As used in this chapter, the term:
(.1) "Activities of daily living" includes eating, toileting, grooming, dressing, shaving, transferring, and other personal care services.
(.2) "Attendant care services" means services and supports furnished to an individual with a physical disability, as needed, to assist in accomplishing activities of daily living, instrumental activities of daily living, and health related functions through hands-on assistance, supervision, or cuing.
(2.1) "Ballot scanner" means an electronic recording device which receives an elector's ballot and tabulates the votes on the ballot by its own devices; also known as a "tabulating machine."
(3.1) "Campaign material" means any newspaper, booklet, pamphlet, card, sign, paraphernalia, or any other written or printed matter referring to:
Campaign material shall not include any written or printed matter that is used exclusively for the personal and private reference of an individual elector during the course of voting.
(4.1) "Direct recording electronic" or "DRE" voting equipment means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote. Such term shall not encompass ballot marking devices or electronic ballot markers.
(7.1) "Electronic ballot marker" means an electronic device that does not compute or retain votes; may integrate components such as a ballot scanner, printer, touch screen monitor, audio output, and a navigational keypad; and uses electronic technology to independently and privately mark a paper ballot at the direction of an elector, interpret ballot selections, communicate such interpretation for elector verification, and print an elector verifiable paper ballot.
(19.1) "Optical scanning voting system" means a system employing paper ballots on which electors cast votes with a ballot marking device or electronic ballot marker after which votes are counted by ballot scanners.
(32.1) "Scanning ballot" means a printed paper ballot designed to be marked by an elector with a ballot marking device or electronic ballot marker or a blank sheet of paper designed to be used in a ballot marking device or electronic ballot marker, which is then inserted for casting into a ballot scanner.
(Code 1933, § 34-103, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1970, p. 347, § 1; Ga. L. 1978, p. 1004, §§ 1, 2; Ga. L. 1979, p. 964, § 1; Ga. L. 1982, p. 3, § 21; Ga. L. 1982, p. 1512, § 1; Ga. L. 1983, p. 140, § 1; Ga. L. 1984, p. 696, § 1; Ga. L. 1988, p. 964, § 1; Ga. L. 1989, p. 10, § 1; Ga. L. 1994, p. 279, § 1; Ga. L. 1997, p. 590, § 1; Ga. L. 1998, p. 145, § 1; Ga. L. 1998, p. 295, § 1; Ga. L. 1998, p. 1231, §§ 1, 2, 25, 26; Ga. L. 2001, Ex. Sess., p. 325, § 1; Ga. L. 2002, p. 598, §§ 1-1, 2-1; Ga. L. 2003, p. 151, § 1; Ga. L. 2003, p. 517, § 1; Ga. L. 2005, p. 253, § 1/HB 244; Ga. L. 2006, p. 888, § 1/HB 1435; Ga. L. 2010, p. 914, § 1/HB 540; Ga. L. 2016, p. 173, § 1/SB 199; Ga. L. 2019, p. 7, § 1/HB 316.)
The 2019 amendment, effective April 2, 2019, substituted the present provisions of paragraph (2) for the former provisions, which read: " 'Ballot labels' means the cards, paper, or other material placed on the front of a voting machine containing the names of offices and candidates and statements of questions to be voted on."; added paragraph (2.1); added the second sentence in paragraph (4.1); added paragraph (7.1); substituted "paper ballots that are read by ballot scanners" for "ballots read by optical scanning tabulators" near the end of paragraph (18); and added paragraphs (19.1) and (32.1).
Cross references.- District supervisors; election procedure for elected supervisors, § 2-6-30.
Probate court's authority to perform duties relating to elections, § 15-9-30.
For application of this statute in 2020, see Executive Orders 08.15.20.01 and 08.31.20.02.
A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.
Administrative Rules and Regulations.- Calls for primaries and elections, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Dates of Primaries and Elections, § 183-1-8-.01.
Definition of vote, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Election Code, Returns of Primaries and Elections, § 183-1-15-.02.
Law reviews.- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 81 (2019).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 36, former Code 1933, §§ 34-101 et seq., and 34A-101, and former Code Section 21-3-2 are included in the annotations for this Code section.
Cited in Stinson v. Manning, 221 Ga. 487, 145 S.E.2d 541 (1965); Tripp v. Holder, 119 Ga. App. 608, 168 S.E.2d 189 (1969); Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971); Ollila v. Graham, 126 Ga. App. 288, 190 S.E.2d 542 (1972); League of Women Voters v. Board of Elections, 237 Ga. 40, 227 S.E.2d 225 (1976); Smiley v. Davenport, 139 Ga. App. 753, 229 S.E.2d 489 (1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Grogan v. Paulding County Democratic Executive Comm., 246 Ga. 206, 269 S.E.2d 467 (1980); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985); Favorito v. Handel, 285 Ga. 795, 684 S.E.2d 257 (2009); Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010); City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 765 S.E.2d 33 (2014).
County Registrar
County registrar is not prohibited from entering a municipal election because the restriction on municipal registrars under former Code 1933, § 34A-103 does not govern county registrars. Jarnagin v. Harris, 138 Ga. App. 318, 226 S.E.2d 108 (1976) (decided under former Code 1933, § 34-101 et seq.)
Elector
An elector must be a living person. Hollifield v. Vickers, 118 Ga. App. 229, 162 S.E.2d 905 (1968).
Political Body
Citizens Party is a "political body" under O.C.G.A. § 21-2-2(19) (see now O.C.G.A. § 21-2-2(23)). Libertarian Party v. Harris, 644 F. Supp. 602 (N.D. Ga. 1986).
