonda J. Martin (an "aggrieved elector"), Jeanne Dufort (an "aggrieved elector"), and Smythe DuVal (a voter and the Libertarian Party candidate for Secretary of
After approximately seven weeks of motions practice, multiple hearings, accelerated discovery, and a two-day bench trial
What follows below is a comprehensive review of the key events that transpired in this case leading up to trial, as well as a summary of the evidence presented at trial. Although these events occurred over the span of only a few months, there was—to say the least—a large volume of communications between the many lawyers on this case, motions made before the trial court, and legal briefing filed in the trial court (and later in this Court). A thorough recounting of those events and arguments is necessary to illuminate the record that was created before and during trial, and therefore constitutes the record we review today on appeal. In light of that record, the relevant statutes, and case law interpreting those statutes, and given our review of the trial court's factual findings and legal conclusions in this case, we affirm the dismissal of Petitioners' petition.
Georgia held a statewide general election on November 6, 2018. On November 23, 2018, Petitioners timely filed a petition contesting the election for lieutenant governor, alleging three counts. Count 1, the state law election contest claim, alleged that the use of "defective, legally non-compliant, and malfunctioning DRE machines to conduct the Contested Election constituted `misconduct' and `irregularity' sufficient to change or place in doubt the result of the Contested Election" under OCGA § 21-2-522(1), and that the "malfunctioning DRE machines rejected legal votes or received illegal votes sufficient to change or place in doubt the result of the Contested Election" under OCGA § 21-2-522(3). Count 2, a federal claim under 42 USC § 1983, alleged that the use of defective DRE machines violated Petitioners' due process rights under the Fourteenth Amendment by
Five days later, on November 28, 2018, Petitioners filed a "Motion for Clarification and to Request Setting of Trial Date," in which they noted that they would "be filing a motion to inspect a sample population of the suspect electronic voting equipment to determine whether there is ... extant electronic evidence of the causes of the election machine malfunctions"; requested that the already-set hearing date of December 6, 2018 be "a preliminary hearing or status conference... to address preliminarily issues related to the trial of the matter, including stipulations, evidence, discovery, necessary parties, etc., as well as any special issues raised under the election contest laws"; and asked the trial court to "fix a date for the trial itself, for two days no earlier than the week of December 10, 2018, and taking into consideration realistic dates for necessary forensic examination and submission of pre-trial briefing."
The next day, Petitioners filed an "Emergency Motion for Inspection of Electronic Election Equipment and Production of Documents" ("motion for inspection"). In that motion, Petitioners argued that they needed an "expert forensic examination" of electronic voting equipment and of related election records, including the internal memory of electronic voting machines as well as paper records that could provide evidence of voting irregularities (and their causes) in the November 6 election. Specifically, Petitioners requested the "inspection, sampling and copying of the electronic election equipment and related election records" for
Petitioners also requested the same type of discovery for a list of select DRE machines from various precincts in 20 different counties across the state and all the DRE machines from 20 different precincts
That same day—November 29, 2018—the case was reassigned to the Seventh Judicial Administrative district; Senior Superior Court Judge Adele Grubbs was appointed to
On December 4, 2018, the Secretary of State moved to dismiss the petition, arguing (among other things) that the Secretary was an improper party to the state election contest claim; the Coalition lacked standing to bring a state election contest claim; Petitioners failed to state a claim for their state election contest claim; Petitioners failed to name other county election superintendents, who were necessary parties; and Petitioners failed sufficiently to allege federal claims.
The trial court held a status conference the next day and set a December 20, 2018 filing deadline for motions; a January 9, 2019 hearing date for motions; and a January 17, 2019 trial date. Petitioners did not object to that timeline, which set the trial date more than a month after the date Petitioners had originally requested.
On December 20, 2018, three other defendants —the Gwinnett and Fulton County Boards and Lieutenant Governor-elect Duncan —also moved to dismiss the petition. Various of those defendants joined the Secretary of State's motion in full or in part, and they separately contended, among other things, that Petitioners failed to serve properly all of the defendants. In a written response, Petitioners conceded that the Coalition for Good Governance—the lead petitioner in the case—lacked standing to bring a state election contest claim, but maintained that the Coalition had standing to bring the two federal claims and that, as "`electors' under the statute," the other individual petitioners were proper parties under OCGA § 21-2-521 to bring the state law election contest claim. On December 27, 2018, the trial court granted Petitioners' motion to voluntarily dismiss the DeKalb County Board of Registration and Elections as a defendant. At that point, there still remained Petitioners' single state law election contest claim and two federal claims against defendants the Secretary of State, the Gwinnett and Fulton County Boards, and Lieutenant Governor-elect Duncan.
On January 9, 2019, the trial court heard argument on Petitioners' motion for inspection and on Defendants' motions to dismiss.
At the hearing, the trial court orally granted in part, denied in part, and reserved ruling on in part Defendants' motions to dismiss, informing the parties that it would deny Defendants' motions to dismiss for failure to state a claim on the state law election contest count but grant Defendants' motions to dismiss the Secretary of State as a defendant. The trial court entered an order dismissing Petitioners' two federal counts for failure to state a claim later that afternoon and issued rulings on the remainder of Defendants' motions to dismiss as part of the January 11 discovery order discussed more fully below in Division 1(d).
In support of their motion to inspect, Petitioners argued at the January 9 hearing that they wanted a "full forensic examination" of DRE machines from the various precincts and counties listed in their motion. According to Petitioners, this would require "computer experts to look at the internal memory and programming" of the DRE machines. Petitioners also requested "general discovery of documentary evidence relating to the programming of the machines," including "discovery of the GEMS databases."
On January 11—six days before the scheduled trial date—the trial court entered a written order granting in part Petitioners' motion for inspection. But shortly before it did, Petitioners emailed the trial judge and the parties to provide advance notice that they "anticipate[d] filing" that afternoon a request for "continuance of the trial." Less than one hour later, the trial judge responded by email and informed the parties that "[t]here will b[e] no continuance" because of the "expedited" nature of the "election contest." The trial judge again stated that if there were "issue[s] as the Plaintiffs conduct[ed]... discovery," she would "take them up by e[-]mail or conference call if necessary."
