Judge Orders New Election for House District 28

There will be a new election for House District 28.

After a day of testimony and arguments, Senior Superior Court Judge David Sweat ruled Tuesday evening there was enough evidence to warrant a new election after hearing evidence presented by attorneys for State Representative Dan Gasaway regarding voting irregularities in Habersham County in the May General Primary Election.

“So it is the Court’s view that the results of the Primary Election must be set aside and a new election be held,” Judge Sweat said late Tuesday afternoon.

“I think this shows that our Democracy is important and there are people fighting just like me to protect it and just like that Judge right there,” Gasaway said. “I think it’s important voters know that their votes matter, not just to them, but they matter to elected people too.”

Erwin’s attorney asked for time to consider their next move. If Erwin chooses to appeal, the new election could be pushed back to December.

“Obviously we got a court ruling that we need to sit and look through and make a decision on what way we go,” Republican businessman Chris Erwin said after the decision. “We felt we won the race. We thought we proved that the numbers weren’t up to 67 and we still stand by that. So now we have to sit down and do a little overnight talking and thinking about (whether we appeal) it and make a decision from there.”

A hearing will take place Wednesday morning to find out whether Erwin will appeal the Judge’s decision and to set a possible date for a new District 28 election.  Attorneys for Gasaway would like that election to be included in the November 6th General Election, but Erwin’s attorney is pushing for a December Primary and January Election.

Erwin won the May Primary Election by just 67 votes district wide. In court testimony Tuesday, Gasaway said he challenged the results of that race after he was approached by a Habershan County constituent who told him his name was not on the ballot she had been given.  After doing more research, he told the Judge he found more voters in Habersham County who had been given the wrong ballot. Then on June 6th, he filed a lawsuit challenging the election results, after consulting with an attorney.

Tuesday morning, Judge Sweat heard arguments from attorneys for both Gasaway and Erwin. Erwin’s attorney, Bryan Tyson, asked the Judge to dismiss Gasaway’s lawsuit arguing on several fronts.

First, that Gasaway had e-filed his suit at 11:30p on June 6th without paying his filing fee.  His filing was rejected and he had to refile the next day – after the filing deadline. Gasaway’s attorney, Jake Evans, however was able to provide documentation from the State approving Gasaway’s original filing date.

Tyson also told the court the case should be dismissed because Banks County was not named in the original lawsuit.  Evans countered that there was no reason to include Banks County in the suit because they had no irregularities in their election.  Evans also noted that if the Judge ordered a new election, Banks County would have to be part of that anyway.

Tyson argued again that the original suit was not filed in the District where the irregularities had allegedly taken place, but Evans noted the suit had been filed in Fulton County because Secretary of State Brian Kemp was named in the suit originally and that  his county of residence is Fulton.  When Kemp was removed from the lawsuit, the suit was moved to Banks County in District 28.

After hearing from Tyson and Evans, Judge Sweat ordered that Banks County be added to the lawsuit, but denied the defense’s motion to dismiss Gasaway’s case and ordered both sides to present the merits of their case.

One of the first witnesses to testify was Habersham County Elections Superintendent Laurel Ellison. Ellison told the Court that after hearing there may have been voters who cast ballots in the wrong district, she conducted her own research using GIS maps of Habersham County cross referenced with voter addresses.  Ellison said she concluded that were 450 registered voters assigned to the wrong District. Of that, she said 70 Republican voters had cast ballots in the May Election in the wrong District.  According to Ellison, 37 Republican voters who resided in District 28  voted in District 10. Another 33 Republican voters resided in District 10 but voted in District 28.

Also testifying was Mark Davis, President of Data Productions, Inc., an analytics company that provides voter data for political campaigns using geo-coding and digital mapping.  Davis testified that his research found some 1,100 errors in the Habersham County voter registration records, but agreed with Ellison that 70 Republican voters in Habersham County had voted in the wrong District in May.  Davis also noted that two people whose home is in Franklin County and who pay property tax in Franklin County, voted in the District 28 race in Stephens County. House District 28 covers Banks, Stephens, and a portion of Habersham County. Franklin County is in House District 32.

The Court also heard from Stephens County Registrar Bill Cochran.  Cochran told the Judge he had received notice from the Secretary of State’ office that six voters’ ballots had been questioned.

Of those, he said a Martin couple’s ballots were set aside as provisional and ultimately determined to be illegal. He noted that the couple’s driveway is in Stephens County, but their home is in Franklin County. He said that couple had been voting in Stephens County elections since 1992, even though their residence is in Franklin County.

In closing arguments, Evan told the Judge, “Representative Gasaway should have his opportuity to have a fair election. The principles upon which our Country is based should be upheld in this situation to maintain the integrity of the voting and electoral system. And the voters in District 28 should have a fair opportunity to rightfully elect their Representative for House District 28….We therefore request that justice be done and a new election be held.”

Tyson told the Judge that Gasaway’s attorneys had not met the burden of proof that there were enough wrong votes to justify a new election. Tyson based his argument on Georgia Code OCGA 28-2-1, which outlines apportionment for both State House and Senate members. Tyson said the code requires a census-based apportionment rather than relying on geo-coding and digital mapping.

“The evidence today showed a lot of people relied on GIS maps. So at the end of the day, no one can testify for sure that the names presented today are actually outside the district,” he said. ” Mr. Gasaway should have brought an expert to the Court who has a census-block-based mapping system that could look block by block and state that this particular District constitutes these blocks, not that this particular boundary line falls along this particular road.”

After taking a short recess, Judge Sweat rendered his decision.

“I think the Court is declined to follow Mr. Tyson’s view that the method of proof must be referenced to those census tracks as noted in OCGA 28-2-1,” he said.

Sweat said using GIS maps and geo-coding is the only way to have a visible representation of census-based boundary lines.

“The Court is persuaded that the burden of proof by the preponderance of evidence has been carried by the Plaintiff by showing that more votes than 67 were cast in an incorrect district and that the result and outcome of the election is in question because we don’t know how those voters would have voted if they have voted in the proper District,” Sweat said. “So, it is the Court’s view that the results of the Primary Election must be set aside and a new election be held…It is the Court’s view that it is necessary there be a new election.”

Tuesday was the day the Secretary of State was to begin issuing ballots for overseas military personnel and the first day for absentee voting by paper ballot. After hearing the Judge’s decision, Evans said the Secretary of State’s office was standing by ready to amend the ballots to include a special primary election on November 6 if Erwin chose not to appeal the decision.

Stephens County attorney Brian Ranck said Stephens County will go along with the Judge’s decision. “Our main concern is that the election was fair and accurate, ” he said. “Our position is that the Judge has ordered a new election and we will comply with the Court’s order. We would like to do it in the most cost-effective manner and as quickly as possible. Outside of that, we’re at the mercy of the court and the County is going to comply with the Court order.”