Daniel v. Barrow

Per curiam. The appellant, Graham F. Daniel, Jr., and the appellee, John J. Barrow, are seeking a seat in the Georgia State House of Representatives for 68th House District. They, along with other candidates, were involved in a primary on August 12,1986. Daniel contested the results of the election, and Barrow filed a counterclaim in which he also contested the results. We find that all the parties to this case are legally before us, and we affirm the trial court’s holding that there should be a runoff election between Daniel and Barrow. 1. The trial court’s findings in part are as follows: “[T]he Board [319] of Elections certified the results of the election in dispute as follows; 1407 votes for Lawton E. Stephens, 1082 votes for John J. Barrow, 1090 votes for Graham F. Daniel, Jr., 1013 votes for Marguerite Holmes and 272 votes for Ronald W. Schoeffler. The result is an eight vote difference between Graham F. Daniel, Jr. and John J. Barrow. “Discrepancies stipulated as occurring at polling places can be summarized as follows: five voters eligible to vote in the 68th Legislative District were excluded from voting in that race and directed instead to voting machines for another Legislative District, where these candidates were not on the ballot; seven voters not eligible to vote in the 68th Legislative District were allowed to vote in the 68th Legislative District. “The Court finds several discrepancies not stipulated, to wit: one absentee ballot counted for Graham F. Daniel was signed by the voter; one absentee ballot counted for Graham F. Daniel, Jr. was so marked as to be considered ambiguous; two separate voting machines registered partial votes that were counted for Daniel as the next higher whole vote.” We find, in the words of the trial court, that, “The totality of the evidence is such that it places in doubt the outcome of the election that determines the candidate with the second highest number of votes.” 2. We agree with the trial court that Stephens received the highest number of votes and that the discrepancies would not have had an effect on his first place position. And we also agree that the discrepancies made it impossible to determine whether Daniel or Barrow was the second place winner. The trial court was correct in relying on OCGA § 21-2-527 (d) and ordering a runoff between Daniel and Barrow who were obviously the only two candidates the discrepancies affected. Judgment affirmed. All the Justices concur except Smith and Gregory, JJ., who dissent as to Division 2, Weltner, J., who dissents as to Division 1 and Bell, J., who dissents.