Shortly thereafter, the trial court entered an Order on Pending Motions, which included rulings on Petitioners' motion for inspection. Granting in part Petitioners' motion, the trial court permitted two categories of inspection. First, it permitted the remaining Petitioners "to inspect the `GEMS' reports or complete electronic copies thereof for the November 2018 elections that are maintained by the Gwinnett County Board and the Fulton County Board," and specifically, the "a. Base Precincts With Races Report[;] b. Ballot Image Report[;] c. Vote Center With Cards Report[;] d. Statement of Votes Cast Report[; and] e. Summary Report." It also restricted the examination by permitting "[o]nly personnel of the Secretary of State or Fulton or Gwinnett Counties [to] access the GEMS servers directly in connection with this inspection."
Second, the trial court permitted inspection of certain DRE machines in "post-election mode." Specifically, it authorized Petitioners to inspect DRE units "using post-election memory cards that were used in the voting locations" identified in paragraphs 40, 41, 44, 45, and 46 of the Petitioners' petition —i.e., DRE machines in specific polling places in Fulton, Henry, and Worth Counties. The trial court ruled that Petitioners could "examine the Internal memory storage of each such DRE unit," but made clear that Petitioners were "not to in any way damage the DRE machines or the information contained
Following the January 9 hearing and the trial court's January 11 order, the parties communicated about—and disagreed about— the proper protocol for conducting DRE machine inspections. Notwithstanding these disagreements, representatives of the Fulton County Board and the Secretary of State agreed to meet with Petitioners' retained expert on Monday, January 14, to conduct an examination of the County's voting machines.
But Petitioners later complained that they were "unable to conduct any examination or investigation of the DRE machines or their internal memory" because Defendants did not make "a complete and accurate electronic copy ... of the internal memory," did not allow Petitioners' expert "to instruct County personnel on how to make the copy ... without damage to the files or machine," and did not make electronic election records available. To that end, Petitioners' expert recounted in a January 14 email to Petitioners' counsel that Defendants were unwilling to implement (without first consulting with their counsel) a proposal to copy the internal memories of selected DRE machines by physically removing the outside cases from the machines, accessing the machines' motherboards, and then inserting either a chip or an adapter into the machines—a process that Petitioners' expert acknowledged could create a "security vulnerability." Petitioners' expert therefore determined that he was unable to conduct an inspection of the DRE machines and left. According to Petitioners' motion for continuance filed later that night, "Plaintiffs' expert left the premises without having been able to examine the internal memory of the DRE machines, which review has to precede any other examination of the DREs."
Later that night, Petitioners filed a motion to continue the January 17 trial to a later date.
The remaining Defendants and the Secretary of State filed responses in opposition to Petitioners' motion for continuance the next day, arguing that the Secretary's proposed protocol for DRE machine inspection complied with the trial court's January 11 order —but that when Defendants "offered to allow Plaintiffs to inspect the DRE machines as the Secretary suggested, Plaintiffs refused." Noting that Petitioners did not object to the "expedited calendar" when the January 9 hearing date and January 17 trial date were initially set, Defendants argued that Petitioners ignored the trial court's instructions to bring discovery issues to the court's attention by email or conference call and that they instead filed a motion for continuance as an "attempt to delay" the trial date, even though Petitioners' "discovery needs were known to them" when they filed their petition in late November.
Early on the morning of January 16, the trial court emailed the parties and once again stated that the case would not be continued, and later that morning, the trial court entered a written order denying Petitioners' motion. But between the time the trial court had informed the parties that the case would not be continued and entry of a written order denying Petitioners' requested continuance, Petitioners filed a "Motion to Compel and for Additional Discovery," arguing that Defendants had refused to allow Petitioners to examine the internal memory of the DRE machines (as required by the January 11 order), and again requesting production of the entire Gwinnett and Fulton County GEMS databases, as opposed to reports generated from those databases. Later that afternoon, Petitioners also filed a demand for a jury trial under OCGA § 21-2-526(a).
Defendants opposed both motions, contending that they had complied with the trial court's discovery order; that Petitioners were not entitled to relief; that Petitioners were employing "attempts to delay" the proceedings; and that Petitioners were actually seeking reconsideration of the trial court's January 11 discovery order requiring production of certain GEMS reports from Gwinnett and Fulton Counties.
On January 17, 2019—the day trial was scheduled to begin—the trial court addressed the parties' outstanding motions from the bench before starting trial. The court denied Petitioners' motion to compel and for additional discovery, struck Petitioners' demand for a jury trial, and denied another request for additional discovery that Petitioners made orally that morning. The trial began as scheduled on January 17.
Over the course of trial, Petitioners presented documentary evidence as well as testimony from seven lay witnesses and one expert witness in support of their claim that the state's electronic voting system was so defective that it cast doubt on the election for lieutenant governor and required the election to be overturned.
One of Petitioners' lay witnesses was a poll watcher who testified that she had personally observed one DRE machine that would not print the poll tape after the election and that a precinct poll manager had stated that "there were multiple technical issues" on election day.
Petitioners also called a voter who testified that when she voted on a DRE machine, the lieutenant governor's race did not initially appear on her electronic ballot. But the voter also testified that when she went back to the
Petitioners also called Michael Barnes, Director of the Center for Election Systems in the Secretary of State's Office, a lay witness who testified primarily about DRE machines and ballot design. With respect to the accuracy of DRE machines, Barnes testified that in all of the pre-election-mode and election-mode tests of DRE machines that he had "been involved with" since 2001, he "never encountered a situation where [he] put in one particular vote and ... it came out differently in the report." Specifically, for the 2018 election, the pre-election and election-day testing showed the DRE machines were properly counting votes, including for the lieutenant governor's race. He also testified that Georgia's electronic voting system was a "closed system" that could not be "hack[ed]" remotely, and that although the Secretary of State's Office had not conducted a "forensic analysis" of the DRE voting systems either before or after the 2018 election, it did conduct a "recertification" of the voting system in 2017—and examined the equipment in several counties—and identified no problems. Moreover, the Secretary of State's Office ran reports for the Fulton and Gwinnett County Boards that confirmed that the lieutenant governor's race "appeared on every electronic ballot" in those counties, and that "all memory cards that were created that would have collected ... votes [had] been uploaded and accounted for by GEMS."
