Kastorf Law provides election law and voting rights counsel.

Can you bring a pre-election challenge to a political candidate’s qualifications in Georgia?

Can you bring a pre-election challenge to someone’s qualification to run for office in Georgia? At least for a candidate for District Attorney, the answer is no. Though the inquiry is likely office-specific.

Kastorf Law is pleased to report a nice win for our client, a candidate for District Attorney in Georgia. An opposing candidate asserted (incorrectly) that she was not eligible to run for office because she did not live in the judicial circuit. Although Kastorf Law could have defended the accusation on the merits, a better option was to get the case dismissed on jurisdictional grounds, so the candidate did not need to deal with a needless distraction to her campaign.

If you are a candidate for office and need representation, read about Kastorf Law’s Election Law & Voting Rights practice.

When is a challenge to a political candidate’s qualifications ripe?

Anita Howard is a candidate for District Attorney in the Macon Judicial District. An opponent filed a pre-election challenge asserting that she was not a resident of the Macon Judicial District. This claim is inaccurate, but regardless, by filing a challenge, her opponent was able to trigger a proceeding before the Office of State Administrative Hearings to review her candidacy. The case was scheduled for a hearing, which would have provided an expensive and unwarranted distraction from Howard’s campaign.

The petitioner relied on O.C.G.A. § 15-18-3, which states in pertinent part: “To be eligible to fill the office of district attorney, a person must: . . . [p]ermanently reside in the circuit at the time of his election or appointment.” Kastorf Law filed a motion to dismiss on the ground that any assessment of whether Howard lives in the circuit “at the time of [her] election or appointment” is not ripe, because the election had not yet occurred. It is, to state the obvious, impossible to determine in a fact finding hearing where someone in fact lived in the future.

Are persons challenging a candidate’s qualifications entitled to pre-election review?

Are pre-election challenges necessary?

Howard’s opponent argued that Kastorf Law’s interpretation of the provision could not possibly be correct because it would leave no legal way for a citizen of a judicial district to challenge the residency of a candidate for district attorney until after the election had taken place. Since he considered pre-election challenges necessary, the “only logical measuring stick to utilize for the purpose or residency is the date of qualification of candidacy.”

We responded that this argument from policy is simply irrelevant, because the plain language fo the statute is clear. “In construing statutes, courts shall look diligently for the intention of the General Assembly. The words of a statute should be given a reasonable and sensible interpretation to carry out the legislative intent and render the statute valid.” Cox v. Barber, 275 Ga. 415, 416 (2002). However, where the words of a statute are plain and unequivocal, “judicial construction is not only unnecessary but is forbidden.” Jessup v. Bennett, 226 Ga. 606, 609 (1970). 

Some types of ballot eligibility challenges may be brought only after an election in Georgia

And, in any event, the supposedly “patently absurd result” of allowing only a post-election challenge is not so absurd at all. In fact, that’s that’s exactly how you must bring many election challenges in Georgia. For example, challenges to the wording of ballot referendums must be brought after they are enacted. See O’Kelley et. al. v. Cox, 278 Ga. 572 (2004).

In O’Kelley, the Supreme Court of Georgia held that petitioners do not have the right to pre-election review of ballot initiatives, but may challenge those initiatives only after voters enact them. Notably, the Court expressly rejected the argument that opponents of the referendum had a right to participate in an election in which a referendum that might not pass judicial scrutiny did not appear. Id. It explained that instead, opponents of the referendum’s inclusion on the ballot “are entitled to campaign against enactment of the proposed amendment and, if they are unsuccessful in that effort, they may bring a challenge to its constitutionality on any arguably meritorious basis. Id. At this time, however, they have no right to invoke the power of the judiciary. . . .”

The Administrative Law Judge agreed with Kastorf Law’s position, noting, among other things: “Here the words could not be plainer. “To be eligible to fill the office of district attorney, a person must: . . . [p]ermanently reside in the circuit at the time of his election or appointment.” O.C.G.A. § 15- 18-3(2) (emphasis added).”

What are the implications of this ruling for other pre-election challenges to candidate qualifications?

The most obvious implication for this ruling is that pre-election challenges cannot be brought to residency requirements in district attorney races in Georgia. But the case also stands for the proposition, more broadly, that there is no inherent right to pre-election review of a candidate’s qualifications.

It is important to note, though, that whether such a right exists may depend on the language of the relevant statute. To be eligible for District Attorney, one must reside in the district only at the time of election or appointment. Several other offices, such as positions in the General Assembly, require a minimum amount of time in district. If it is already impossible for a candidate to satisfy the pre-election residency requirement at the time of a challenge, that challenge may still be ripe for review.

Read the full decision here.

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Kastorf Law practices election law and voting rights litigation in Georgia and throughout the United States. Learn more about our practice here, or just give us a call.

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