A Legitimate Election Dispute Remains Pending Under Georgia Law Without a Hearing Date or Judge Assigned

(AP Photo/John Bazemore)

On December 4, 2020, the Trump Campaign filed a lawsuit challenging the outcome of the Presidential election contest in Georgia.  The action was filed in Fulton County Superior Court.  I wrote an article on the suit the day it was filed.

Trump Files Georgia Election Contest In Fulton County.

This was a contest I had been anticipating because it was specifically provided for in the Georgia election statutes, and it is not one where the Court would need to wrestle with jurisdictional issues such as “standing” by the parties, or timing issues such as “laches.”  All the attention in Georgia up to that point were suits filed in federal court by Lin Wood and Sidney Powell, which had all manner of procedural and evidentiary deficiencies.

Filing the state court lawsuit had to await the “certification” of the outcome by the Georgia Secretary of State, which meant that it could only be filed after the “hand recount” was completed as ordered by the Secretary of State.

Within the allegations of the 64-page Complaint, the Trump campaign claims they have witness testimony for the courtroom that will identify “illegal” votes in the following numbers:

  1. 2,560 felons
  2. 66,247 underage voters
  3. 2,423 votes from people not registered
  4. 1,043 individuals registered at post office boxes
  5. 4,926 individuals who voted in Georgia after registering in another state
  6. 395 individuals who voted in two states
  7. 15,700 votes from people who moved out of state before the election
  8. 40,279 votes of people who moved without re-registering in their new county
  9. Another 30,000 to 40,000 absentee ballots lacking proper signature matching and verification

Under Georgia election statutes, these claims are squarely within the classification of “errors” that can support the basis of contesting the outcome of an election. Official Code of Georgia Annotated Sec. 21-2-522 states:

A result of a primary or election may be contested on one or more of the following grounds:
(1) Misconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result;
(2) When the defendant is ineligible for the nomination or office in dispute;
(3) When illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result;
(4) For any error in counting the votes or declaring the result of the primary or election, if such error would change the result; or
(5) For any other cause which shows that another was the person legally nominated, elected, or eligible to compete in a run-off primary or election.

The number of allegedly invalid votes which are claimed to have been cast in the Complaint exceeds the margin of Biden’s win in Georgia.

After a losing candidate files the Complaint, the procedures laid out by Georgia statutes are as follows [I have edited out unnecessary text for purposes of brevity and ease of reading]:

Sec. 21-2-523 dictates where such actions are to be filed, and how they are to proceed once they are filed:

(c) Upon the filing of a contest petition, the clerk of the superior court having jurisdiction shall immediately notify the administrative judge for the judicial administrative district in which that county lies, or the district court administrator, who shall immediately notify the administrative judge, of the institution of proceedings under this article. If the county in which the proceedings were instituted is not in the circuit of the administrative judge, the administrative judge shall select a superior court judge from within the district, but not from the circuit in which the proceeding was instituted, or a senior judge not a resident of the circuit in which the proceeding was instituted, to preside over the contest.

(d) If the administrative judge is a member of the circuit in which the proceeding was filed, or if the other judges of the district are unable or are unwilling to preside over the proceeding, or if the other judges of the district are judges of the circuit in which the proceeding was filed, then the administrative judge shall select an administrative judge of an adjoining district to select a superior court judge from that district, or a superior court judge from the district in which the proceeding was filed, but not the circuit in which the proceeding was filed, or a senior judge who is not a resident of the circuit wherein the proceeding was filed.

(e) After a judge has agreed to preside over the case, the administrative judge who selected the judge to hear the matter shall enter an order in the superior court of the county where the proceeding was filed appointing such judge, and such judge shall promptly begin presiding over such proceedings in such court and shall determine same as soon as practicable. Such judge shall be reimbursed for his or her actual expenses for food and lodging and shall receive the same mileage as any other state officials and employees. Senior judges shall be entitled to compensation and reimbursement as the law provides for senior judge service.

An understanding of this section of the statutes requires a bit of a “secret decoder ring” as to the descriptions.  The basics are that when county election officials are named as defendants, the Judge assigned to preside over the case cannot be from the same county as the officials being sued.  The Superior Courts in Georgia are based in the counties, but organized by “district”.  The “Administrative Judge” for the district where the suit is filed names a Superior Court Judge from the district — but not the county being sued — to preside over the case.  The bottom line is that a Judge from Fulton County will not be assigned to preside over the case; it will be a judge from another county in the same “district.”