With respect to the ballot design, Barnes testified that after the election, there was some concern that the ballot design could have "been confusing, especially for new voters," and caused voters inadvertently to skip the lieutenant governor's race because they thought they were "voting for a ticket" that included the governor's race. He contrasted the 2018 general election with general elections conducted in Georgia in 2010 and 2014, testifying that in the 2018 general election, the DRE machines were programmed to display only the candidates for governor and lieutenant governor on the first screen, and that the two sets of candidates appeared side-by-side with the Democratic and Republican candidates for each race positioned horizontally across from each other. By contrast, in 2010 and 2014, the lieutenant governor's race did not appear side-by-side with the governor's race on the same DRE machine screen; instead, a "U.S. Senate race and the governor's race [were] on the first page" and "the race for lieutenant governor and other" races were on the next page. Barnes testified that although election officials had "been very pleased with the two-column ballot," there was "a possibility that it could have been confusing" in the 2018 general election, "especially for new voters that are voting for the first time in the state of Georgia ... [who] may feel like because the Republican candidates are line[d] up and the Democratic candidates are lin[ed] up that you make one selection and you're voting for a ticket," like in "many states" other than Georgia.
Petitioners also called as a lay witness the Fulton County Director of Registration and Elections, who testified that Fulton County did not examine its GEMS database or memory cards for malware after 2016, review its GEMS database for coding errors prior to the 2018 election, or examine the DRE machines in Fulton County after the 2018 election. On cross-examination, he clarified that Fulton County conducted "logic and accuracy tests" on all of its DRE machines before the 2018 election, that all of the DRE machines passed those tests, and that Fulton County had never experienced software issues or
Petitioners also called Marilyn Marks, Executive Director of the by-then-dismissed petitioner Coalition for Good Governance, who also served as a poll watcher for Georgia's 2018 general election. Petitioners attempted to qualify Marks as an expert in "DRE machines generally and their use in Georgia and the practices and procedures of the State of Georgia for paper ballots and for electronic ballots," but—after Defendants conducted a voir dire about Marks's experience and credentials —the trial court denied Petitioners' motion, allowing Marks to testify only as a lay witness. Among other things, she testified that she observed three DRE machine malfunctions in which the screen displayed "vote cancelled" and a "big red warning sign" before ceasing to work.
Also testifying for Petitioners was Christopher Brill, a political consultant whom Petitioners twice tendered as an expert qualified to discuss "under-voting and the particular reasons for under-voting," including the reasons or possible reasons for the "under-vote" in the contested election, but whom the court twice refused to qualify as an expert because opinion regarding the "reasons why" there was an undervote was not "an area of expertise."
Brill also testified about the difference in undervotes between votes cast electronically and those cast on paper absentee ballots. He testified that "paper voting" for lieutenant governor "had only a 1 percent under-vote" compared to the "electronic" voting, which "had over 4 percent," and that a differential of that magnitude did not appear in the races for Secretary of State or Attorney General, where the undervote percentages of electronic and paper voting were "relatively even" and "consistent." Brill testified that he had "never seen a type of under-vote where voters" skip one race but then vote at higher rates for other races farther down the ballot. On cross-examination, however, Brill agreed that Georgia's 2018 general election was "a very high turnout election," admitted that he did not consider the number of new voters in 2018 when he compared that election to prior elections, and acknowledged that Amico received more votes than some other statewide Democratic candidates. He also conceded that he had never conducted any analysis of ballot design in general.
Petitioners then sought to have Professor Philip Stark testify. However, Stark was available only by telephone or video conference, and Petitioners had not provided the notice required by Uniform Superior Court Rule 9.2(c) ("Any party desiring to call a witness by video conference shall file a notice of intention to present testimony by video conference at least thirty (30) days prior to the date scheduled for such testimony."). The trial court noted that although the case was "an expedited situation," Petitioners should have at least given notice at the January 9 hearing instead of "suddenly walk[ing] in [on] the afternoon of trial and say[ing] I want to call somebody." As a result, the court denied Petitioners' request to examine Stark by video conference, and he was not permitted to testify.
Petitioners then tendered, and the court qualified as "an expert on DREs," Matthew Bernhard, a Ph.D. candidate studying computer
On cross-examination, Bernhard admitted that he was not aware of "a single instance anywhere in Georgia where there was a piece of malware that was somehow propagated from a server that creates the ballot format, down through [the] memory card, onto the DRE." He also admitted that he was not aware of "an actual election" in which a vote cast on a DRE machine was not counted, though he explained "that's because of the way the machine [is] built, it's impossible to tell. You cannot know." He also conceded that the configuration of the electronic ballots in the 2018 general election was different than the configuration of the paper ballots, and that among all statewide races in the 2018 general election, Amico's vote total, as compared to other Democrats, was "somewhere in the middle of the pack."
At the close of evidence on January 18, Defendants moved for an involuntary dismissal of Petitioner's petition under OCGA § 9-11-41(b) ("After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence," defendants "may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine the facts and render judgment against the plaintiff[.]"). The trial court granted the motion orally and issued an order that day. In its order dismissing the petition, the trial court cited Hunt v. Crawford for the proposition that "[i]t is presumed that election results 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," and that "[t]he setting aside of an election in which the people have chosen their representative is a drastic remedy that should not be undertaken lightly." Hunt, 270 Ga. at 8, 10, 507 S.E.2d 723.
The trial court also made a number of factual findings. To begin, it found that Petitioners "presented evidence that the DRE system of voting used in Georgia has many problems and irregularities and is regarded as an outdated and inaccurate system of conducting a vote." It found that Petitioners had shown "five instances of problems with voting at two precincts"—specifically, that "of the 8 voting machines at the Winterville precinct in Clark[e] County[,] Georgia, 7 went decidedly Democratic and 1 went decidedly Republican." And it found that there was a 4.5 percent undervote between the elections for lieutenant governor and governor.
