Date Set for “Re-run” of House District 28 Primary Election

December 4th is the date set by Senior Superior Court Judge David Sweat for the re-do of the May Republican Primary Election.

Late Tuesday, Judge Sweat ruled the evidence presented by Jake Evans, attorney for State Representative Dan Gasaway was sufficient to call for a new election.

On Wednesday, attorneys for Gasaway and Republican challenger Chris Erwin met again in Banks County Superior Court to hammer out the details of how the election should take place.

Among the issues discussed included whether Erwin’s name should be listed on the November ballot.

Erwin’s attorney Brian Tyson suggested leaving his client’s name on the November ballot and putting the word, “null” next to it to alert voters that a vote for Erwin in November would not be counted.

Evans countered that since the May Primary results were ruled null and void and a new election ordered, Erwin’s name should not be on the November ballot because it would confuse voters.

Judge Sweat said he knew of no case law or statute in the Georgia Code that gave him the authority to remove Erwin’s name from the November ballot.

After some back and forth discussion, Judge Sweat recommended a recess while attorneys placed a conference call to the Secretary of State’s office.

“We spoke with the Secretary of State’s office and they agreed with our position that given the Court has ordered that the previous election be voided and a new election go forward, that it doesn’t make a lot of sense for Mr. Erwin’s name to go on the November ballot,” said Evans. “It just creates a lot of confusion for the voters, and it creates complications for the Elections Boards. So, it doesn’t make a lot of sense for that to take place.”

Another question answered by the Secretary of State’s office was whether there was a need for a General Election in January after the December 4th Primary.

“We were all in error together on the question of whether a general election had to be held,” explained Tyson, Erwin’s attorney. “There is a section in the Code that says if there is an unopposed candidate and there are no write-ins, there does not need to be a general election. So I think that takes care of the concern of whether or not there needs to be a general election.”

Additionally, the Secretary of State’s office told attorneys via phone conference Wednesday that the deadline for any write-in candidates had already passed. So, the only two candidates on the December 4th ticket will be Gasaway and Erwin.

Also discussed was whether the election on December 4th is a new Primary or a “re-run” of the May Primary.  According to the Secretary of State’s office, the December Primary is considered a re-run because there were errors in the first election. Therefore, it is not a new election, but the Secretary of State left it up to Judge Sweat to determine the answer to the final issue: who will be eligible to vote in the December 4th Primary?

“Mr. Tyson’s position is going to be the individuals that polled the Repblican ballots and were eligible on May 22, are the only ones who can vote on December 4th,” Gasaway’s attorney told the Judge. “Our position is that it creates too many complications. And in addition to that, there’s going to have be a number of corrections…..The more stipulations that we add, given the errors that have already been identified and are being corrected, the more complex and less likely the second election may be properly administered.”

“If the second primary is a re-run of the May Primary election, then everything stays as it was for that election,” Erwin’s attorney told the Court.  “So, that means everyone who was eligible to vote in that election is eligible to vote in the next election. So, if someone lived in the District and moved to say, South Georgia between May 22 and now, they would still be eligible to vote in December. The election is a re-run. That’s the whole point.”

After hearing their arguments, Judge Sweat laid out who will be able to vote in the December Primary election on December 4th.

“It seems to me that the universe of voters should include those who should have been eligible, but were not given a proper ballot and those who were eligible on May 22 and who at the time of this election continue to be eligible. Somebody who has since moved (out of the District) is disqualified,” Judge Sweat said.

Also excluded, the Judge said, are those who voted on the Democratic ballot in May, anyone who has been convicted of a felony since the May 22 election, and those who registered to vote after the May 22 Primary.

One final question as yet unanswered Wednesday is whether Erwin plans to file an appeal to the Judge’s decision to hold a new Primary election.

“We’re going to converse with counsel on that and make a decision,” Erwin told WNEG News. “We’re going to try to move pretty quickly. We’re under a timeline of 10 days to  make a decision and we know that.  We proved our case we felt, so that’s where we stand right now and that’s why we need to review and see what our options are further down the line.”

“I think the judge made a very sound ruling on some very solid facts,” Gasaway noted. “I don’t see that there’s a lot of grounds for an appeal, but there were some technicalities and some procedural issues, which was really all they could raise. So, we’ll see what happens.”

Gasaway said he had hoped the election could have taken place on November 6th, which would have provided both candidates with a broader voting base, he said, and would have saved taxpayer money, but he said he will abide by the court’s ruling.