Judge Rules in Gasaway’s Favor, Orders a Third Special Election For HD 28

After four days of testimony, a decision is handed down in the second lawsuit brought by Dan Gasaway against now State Representative Chris Erwin and the Boards of Elections in Habersham, Banks and Stephens Counties.

Late Friday afternoon, Senior Superior Court Judge David Sweat ruled that four votes in the December 4th Special Primary were illegal.

“The Court is persuaded that voters Burrell, Akers, Bower, and Franklin were allowed to vote when they lacked the proper qualifications to vote in the district or county in which they voted,” Judge Sweat ruled. “The Court is persuaded that there are a sufficient number of votes that were illegal such as to cast doubt on the outcome of the election, so the court is compelled to find that it must order a third election.”

Three of the votes that the Judge threw out were cast by voters living outside Habersham County or outside the 28th House District, but who still cast ballots in the Special Primary on December 4.  Another voter, Michael Burrell, discovered someone had voted by absenee ballot two days before him using his name without his knowledge.

Gasaway’s attorney, Jake Evans, had argued that at least 17 other votes in Banks County were illegal because the voters lived outside House District 28.

Evans told the Court that Districts and the voters in them are determined by Census blocks, which are used by the State Appropriations Committee to draw the House District lines.

Erwin’s attorney, Brian Tyson argued voting districts are determined by county lines.

In his ruling, Judge Sweat said Evans had not provided enough evidence with those votes to prove his case. That decision also put to rest another issue regarding whether Banks County Sheriff Carlton Speed and his family were eligible to vote in the House District 28 race.

Gasaway’s suit argued Speed’s property sits on the Banks/Franklin County line. The suit alleged Speed’s house is in Franklin County based on the Census block and GIS mapping, and the rest of his property is in Banks County. However, Judge Sweat ruled Sheriff Speed’s property, including his house, are in Banks County.

Erwin was sworn in as the new House District 28 Representative on January 14 at the start of the 2019 General Assembly, and was quickly appointed to four committees.

The question now is, where does that leave Rep. Erwin and the citizens of Houses District 28?  The Judge’s ruling does not mean Gasaway won the December 4th election.

“No. It just means that the Judge ruled the December 4th election was flawed,” Stephens County Attorney Brian Ranck explained. “It didn’t decide who won the election.”

On Monday, Ranck told WNEG News if Gasaway’s suit was successful, then according to the Georgia Code, Erwin would have to vacate his House seat immediately, and the two candidates would have to run again and a new election held.

But Friday evening after the Judge Sweat’s ruling, Ranck said it could be more complicated than that, given that Erwin has the right to appeal the Judge’s decision before any new election date is set, and that process could take months.

“There are a couple of questions that have to be answered,” he said Friday night. “One is, does an appeal automatically stay Chris Erwin’s removal from office or can he continue  to serve while the appeal is pending? And there was some disagreement as to whether that is decided by a trial court, or by the Court of Appeals. They still have to flush that out.”

If Erwin’s attorneys appeal and it is decided that he must step aside during the appeal process, then that leaves the citizens of House District 28 without representation until a new election is held. And if he chooses not to appeal, he must step down immediately, which still leaves District 28 without a Represntative until the new election. And this third election will likely take place after this General Assembly session is ended. That means issues currently being decided under the Gold Dome will not have a Representative to speak for the citizens of House District 28 during the rest of the 2019 General Assembly.

Then there’s the question of how long an appeal process would take. No election date can be set until an appeal has worked its way through the courts and a decision is rendered.

“I’ve had cases where it took six months before a decision was rendered on appeal,” Ranck said. “However, I believe if there is an appeal, they will try to expedite it so a new election can take place.”

But Ranck said this case could potentially go to the State Supreme Court if Erwin, Gasway and their attorneys choose to take it that far.

This was the second lawsuit brought by Gasaway who twice lost his seat as the State House Representative for District 28 to Erwin.

In May, Gasaway lost by 67 votes in the May Primary.  Gasaway filed his first civil suit June 6th, claiming some voters living along the District 28/District 10 dividing line in Habersham County had been given the wrong ballots when they went to vote in May.

In September, Judge Sweat ruled in his favor and ordered a new Special Election for December 4th.

Gasaway lost that race to Erwin a second time by just two votes, even after a recount, and filed this latest suit on December 17.

Erwin has not said yet whether he plans to file an appeal. He and his attorneys quickly left the courtroom Friday night and would not speak with reporters.

However, on his Facebook page, Erwin said he is looking forward to again running for the 28th District House seat.

“I want to thank all of those who supported my campaign so far and helped us achieve success. We are certainly disappointed by today’s court decision overturning fair election results, but we look forward to one more opportunity to run and win this race for a third time in a row,” he said.

Erwin went on to call the lawsuit, “unfortunate” and said it has cost the taxpayers thousands of dollars in court costs.

“With that said, I am looking forward to hitting the campaign trail again,” he said.

WNEG News reached out to Gasaway for a comment and we are waiting for his response.

A written ruling by Judge Sweat is expected next week. Ranck said it’s not clear whether the Judge will address the appeal issue, nor when a new election date will be set.

Evans said Friday he will begin filing the paperwork for a new election.

WNEG News will continue to follow this story and bring you the latest information as it becomes available.