But the trial court also found that "[t]here was no evidence of misconduct, fraud, or irregularity by any primary or election official or officials," and, in acknowledging the vote totals and undervote in the lieutenant governor's election, concluded that the 123,172 vote-difference between Duncan and Amico and the undervote between the lieutenant governor's election and the governor's election "do not show any irregularity or illegality in themselves." The court thus concluded that Petitioners had not "shown any evidence that illegal votes have been received or legal votes rejected at the polls sufficient to
The trial court then went on to cite Fuller v. Thomas, 284 Ga. 397, 397-398, 667 S.E.2d 587 (2008), for the proposition that "where the focus is on improperly cast ballots or irregularities in the conduct of the election, the number of illegal or irregular ballots necessary to cast doubt on an election is derived by taking the difference between the total votes cast in the election and the race at issue, and adding the margin of victory in the race at issue." It then made the factual finding, unsupported by citations to the record, that "the most votes that the Plaintiff has shown that could be in any way arguably considered irregular or illegal is approximately 32,000 votes," assuming that "all such votes would have been cast for Sarah Amico." Implicit in its order was that Petitioners' best-case evidentiary showing of irregular or illegal votes could not overcome the 123,172-vote difference between Duncan and Amico. The trial court therefore dismissed Petitioners' petition.
On appeal, Petitioners enumerate a number of alleged errors related to the trial court's handling of pre-trial discovery. Specifically, Petitioners argue that the trial court erred by: (a) failing to allow reasonable time for discovery; (b) denying Petitioners' motion for continuance; (c) refusing to allow discovery of the GEMS database; and (d) denying Petitioners' motion to compel Defendants to allow inspection of the internal memories of designated DRE machines. But after reviewing the record, the appellate briefs, and the relevant law, we cannot say that the trial court abused its broad discretion in managing pre-trial discovery.
To address those claims we must examine, as an initial matter, the interplay between Georgia's Civil Practice Act ("CPA") and its Election Code. The CPA "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict [with it] are expressly prescribed by law." OCGA § 9-11-81. Thus, the CPA provides background discovery rules in election contests—which are civil actions—except to the extent the Election Code sets forth "specific rules of practice and procedure" that conflict with the CPA. Id.
The Election Code, for its part, vests trial courts presiding over election contests with the "plenary power ... to make, issue, and enforce all necessary orders, rules, processes, and decrees for a full and proper understanding and final determination and enforcement of the decision of every such case" within the framework of Georgia civil practice or as "necessary and proper to carry out" the chapter of the Georgia Code pertaining to contested elections. OCGA § 21-2-525(b). Although the relevant provisions of the Election Code do not mention the term "discovery," let alone set out election-contest-specific party discovery procedures, see generally OCGA § 21-2-525, the Code does give trial courts the "authority ... to compel the production of evidence which may be required at such hearing, in like manner and to the same extent as in other civil cases litigated before such court." OCGA § 21-2-525(b). And most importantly for this case, the Election Code by its plain terms both authorizes and compels trial courts to conduct election contests expeditiously. As just one conspicuous example, OCGA § 21-2-525(b) contains the unusual provision that trial courts "shall have authority... to proceed without delay to the hearing and determination of such contest, postponing for the purpose, if necessary, all other business."
In sum, "[t]he Election Code gives a trial court ample power and discretion to control the election contest process to insure that the proceedings are resolved in a timely manner." Payne, 267 Ga. at 875, 485 S.E.2d 723 (citing OCGA § 21-2-525(c)); cf. Head v. Williams, 269 Ga. 894, 895, 506 S.E.2d 863 (1998) ("[T]he purpose of the [Election Code] procedural rules [is] to have election contests resolved as quickly as possible."). And, generally speaking, trial courts have broad discretion over the types of scheduling and discovery-related issues that Petitioners complain about here. See, e.g., Resurgens, P.C. v. Elliott, 301 Ga. 589, 597, 800 S.E.2d 580 (2017) ("A trial court has broad discretion to control discovery ... and this Court will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion.") (citation and punctuation omitted); Talmadge v. Elson Properties, 279 Ga. 268, 270, 612 S.E.2d 780 (2005) ("Granting or refusing a continuance is a matter within the sound discretion of the trial court.") (citation and punctuation omitted); Housing Auth. v. MMT Enterprises, 267 Ga. 129, 129, 475 S.E.2d 642 (1996) (denial of motion to compel discovery reviewed for abuse of discretion); Woelper v. Piedmont Cotton Mills Inc., 266 Ga. 472, 473, 467 S.E.2d 517 (1996) ("A trial court has wide discretion to shorten, extend, or reopen the time for discovery.").
Petitioners contend that the trial court failed to provide them "reasonable time for discovery," as contemplated by the CPA, when it entered an order permitting discovery only six days (and only three business days) before the scheduled trial in a case "involving technology of this complexity." We see no abuse of discretion.
Petitioners primarily rely on the portion of the CPA that provides that "the court shall in all cases afford to the parties reasonable time for discovery procedures," OCGA § 9-11-40(a) (emphasis supplied), to argue that although the Election Code "alters civil practice in some other ways, it does not curtail the right to discovery." They also cite Mead v. Sheffield, 278 Ga. 268, 601 S.E.2d 99 (2004), and Taggart v. Phillips, 242 Ga. 454, 249 S.E.2d 245 (1978), as examples of election contests where the parties were "given reasonable discovery," which Petitioners contend did not happen here.
To begin, Petitioners' argument disregards the canon that specific statutes prevail over general ones
Other aspects of the Election Code also demonstrate that the timeline for election contests does not mirror the typical timeline for other civil proceedings. For example, a petition contesting the result of an election must be filed "within five days after the official consolidation of the returns of that particular office ... and certification thereof by the election official having responsibility for taking such action under this chapter," OCGA § 21-2-524(a); the court clerk must
Given all of this, it is apparent that, in this context, there is no definite, one-size-fits-all amount of time that satisfies the "reasonable time for discovery" set forth in the CPA. Instead, what constitutes a "reasonable time" for a contested election must be evaluated in light of the specific facts and circumstances of an expedited proceeding that is markedly different from most other civil proceedings, and in light of the statutory authority given to trial courts presiding over election contests.