Sec. 21-2-524 — “Filing and allegations of petition to contest primary or election…”, states:

(a) A petition to contest the result of a primary or election shall be filed in the office of the clerk of the superior court having jurisdiction … and shall allege:

(5) Each ground of contest;

(7) The relief sought; and

(c) When an error in the counting of votes is alleged as a ground of contest, it is sufficient for the contestant to state generally that he or she believes that error was committed in the counting of the votes cast for the filling of the nomination or office in dispute, or for or against the question in dispute, in one or more specified precincts; and it shall not be necessary for the contestant to offer evidence to substantiate such allegation….

(e) A statement of the grounds of contest shall not be rejected, nor the proceedings dismissed by any court, for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which the primary or election is contested.

(f) Upon such petition being filed, the clerk of the superior court shall issue notice, in the form of special process directed to the sheriff of such county, requiring the defendant and any other person named in such petition as a candidate for such nomination or office, if any, to appear and answer such petition, on a day to be fixed in such notice, not more than ten days nor less than five days after the service of such notice…. Any other person who was a candidate at such primary or election for the nomination or office involved and upon whom notice was served as provided in this subsection shall be deemed a litigant to such proceeding and may set up by way of answer or cross action any right of interest or claim he or she may have.

The import of this provision is that Georgia law favors substance over form — so long as the allegations are sufficiently clear, the Complaint cannot be dismissed without a trial on the merits.  The candidate contesting the outcome need not include evidence to substantiate the claim made in the Complaint where the claim is that errors occurred in the vote-counting process.

As for the Court proceedings, Sec. 21-2-525 states:

(a) Within 20 days after the return day fixed in the notice as provided in subsection (a) of Code Section 21-2-524 to the defendant, the presiding judge shall fix a place and time for the hearing of the contest proceeding. Such judge may fix additional hearings at such other times and places as are necessary to decide the contest promptly.

(b) The court having jurisdiction of the action shall have plenary power, throughout the area in which the contested primary or election was conducted, 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, according to the course of practice in other civil cases under the laws of this state, or which may be necessary and proper to carry out this chapter. The court shall have authority to subpoena and to compel the attendance of any officer of the primary or election complained of and of any person capable of testifying concerning the same; 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; to take testimony; and to proceed without delay to the hearing and determination of such contest, postponing for the purpose, if necessary, all other business.

Under Georgia law, if the losing party prevails as the plaintiff in an election contest, the remedy is to conduct a new election.  Georgia law does not allow for changing the outcome of an election — it only invalidates the results of the prior election.

Today is the 30th day since the Trump campaign followed all the provisions of Georgia law which set forth a clear procedure for Pres. Trump to prove with evidence in a court the claims that invalid votes were cast and counted in Georgia for Joe Biden in sufficient numbers to have determined the outcome of the election. If the Campaign can’t prove with competent evidence that was the case, then he will lose the election contest.  But, as of now, that hasn’t happened.  In fact, nothing has happened.

David Shafer, Chairman of the Georgia Republican Party tweeted the following yesterday:

All attention has been focused on the two run-off elections scheduled for Georgia on Tuesday, and no attention has been paid to the fact that the Judiciary of Georgia has sat on this bonafide lawsuit which, if the allegations are established by a preponderance of evidence in a Georgia Court, invalidates the Nov. 3 election and the “certification” of Joe Biden as the winner.

The “recount” conducted by the Secretary of State did nothing other than count paper ballots — it included no effort to investigate the claims raised by the Complaint that tens of thousands of votes were cast by persons who were not eligible to vote on Nov. 3 under Georgia law.

The Nov. 3 election in Georgia has not been settled under the laws passed by the Georgia Legislature.  An election contest remains pending that, if it were for any office other than President, would prevent an official from being sworn in until such time as it was settled.

The failure and refusal of the Judiciary and Executive branch officials of Georgia to acknowledge this FACT and apply the statutes as written is another basis to question the “good faith” of everything else that has transpired in Georgia over the past 60 days.

The GOP controls the Georgia State Legislature, and the Georgia Supreme Court Judges were all appointed by GOP Governors.

Yet they all have “stood down” when it comes to exercising the authority of their offices to ensure that Georgia law was followed on Nov. 3 and thereafter.