In re December 6, 2022 General Election Ballot

316 Ga. 843

889 S.E.2d 811

IN RE: DECEMBER 6, 2022 GENERAL ELECTION BALLOT.

In re: Kevin C. Muldowney.

S23A0583, S23A0665, S23A0800

Supreme Court of Georgia.

Decided: June 21, 2023

Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, for Appellant in S23A0583.

Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, for Appellee in S23A0583.

Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, for Other Party in S23A0583.

Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, for Appellant in S23A0665.

James Christopher Abely, PO Box 30010, Sea Island, Georgia 31561, Robert Coovert, 245 Laurel Creek Road, Blue Ridge, Georgia 30517, for Amicus Appellant in S23A0665.

Charles Patrick Aaron, George Holland Rountree, Brown Rountree PC, 26 N. Main Street, Statesboro, Georgia 30458, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, for Appellee in S23A0665.

Kevin C. Muldowney, 3325 Kentworth Lane , Milton, Georgia 30004, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Russell David Willard, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0665.

Kevin C. Muldowney, 3325 Kentworth Lane, Milton, Georgia 30004, for Appellant in S23A0800.

Y. Soo Jo, Fulton County Attorney's Office, 141 Pryor Street, SW, Suite 4038, Atlanta, Georgia 30303, Mathew Eli Plott, Assistant County Attorney, Kaye Woodard Burwell, Assistant County Attorney, Shalanda M. J. Miller, Office of the Fulton County Attorney, 141 Pryor Street SW, Suite 4038, Atlanta, Georgia 30303, Cathy Woolard, Registration and Elections Board, 130 Peachtree St SW, Suite 2186, Atlanta, Georgia 30303, for Appellee in S23A0800.

Gregory C. Sowell, James Bates Brannan & Groover LLP, 1 Press Place, Suite 200, Athens, Georgia 30601, Sarah E. Thompson, 150 Timber Cove, Statesboro, Georgia 30461, Terry Scott Howard, 390 South Main Street, Winterville, Georgia 30683, Edward T. Metz, 6231 Dodgen Road, Mableton, Georgia 30126, Shontay Jones, Bulloch County Board of Elections and Registration, Bulloch County Annex, 113 North Main, Street, Suite 201, Statesboro, Georgia 30458, Daniel Walter White, Assistant City Attorney, Haynie, Litchfield, Crane & White, P.C., 222 Washington Avenue, Marietta, Georgia 30060, Christopher M. Carr, Attorney General, Russell David Willard, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Other Party in S23A0800.

Boggs, Chief Justice.

Appellants Sarah Thompson, Kevin Muldowney, and Edward T. Metz filed three, virtually identical complaints in their respective counties on December 6, 2022, alleging that the voting system used that day in the runoff election for a United States Senate seat did not comply with Georgia law. The trial courts entered orders either dismissing the complaints or denying relief. Because the complaints did not name any defendant and because Appellants failed to serve any defendant, the trial courts correctly determined that they had no authority to grant the relief sought. Accordingly, we affirm.

In their pro se complaints, which were filed in the superior courts of Bulloch, Cobb, and Fulton counties, Appellants requested that the trial court declare the runoff election in each county to be "void" and "uncertifiable by the Elections Superintendent" of the county. They each alleged that they had cast a ballot on an electronic ballot marking device that failed to meet the statutory requirements for a lawful ballot and that the use of this voting system forced all voters to cast unofficial ballots. They sought relief under OCGA § 21-2-412, which requires that a superior court judge in each judicial circuit be available on election day from 7:00 a.m. to 10:00 p.m. to address election-related issues. ¹ Appellants also sought to have each trial court enter an order requiring the counties to hold referenda at some unspecified time on the adoption of voting machines, citing OCGA § 21-2-321, which authorizes a municipality that conducts elections by paper ballot to hold a referendum on the use of voting machines.

The complaints did not name any county's Board of Elections and Registration (collectively "the Boards") ² or any other person or entity as defendant, and, accordingly, the clerks of the superior courts did not issue summons. See OCGA § 9-11-4 (a) ; OCGA § 21-2-524 (f). Nor did the complaints ask the trial courts to order a new runoff election or otherwise seek any relief with respect to the election. Citing various reasons, each trial court either dismissed the complaint or denied relief. ³ Appellants filed discretionary applications, which this Court granted under OCGA § 5-6-35 (j).

It is axiomatic that in order for a trial court to grant...