Now turning to the facts here: from the outset of this case, Petitioners knew they had the burden of presenting evidence to support the allegations in their petition, and they had 55 days between the day they filed their petition (November 23, 2018) and the day of trial (January 17, 2019). Moreover, the trial court scheduled the January 17 trial date during the December 5, 2018 status conference, giving Petitioners 43 days' notice before trial.
Petitioners' citations to Mead and Taggart are unavailing. In Mead, the petitioner contested the result of a statewide Court of Appeals election based on the omission of his name from 481 absentee ballots cast in one county; discovery was not an issue on appeal, and the opinion says nothing about how long the parties engaged in discovery below. See 278 Ga. at 268-279, 601 S.E.2d 99. And in Taggart, the petitioner contested the result of a State House district election based on alleged illegal votes and misalignment of his name on one voting machine; there was no mention of the timing of discovery except for
Petitioners parlay their complaints about the length of discovery into a separate enumeration of error pertaining to the trial court's "[r]efusal" to grant Petitioners' motion to continue the January 17 trial. We again disagree and conclude that the trial court did not abuse its discretion.
Petitioners cite no authority to support this enumeration, and instead argue only that it was error for the trial court to have suggested at the December 5 status conference that the trial date could be moved ("We can move [it]"), and to state in a December 7 email that "[i]f it is deemed necessary to move the trial date" at the January 9 hearing, "the Court will consider it," before ultimately denying Petitioners' motion to continue on January 16. But in addition to citing no authority, Petitioners misconstrue the trial court's initial statements as apparent promises, and they discount the substantial discretion the trial court expressly retained to "consider" whether postponing trial was "necessary." Indeed, these statements— which were made during some of the first interactions between Petitioners and the trial court—must be viewed in context. So viewed, the statements Petitioners highlight are best characterized as preliminary statements the trial court made at the outset of the election contest that were later superseded by the trial court's repeated insistence—based on the facts of this case and the statutory mandates of the Election Code—that it would not delay the scheduled trial date.
Our precedent also supports the trial court's authority in this regard. In Head, we held that an election contest hearing (i.e., trial) "may be held on the same day that the defendants are required to file an answer if the parties have had reasonable notice of the hearing date." 269 Ga. at 894, 506 S.E.2d 863.
Petitioners argue that the trial court erred by not allowing them discovery of the GEMS database itself, and by instead requiring Defendants only to produce certain reports generated from the GEMS database that Petitioners claim "are already public records" and "would not reveal any programming flaw in the system." To support their argument, Petitioners point to OCGA § 9-11-26(b)(1), which provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action," and also to this Court's case law construing relevance "`broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" Bowden v. The Medical Center, Inc., 297 Ga. 285, 291, 773 S.E.2d 692 (2015) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978)). According to Petitioners, the trial court's decision to order production only of certain reports generated by the GEMS database "constituted reversible error" because Petitioners had explained —with support from expert affidavits —that the GEMS database was the "first, most efficient, and easiest place an expert would look for the cause and to quantify the impact of [voting] irregularities." Petitioners further contend that the GEMS data they requested "could have [been] produced ... within minutes" and that the GEMS database could have been "examined forensically in a matter of days." We conclude that the trial court did not abuse its discretion in limiting inspection of the GEMS database.
To begin, Petitioners' relevance argument must be viewed against the backdrop of their counsel's admission at the January 9 motions hearing that it was "possible," but "I won't say likely," that discovery of the GEMS database would reveal programming mistakes "indicat[ing] that there's [a] system[-]wide failure." Moreover, Petitioners' argument almost completely discounts the factors—apart from relevance—that the trial court was authorized to consider when evaluating Petitioners' requested discovery. Cf. OCGA § 9-11-26(c) (authorizing trial courts to issue protective orders and to limit discovery by, among other things, ordering discovery "only on specified terms and conditions"; "only by a method of discovery other than that selected by the party seeking discovery"; "conducted with no one present except persons designated by the court"; or conducted so "that a trade secret or other confidential ... information not be disclosed or be disclosed only in a designated way.").
Here, for example, the record shows that the court balanced Petitioners' arguments for discovery of the entire GEMS database against the Defendants' arguments about "security concerns" raised by the "sensitive" and "highly confidential"
A trial court's substantial discretion over the discovery process includes balancing competing interests related to a party's discovery requests. See McGinn v. McGinn, 273 Ga. 292, 293, 540 S.E.2d 604 (2001) (noting that trial court has an "obligation to assure that the scope of the discovery is restricted to the extent necessary to prevent an unreasonable intrusion into the defendant's privacy") (citation and punctuation omitted); Atlanta Journal-Constitution v. Jewell, 251 Ga.App. 808, 812, 555 S.E.2d 175 (2001) (recognizing "when parties seek discovery of unprivileged but sensitive materials, the trial court must balance the requesting party's specific need for the material against the harm that would result by its disclosure," even when the requested material is relevant to the case). Cf. Smith, 288 Ga. App. at 574-578, 654 S.E.2d 469. Here, the record shows that the trial court acted within its authority when it evaluated the relevance of Petitioners' initial discovery requests and ordered discovery of certain aspects of the GEMS database, thus allowing Petitioners to explore their allegations of programming errors and irregularities, but also limited that discovery in light of other concerns, including election security. To the extent Petitioners were unhappy with the scope of the discovery the trial court granted after weighing the relevant considerations, they could have availed themselves of the discovery that was offered and then gone back to the trial court to make a further showing of why—based on the limited discovery the trial court granted and that the Petitioners conducted—such discovery was inadequate. But instead of taking that tack, the record shows that Petitioners walked away—literally and metaphorically— without engaging in the discovery that the trial court granted, choosing instead to move to compel Defendants to conduct discovery on Petitioners' desired terms (see more in Division 2(d) below), even though Petitioners had not availed themselves of much of the discovery offered to them at that point in the expedited proceedings. Under these circumstances, we cannot say that the trial court abused its discretion, and this enumeration of error therefore fails.
Petitioners argue that the trial court abused its discretion when it denied their motion to compel. Petitioners' chief complaint is that the trial court denied their motion after Defendants did not allow Petitioners to "examine the Internal memory storage of each DRE unit," which the trial court's January 11 order permitted. According to Petitioners, the trial court's failure to compel examination of DRE internal memory storage resulted in their being "completely denied discovery." For the reasons explained below, we disagree.
