Opinion
34338.
SUBMITTED NOVEMBER 2, 1978.
DECIDED NOVEMBER 2, 1978. REHEARING DENIED NOVEMBER 3, 1978.
Election contest. Chatham Superior Court. Before Judge McMillan from Middle Circuit.
Ashman Zipperer, Alex L. Zipperer, John R. Calhoun, Robert M. Davis, for appellant.
Morton G. Forbes, Anton F. Solms, Jr., Clark Smith, for appellees.
This opinion is rendered on November 2, 1978. The general election is next Tuesday, November 7, 1978.
Following our decision on October 24, 1978, in Taggart v. Phillips, 242 Ga. 454, (1978), the trial judge conducted a hearing and entered an order on October 30, 1978.
After finding that at the August 8, 1978, Democratic primary for Georgia House of Representatives District 125, candidate Phillips received 2,194 votes and contestant Taggart received 2,183 votes (a difference of 11 votes), and 1,071 voters who voted at polling places in the district did not vote in this race, the court found that the evidence did not sustain contestant's claim that his name was misaligned on one voting machine resulting in votes being cast for his opponent. The court's order continues:
"After hearing evidence presented by the Plaintiff, I find that at least sixteen registered voters voted in the 125th Legislative District in Chatham County who were not residents of that district. Each of the sixteen voters had previously been duly qualified as voters in the 125th District. Each of the sixteen voters changed his or her residence to another Legislative District in Chatham County more than thirty days prior to the August Primary election. None of these sixteen electors notified the Board of Registrars of his or her change in residency as required by Ga. Code § 34-631(c)...
"In order to preserve the voters' right to secrecy, I have refused to permit voters to be examined as to whether or for whom each voter cast a ballot in the 125th legislative race.
"The question presented to the Court is as follows: A Chatham County resident registered to vote in one legislative district moved his residence to another legislative district more than thirty days prior to a primary election; he failed to notify the Board of Registrars of his residence change within thirty days prior to the primary election; he voted in the primary election at the poll precinct of his former residence where he is registered; pursuant to Ga. Code Ann. § 34-1703 (c) and without a prior challenge pursuant to Ga. Code Ann. § 34-628, his vote is challenged after the primary election upon the contention that he was not qualified to vote because of residency requirements under the Georgia Election Code. Was this elector qualified to vote in a legislative district election contest in the district of his former residence? I find this elector is a qualified and legal elector...
"The provisions of Ga. Code § 34-631 (d) permit an elector to vote in an election district or a county of prior residence if he changes his residence within thirty days prior to a Primary or an election; however, the General Assembly has not prescribed the prohibition against an elector voting in a legislative district when he has changed his residence from that district more than thirty days prior to the Primary or election."
Unfortunately we must disagree with the court below. Code Ann. § 34-631 (c) (as amended, Ga. L. 1978, pp. 1004, 1010) provides: "In the event any elector moves to a residence within the county which has a different address from the address contained on the person's registration card, it shall be his duty to notify the board of registrars of such fact 30 days prior to the primary or election which he wishes to vote, and the board of registrars shall place such person's name on the proper list of electors at least five days prior to such primary or election. If the board, of its own knowledge, knows of such move, it may make the proper change and notify the elector of such change." Code Ann. § 34-631 (d) (as amended, Ga. L. 1978, pp. 1004, 1010) provides: "Any provision of this Code to the contrary notwithstanding, an elector who moves from one county to another or moves to a new residence within the same county but a new election district within 30 days prior to a primary or election may vote in the county or election district in which he is registered to vote." The clear implication of this latter subsection is that an elector who moves his residence to a new election district within the same county 30 days prior to a primary or election may not vote in the election district in which he was registered to vote, but should have notified the board of registrars pursuant to Code Ann. § 34-631 (c), supra, so as to have his name appear on the proper list of electors.
We find that the implication of these two subsections is mandated by a provision found elsewhere in the election Code. Code Ann. § 34-1328 (c) provides: "Except as provided in sections 34-629 [voting at one central location, e.g., the courthouse] and 34-1407 [absentee voting], no person shall vote at any primary or election at any polling place outside the election district in which he resides..." See also § 34-1929. Although it would appear that the 1978 amendment to Code Ann. § 34-631 (d) may constitute a third exception to § 34-1328 (c) (in addition to central location and absentee voting), § 34-631 (c) would not be an exception to § 34-1328 (c).
However, while there were 16 nonresident voters who voted improperly at polling places in the 125th House District, there were 1071 voters in the Democratic primary who did not vote in the 125th House race. There is no transcript and the record does not show that these 16 voters voted in this race. Although the trial judge in his order stated that he refused to permit voters to be examined as to whether they voted in the 125th House race, there is no enumeration of error based upon this ruling and no offer of proof that these 16 voters voted in this race. In view of the delay involved in the prior appeal, see Taggart v. Phillips, supra, and the fact that the general election is only 4 days away, it would be impracticable to remand this case for further proceedings. In Taggart v. Phillips, supra, we wrote: "Appellant must show that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt on the election. It is not for whom they voted but that they voted in this `race' illegally..." (Emphasis supplied.) Appellant failed to show that these 16 voters voted in the race being challenged. We therefore find that the contestant has failed in his burden of showing that the votes of these 16 voters were sufficient to place the result of this primary race in doubt. Code Ann. § 34-1703 (c).
Judgment affirmed. All the Justices concur, except Jordan, J., who concurs in the judgment only.