The ACC Board of Elections formally certified the June 9 election results—including the county attorney’s controversial ruling that the late Commissioner Jerry NeSmith’s votes should be voided—despite concerns that not all absentee ballots were properly counted.
NeSmith, who died in an accidental fall June 6, won the election with 57% of the vote to challenger Jesse Houle’s 43%. But ACC Attorney Judd Drake issued a memo June 12 saying that Georgia law says votes for NeSmith should not count, awarding the District 6 seat to Houle by default.
State law allows for a substitute nomination in partisan races when a candidate dies, according to Drake, but not in nonpartisan races. He also cited a court ruling in which a judge held that votes for a candidate who appeared on the ballot but withdrew before the election should not count. While most states follow the so-called “American rule,” which calls for a special election, Georgia follows the “English rule” voiding the deceased candidate’s votes.
Another lawyer, David Ellison, disputed Drake’s conclusions at the June 18 BOE meeting. He pointed out that the candidate in the case Drake cited didn’t win; he finished third, and cited another state law calling for a special election when the winner dies after the election but before taking office.
But NeSmith didn’t die after the election, Drake said, although he acknowledged that, “In my mind, it comes out as an unjust result.”
Several NeSmith supporters told the board that they felt disenfranchised—including his widow, Farol, and local Republican Party leaders Joan and Gordon Rhoden. “It is unconscionable for you to disregard my husband’s hard work and legacy,” Farol NeSmith said.
“You are a board that really cares about having everyone’s vote count,” said Joan Rhoden. “In the United States of America, we know that everyone’s vote should count.”
The ruling is likely to be challenged in court as unconstitutional. Drake wrote in his memo that he thought such a challenge is unlikely to succeed, but “I think it’s a much closer call now,” he said last week.
BOE Chairman Jesse Evans argued for taking another day to certify the results—the deadline was June 19—but the other four members overruled him.
“The entire staff of our office, four attorneys, devoted a week to this… I don’t know that extra time will make any difference,” assistant ACC attorney Sherrie Hines said. “There are some things that just have to be decided by a judge, especially something that’s never happened before in the state of Georgia.”
The Board of Elections also heard from several citizens who wanted a countywide recount after observers discovered that Georgia’s new scanners were incorrectly counting some races on some ballots as blank. Commissioners Melissa Link and Mariah Parker, Commissioner-elect Carol Myers and three Democratic candidates for state legislature—Mokah Johnson, Jonathan Wallace and Zachary Perry—also weighed in supporting a full recount.
After the scanning issue was uncovered, the BOE decided June 16 to do a partial recount to determine the extent of the problem. A bipartisan vote review board found that 30 of the 76 ballots with races the scanner thought were blank should have been counted because the voter made an attempt to mark a race that the scanner didn’t pick up. “This has major implications for our community, where races are often decided by just a few votes,” Johnson and Wallace wrote to the BOE. In the end, though, only one vote changed hands as a result of the recount, according to Director of Elections and Voter Registration Charlotte Sosebee.
The scanner was programmed to count votes where at least 12% of a bubble was filled in. The settings can be changed to spit out more questionable ballots so that humans can try to determine the voter’s intent (for example, if the bubble was checked off instead of filled in as voters are instructed). Oconee County’s Board of Elections authorized a full recount after receiving permission from the secretary of state’s office, according to blogger and Flagpole contributor Lee Becker of Oconee County Observations. But “I cannot find explicit authority” to do a full recount, Drake said, and ACC staff said the secretary of state’s office told them they couldn’t change the scanner’s settings. “The fight is not with [the attorney’s office],” Drake said after pushback from Evans. “The fight is with the secretary of state’s office.”
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