To review, in its January 11 order, the trial court ruled that Petitioners could "examine the Internal memory storage of each such DRE unit." But it also ordered Petitioners "not to in any way damage the DRE machines or the information contained therein" and prohibited Petitioners from "copy[ing], imag[ing], sav[ing], or retain[ing] the DRE machines or the information contained therein," and from "upload[ing] or introduc[ing] any information into the DRE machines."
In election contests, as in other civil cases, we review a trial court's ruling on a party's motion to compel inspection of evidence for an abuse of discretion. See Housing Authority, 267 Ga. at 129, 475 S.E.2d 642 (denial of motion to compel discovery reviewed for abuse of discretion); Payne, 267 Ga. at 875, 485 S.E.2d 723 (noting the "ample power and discretion" of trial courts to control the election contest process to ensure the timely resolution of election contests); Simon v. Murphy, 350 Ga.App. 291, 296, 829 S.E.2d 380 (2019) (on review of trial court's denial of a motion to compel, noting the trial court's "broad discretion") (citation and punctuation omitted).
On appeal, Petitioners contend that the trial court "directly contra[dicted]" its own January 11 order when it denied the January 16 motion to compel, because the January 11 order authorized examination of DRE machines' internal memory, yet the court commented (in denying Petitioners' motion) that it had not ordered "a forensic investigation" of the machines. We see no abuse of discretion, in large part because we discern no such contradiction. Indeed, the trial court's January 11 order did not expressly authorize a "forensic investigation," as Petitioners claim; it authorized examination of the DRE machines' internal memory, but with very specific limitations on how Petitioners could carry out that examination.
We also note that, as a practical matter, it is especially difficult for Petitioners to show that the trial court abused its discretion when Petitioners complained that the discovery the trial court ordered was not sufficient (or not offered in a sufficient form), but did not heed the trial court's repeated admonition to bring discovery disputes to it by
After a comprehensive review of Petitioners' claims of trial-court error related to pre-trial discovery, we have concluded that—under the facts and circumstances of this election contest—the trial court did not abuse its broad discretion in managing discovery. As a result, Petitioners are not entitled to a remand for more discovery to expand the record, and we consider only the evidence the parties presented at trial in evaluating the trial court's grant of Defendants' motion to involuntarily dismiss Petitioners' petition.
Petitioners also argue that the trial court committed reversible error (a) by finding that "the most votes that the [Petitioners have] shown that could be in any way arguably considered irregular or illegal is approximately 32,000 votes," a factual finding that Petitioners claim is clearly erroneous, and (b) by reciting the mathematical formula set out in Fuller, 284 Ga. at 397-398, 667 S.E.2d 587—which Petitioners claim is the incorrect legal standard—in rejecting their claim of systematic irregularities, instead of determining whether Petitioners showed that Georgia's electronic voting system was so defective as to cast doubt on the result of the election for lieutenant governor.
We examine these claims of error against a backdrop of statutory law and precedent interpreting those statutes. As relevant here, an election may be contested on the grounds of "[m]isconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result," OCGA § 21-2-522(1), or "[w]hen illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result," id. § 21-2-522(3). But because—as the trial court recognized— "[t]he setting aside of an election in which the people have chosen their representative is a drastic remedy," it "should not be undertaken lightly, but instead should be reserved for cases in which a person challenging an
But that is not all. We have explained that "[i]t is not sufficient to show irregularities which simply erode confidence in the outcome of the election," and that "[e]lections cannot be overturned on the basis of mere speculation." Meade, 293 Ga. at 149, 745 S.E.2d 279 (punctuation and citation omitted); see also Hunt, 270 Ga. at 9, 507 S.E.2d 723 (election outcome cannot "be nullified based merely upon speculation"). Moreover, a "trial court's findings in an election contest will not be disturbed unless clearly erroneous." Banker, 278 Ga. at 533, 604 S.E.2d 165 (citation and punctuation omitted).
Historically, we have recognized two election-contest paradigms in our case law. See Meade, 293 Ga. at 143, 745 S.E.2d 279 (noting that "[t]his Court has set aside elections under two different circumstances"). The first paradigm—which includes the vast majority of election contest cases—pertains to allegations of illegal votes, irregularly recorded votes, and illegal or irregular ballots. In those cases, which involve the types of allegations that may be proven or disproven by examining or counting a specific number of ballots, "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 on the election.'" Id. (quoting McCranie v. Mullis, 267 Ga. 416, 416, 478 S.E.2d 377 (1996), and citing McIntosh County Bd. of Elections v. Deverger, 282 Ga. 566, 651 S.E.2d 671 (2007); Whittington v. Mathis, 253 Ga. 653, 324 S.E.2d 727 (1985); and Bell v. Cronic, 248 Ga. 457, 283 S.E.2d 476 (1981)).
Within that context, the party contesting an election generally must "show a specific number of illegal or irregular ballots," Middleton v. Smith, 273 Ga. 202, 203, 539 S.E.2d 163 (2000), or a specific number of "voters [who] voted illegally or were irregularly recorded [or rejected]," Howell v. Fears, 275 Ga. 627, 627-628, 571 S.E.2d 392 (2002). See also Deverger, 282 Ga. at 566, 651 S.E.2d 671 (in an election contest based on allegations of illegally cast or wrongfully rejected votes in a race for county commissioner, petitioner was required to "establish that sufficient legal votes were rejected to change or place in doubt the result"). That number, in turn, must be "sufficient to place the result" of the contested election in doubt. Taggart, 242 Ga. at 486, 249 S.E.2d 268. The party contesting the election is not, however, required to show how votes would have been cast had the ballots been regular or had the votes not been rejected wrongfully. See Mead, 278 Ga. at 271, 601 S.E.2d 99; Deverger, 282 Ga. at 566, 651 S.E.2d 671. We have applied this legal standard when, for example, a petitioner claims that a specific number of votes were wrongfully rejected, Deverger, 282 Ga. at 566-567, 651 S.E.2d 671; that a certain number of ballots omitted a candidate's name, Mead, 278 Ga. at 268, 271, 601 S.E.2d 99; or that certain ballots omitted a particular race, Howell, 275 Ga. at 627-628, 571 S.E.2d 392.