Residence
Question of domicile is for jury.
- The question of domicile is a mixed question of law and fact and is ordinarily one for a jury, and should not be determined by the court except in plain and palpable cases. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Change of domicile necessary for change of residence.
- There must be either the tacit or the explicit intention to change one's domicile before there is a change of legal residence. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
If a person leaves the place of domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in domicile, the person will not be considered as having changed domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Maintenance of alternate abode not necessarily change in domicile.
- One may, for purposes of convenience, maintain a residence at a place not intended as a permanent abode without affecting any change in legal domicile. Haggard v. Graham, 142 Ga. App. 498, 236 S.E.2d 92 (1977).
Requirements as to domicile.
- See Avery v. Bower, 170 Ga. 202, 152 S.E. 239 (1930) (decided under former Code 1910, § 36).
Candidate improperly deemed ineligible based on residency.
- In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet the residency requirements of O.C.G.A. § 46-2-1(b), the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).
Special Election
County school board referendum.
- "Special election" encompasses a county school board referendum. Stiles v. Earnest, 252 Ga. 260, 312 S.E.2d 337 (1984).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Considerations
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 34-101 et seq., and former Code Section 21-3-2 are included in the annotations for this Code section.
Election DistrictHaving two or more polling places within one election district (now precinct) is not authorized by the Georgia Election Code. 1968 Op. Att'y Gen. No. 68-63 (decided under former Code 1933, § 34-101 et seq.).
General Election
Office created too late for general election.
- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.
Numbered List of VotersPersons who vote by absentee ballot must be included on a "numbered list of voters". 1971 Op. Att'y Gen. No. U71-127.
Polling Place
Voting from automobile not permitted.
- The Election Code does not contemplate voting from automobiles. An elector who is unable to go to the polls should vote by absentee ballot. 1965-66 Op. Att'y Gen. 66-182.
Establishment of polling places.- The governing authority of a municipality is not required to establish a polling place in each district from which a candidate is elected to office, but must establish a polling place in each precinct in the municipality. 1985 Op. Att'y Gen. No. U85-14.
Poll Officers
Municipal official may be poll officer.
- No provision of the Georgia Election Code prohibits an elected official of a municipality from serving as a poll officer in a state or national election. 1976 Op. Att'y Gen. No. U76-13.
Residence
Business address does not fulfill residency requirement.
- A business address, in and of itself, does not fulfill residency requirements, and an otherwise qualified elector may vote in the election district containing the business address only when such district also contains the residence as defined by the Election Code. 1968 Op. Att'y Gen. No. 68-293.
Where a person running for office is required to be a resident of the district from which that person is running, the person's business address, in and of itself, would not be sufficient to fulfill the residency requirement. 1968 Op. Att'y Gen. No. 68-293.
Person who moves away from a county and makes that person's home elsewhere forfeits the right to vote in that county. 1965-66 Op. Att'y Gen. No. 65-56.
Wife may register even though not domiciled within state.- A married woman whose husband has his legal residence in Georgia may register to vote in this state even though she is not physically domiciled within the state. 1975 Op. Att'y Gen. No. 75-77.
Separate Precincts
Each ward should be separate election precinct where councilmen elected by ward.
- If a municipality requires that each of its councilmen be elected from a different ward and the candidates are elected by the electors residing in that ward, each ward should be a separate election district (now precinct). 1969 Op. Att'y Gen. No. 69-399.
Special Election
An election to fill the unexpired term of an office appears to be a "special election" under O.C.G.A. § 21-2-2(28) (see paragraph (33)) in that it arises outside the usual routine. 1986 Op. Att'y Gen. No. 86-26.
Special election for new elective office.- Where a new elective office is created in a county too late for candidates to qualify for the general election, they may be voted upon in a special election. 1970 Op. Att'y Gen. No. U70-120.
Special election occurs when a superior court judge has died, and a successor is to be selected. 1970 Op. Att'y Gen. No. U70-144.
Date of the call of a special election is the date of its first publication in a newspaper of appropriate circulation. 1980 Op. Att'y Gen. No. 80-27.
County school board is empowered to authorize calling of a school bond referendum which the county election superintendent shall then call by publishing the appropriate notice. 1985 Op. Att'y Gen. No. 85-18.
Registration for special election.- The Election Code does not provide for special registration, but rather for general registration from which a list is compiled to vote in special elections. Therefore, any person who has registered to vote by the close of the fifth day (excluding Sundays or holidays) after the call of a bond election is entitled to vote in that election. 1965-66 Op. Att'y Gen. No. 66-73.
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d, Elections, §§ 1, 8, 22, 25, 27, 97, 98, 191 et seq. 26 Am. Jur. 2d, Elections, §§ 218 et seq., 270, 283 et seq., 305, 329, 330, 331. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 1, 128.
9 Am. Jur. Pleading and Practice Forms, Elections, § 1.
C.J.S.- 29 C.J.S., Elections, §§ 36, 38, 39, 136 et seq., 144, 149 et seq., 177, 193, 258, 260, 305 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq., 269, 403 et seq.
ALR.- Validity of percentage of vote or similar requirements for participation by political parties in primary elections, 70 A.L.R.2d 1162.
Validity of write-in vote where candidate's surname only is written in on ballot, 86 A.L.R.2d 1025.
Residence or domicil of student or teacher for purpose of voting, 98 A.L.R.2d 488; 44 A.L.R.3d 797.