Georgia: Votes For Deceased Candidate Void

The Georgia Supreme Court has held that votes cast for a deceased candidate do not count

Jerry NeSmith earned the support of a sufficient number of his community members to be elected as their district’s commissioner for the Athens-Clarke County Unified Government. Sadly, NeSmith died just three days before Election Day. In addition to the personal loss of his family and friends, NeSmith’s death before Election Day ultimately resulted in an electoral loss for his supporters, a number of whom joined to bring suit in superior court challenging the results of the election.

Because the applicable Georgia statutes dictate that votes cast on paper ballots for a candidate who has died before Election Day are void, none of the votes cast for NeSmith had legal effect.

Accordingly, for reasons more fully explained below, we determine that the Athens-Clarke County Board of Elections properly applied OCGA §§ 21-2-437 (d) and 21-2-438 (a) when it voided the votes cast for NeSmith and declared Jesse Houle the commissioner-elect for Athens-Clarke County Commission District 6. Moreover, we also hold that the Board’s application of those statutes in this case did not violate any rights of the appellants under the First or Fourteenth Amendments to the United States Constitution or the equal protection clause of the Georgia Constitution. Accordingly, we affirm the order of the superior court dismissing the appellants’ election challenge.

(Mike Frisch )