The second paradigm involves cases where a party alleges systemic irregularities in the election process that may not be measurable in the same discrete manner that is used in cases falling within the first paradigm. Under this second set of circumstances—which we have identified in far fewer cases—we have "recognized that the result of an election may be voided where systemic irregularities in the process of the election are sufficiently egregious to cast doubt on the result." Meade, 293 Ga. at 143, 745 S.E.2d 279 (citing Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984)). Implicit in this line of cases is that the alleged systemic irregularities caused the election result to be placed in doubt. See Meade, 293 Ga. at 143, 745 S.E.2d 279.
However, we are aware of only one case in which we have applied this legal standard to order a new election. See Meade, 293 Ga. at 148-149, 745 S.E.2d 279. In Stiles v. Earnest, the petitioner alleged that certain school officials who "checked off voters from the voting lists" within 250 feet of various polling places changed or placed in doubt the result of a referendum to elect members of a county school board, which failed by 17 votes. 252 Ga. at 261, 312 S.E.2d 337. We concluded that the alleged "illegality" was "sufficient to change or place in doubt the result" of the election and ordered another referendum to be held. Id.
By contrast, in Middleton v. Smith, a case involving an election for county commissioner and court clerk, we reversed a trial court order invalidating the election where the margins of victory were 20 votes and 117 votes, respectively, and a petitioner had alleged that a county sheriff's misconduct "put in doubt the validity of all 506 votes cast" from a particular precinct. 273 Ga. at 203, 539 S.E.2d 163. There, we concluded that the allegations that "enough electors voted illegally so as to change or cast doubt on the result of the election" were "based on mere speculation," even though the trial court made multiple findings of "irregularities"— including that the county sheriff "mailed approximately 1,200 letters to voters" on official stationery "urging them to vote" for the candidates who ultimately prevailed and campaigned for those candidates "within 150 feet of the precinct," and that the sheriff was statutorily "responsible for maintaining order at the polling places."
Similarly, in Meade v. Williamson, a case in which there was a 39-vote margin of victory in a primary runoff election for county sheriff, we concluded that the "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." 293 Ga. at 150, 745 S.E.2d 279. There, the petitioner had
Id. As a result, we concluded that "[t]he evidence [fell] short of demonstrating systemic irregularities in the election process." Id.
Petitioners alleged a claim under both election contest paradigms before the trial court, offering a few examples of specific instances of irregularities in voting and also claiming that defects in Georgia's electronic voting system cast doubt on the election as a whole. But the main thrust of Petitioners' arguments to the trial court was that their case was one of systemic failure and not one where "hard" or "tangible" evidence would prove voting defects. Petitioners in fact argued at trial that this case is "not simple math," but rather a case that relies on voting patterns—i.e., that "the under-vote shows that the machines simply were not working" —"to cast the entire election in doubt." (Emphasis supplied.)
Before this Court, however, Petitioners have presented a hybrid set of arguments, contending that at least some aspects of the two historical paradigms in this Court's election contest cases (i.e., specific quantities of irregular votes and systemic irregularities) apply in this case and together require invalidation of the November 6, 2018 election for lieutenant governor. Although Petitioners have fused these arguments in their appellate briefing, we address each enumeration— and the relevant law—in turn.
In its order granting Defendants' motion for involuntary dismissal, the trial court found that "the most votes that the Plaintiff has shown that could be in any way arguably considered irregular or illegal is approximately 32,000 votes." Petitioners argue that this finding is clearly erroneous, and we agree.
After an exhaustive review of the record, we are unable to identify any evidence presented to the trial court that supports its finding, nor have Defendants pointed to any. As best we can tell, the "approximately 32,000" number originated from trial testimony offered by Petitioners' lay witness, Christopher Brill.
Nevertheless, even a clearly erroneous factual finding does not always require reversing a trial court's judgment. See, e.g., Deverger, 282 Ga. at 566-568, 651 S.E.2d 671 (although trial court erred in finding certain votes were illegally cast, evidence showed that a sufficient number of other votes were wrongfully rejected to place the election results in doubt, resulting in affirmance of trial court's ruling). That is especially true when the trial court's ultimate legal conclusions are correct based on the evidence presented. See Banker, 278 Ga. at 535, 604 S.E.2d 165 (trial court's erroneous conclusion that candidate's notice of withdrawal from election was sufficient "does not necessarily require reversal of its judgment," and did not require reversal there because petitioner still failed to carry burden of showing irregularity sufficient to place in doubt result of election); see also Tolbert v. Toole, 296 Ga. 357, 361-362, 767 S.E.2d 24 (2014) (concluding that habeas court "reached the right result," and therefore affirming that ruling, even though it was based upon a "mistaken" factual assumption).
Petitioners also argue that the trial court erred by applying "the incorrect legal standards in rejecting [their] claim that systemic irregularities in the State of Georgia's electronic voting system rendered the system so defective as to cast doubt on the result of the election." Specifically, Petitioners complain that the trial court recited the mathematical standard set out in Fuller v. Thomas: "the number of illegal or irregular ballots necessary to cast doubt on an election is derived by taking the difference between the total votes cast in the election and the race at issue, and adding the margin of victory in the race at issue." 284 Ga. at 397-398, 667 S.E.2d 587. Arguing that they are not required to prove by "rote application of a formula" that the election result would have been different but for the alleged irregularity, see e.g., Stiles, 252 Ga. at 261, 312 S.E.2d 337, Petitioners contend that they need only offer evidence of a material irregularity sufficient to place in doubt the result of the election—a standard Petitioners assert they have met. We disagree that Petitioners have offered sufficient evidence to place in doubt the result of the 2018 general election, and for that reason we affirm the trial court's dismissal of the petition.
We first turn to Petitioners' argument that the trial court erred by quoting Fuller in its dismissal order. To begin, we conclude that the mathematical formula used in Fuller should not be used to evaluate whether a party has cast sufficient doubt on the result of an election based on allegations of systemic irregularities. Applying the Fuller test (or for that matter, any inflexible mathematical formula) is antithetical to the second paradigm of election contest cases, where allegations of systemic irregularities may not be measurable in the same discrete manner that the majority of election contest cases are.
To the extent Petitioners offered evidence of specific instances of irregular votes, the trial court did not err in concluding that Petitioners failed to meet their burden of placing in doubt the result of the 2018 general election on the basis of that evidence. Notably, the trial court made specific factual findings about alleged voting irregularities and credited certain evidence Petitioners presented at trial: it found that Petitioners had showed "five instances of problems with voting at two precincts" and that "of the 8 voting machines" at a particular precinct, "7 went decidedly Democratic and 1 went decidedly Republican." But it also found that "[t]here was no evidence of misconduct, fraud, or irregularity by any primary or election official or officials." Given these factual findings and the small number of irregularities involved, we cannot say that the trial court erred as a matter of law when it concluded that the Petitioners had "not shown any evidence that illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result in the race for Lieutenant Governor." Whether the trial court should have cited a case other than Fuller does not affect the court's ultimate legal conclusion, especially where there is no serious contention that the evidence offered at trial established enough instances of illegal or irregular votes to overcome a margin of victory of 123,172 votes.
The heart of Petitioners' case, and their theory of the case with respect to systemic voting irregularities, is best summarized by their contention on appeal that they "established to a near metaphysical certainty that" Georgia's "profoundly vulnerable machines caused thousands of voters using electronic machines to either not vote for Lieutenant Governor or for those votes to not be counted." (Emphasis supplied.) But because that assertion is wholly unsupported by the record Petitioners created below, the trial court did not err when it concluded that Petitioners failed to meet their burden of showing an irregularity in Georgia's electronic voting system sufficient to cast doubt on the 2018 general election.
As an initial matter, we recognize that the trial court specifically found that Petitioners "did present[] evidence that the DRE system of voting used in Georgia has many problems and irregularities and is regarded as an outdated and inaccurate system of conducting a vote." The court also found that there was "a difference of 123,172 votes" received between Duncan and Amico; that there was a 4.5 percent undervote
Importantly, that conclusion acknowledges and rejects the Petitioners' core argument to
Moreover, inherent in Petitioners' argument is a set of assumptions that must be correct for Petitioners to prevail. Those assumptions include, for example, that the 0.8 percent average is, in fact, the correct number to use for the "historical undervote," as opposed to using the highest percentage undervote in the prior four general elections (which, according to the evidence Petitioners offered at trial, would be 1.2 percent
Just as in Meade, the "evidence of systemic misconduct ... is largely speculative and is insufficient to support [a] conclusion that irregularities in the election process were shown to cast doubt upon the results." 293 Ga. at 150, 745 S.E.2d 279; see also Fuller, 284 Ga. at 398, 667 S.E.2d 587 ("None of these alleged irregularities is specific enough to cast doubt on the results of the election."). And, as we have said before, "[e]lections cannot be overturned on the basis of mere speculation, or an appearance of impropriety in the election procedures." Middleton, 273 Ga. at 203, 539 S.E.2d 163 (citations omitted).
Because the evidence Petitioners presented at trial "failed to carry the burden of demonstrating the election results should be invalidated either by establishing a sufficient
Finally, Petitioners contend on appeal that the trial court erred in rejecting their demand for a jury trial under OCGA § 21-2-526(a). We disagree.
The Georgia Constitution states that "[t]he right to trial by jury shall remain inviolate." Ga. Const. of 1983, Art. I, Sec. I, Par. XI(a). In Bell v. Cronic, 248 Ga. 457, 458, 459, 283 S.E.2d 476 (1981), we held that, under the substantively identical provision of our prior Constitution, "there is no constitutional right to a jury trial in an election contest proceeding," and that "the right can only exist by statute." In this regard, our Election Code provides:
OCGA § 21-2-526(a) (emphasis supplied). Therefore, "unlike other situations where demand alone is sufficient, here there are two requirements: 1) demand; and 2) determination that there are issues which under other laws of this State the litigant is entitled to have trial by a jury." Henderson v. County Bd. of Registration & Elections, 126 Ga.App. 280, 285, 190 S.E.2d 633 (1972).
Here, although Petitioners did make a demand for jury trial on the eve of trial, they did not point to any "laws of this state," OCGA § 21-2-526(a), that required a jury trial with respect to the types of issues presented in this election contest. Likewise, other than relying on the general proposition that "factual issues [are] for the jury," Petitioners point to no such "other laws" on appeal, and we have found none. Indeed, the types of issues Petitioners raise regularly have been adjudicated by trial courts without juries, as all of the election contest cases Petitioners cite in their appellate briefs—and those cited in this opinion—demonstrate. Accordingly, we conclude that the trial court did not err in denying Petitioners' demand for a jury trial.
Judgment affirmed.
All the Justices concur, except Melton, C. J., not participating.
As explained above in Division 2(a), we held in Head that the precursor to OCGA § 21-2-525(a) "provides a deadline by which the judge must set a date for a hearing." Head, 269 Ga. at 895, 506 S.E.2d 863. Given that OCGA § 21-2-525(a) also permits trial courts to "fix additional hearings at such other times and places as are necessary to decide the contest promptly," it is not entirely clear whether the hearing required to be set under the 20-day deadline must also be the actual trial on the election contest, but Head demonstrates that it can be. See Head, 269 Ga. at 894, 506 S.E.2d 863. We note that no party complains that the trial court in this case failed to meet the statutory requirements for setting hearings under OCGA § 21-2-525(a).
In light of our discussion above in footnote 32, some of us are unsure why trial courts should add to the margin of victory in a given race the number of undervotes for that particular race— i.e., the Fuller formula—instead of looking to the margin of victory as the touchstone inquiry for evaluating materiality in an election contest. Indeed, Fuller is an outlier among more recent election contest cases where we have looked to the margin of victory to establish the threshold of materiality that a petitioner must cross to cast sufficient doubt on an election based on allegations of illegal or irregular votes or ballots. See, e.g., Meade, 293 Ga. at 148, 745 S.E.2d 279; Deverger, 282 Ga. at 568, 651 S.E.2d 671; Mead, 278 Ga. at 268-271, 601 S.E.2d 99.
