Supreme Court Denies Erwin’s Emergency Motion to Speed Appeal Process

The State Supreme Court has denied an emergency motion by attorneys for Chris Erwin and the House District 28 Boards of Election to speed up his appeal process and get a decision before a third Special Primary election in April.

On Thursday, Erwin’s attorney Bryan Tyson filed a motion asking the Supreme Court to speed up the hearing process on their initial appeal and re-instate Erwin as the Representative for House District 28 for the remainder of the 2019 General Assembly session.

Earlier this week, Erwin filed an appeal to the February 8th ruling by Senior Superior Court Judge David Sweat in a lawsuit brought by Dan Gasaway regarding alleged illegal and improper voting during the December 4 Special Primary.

Judge Sweat ruled that four votes cast in December were either illegal or improper and he ordered a third election between Gasaway and Erwin for April 9.

Erwin won the December 4 election by just two votes and was sworn into office as the Representative for State House District 28 on January 14.

In his written ruling, Judge Sweat also ordered Erwin to immediately vacate his seat as Representative pending the April election, and instructed the Registrars in the three counties to come up with an Elector List of those voters who would be eligible to cast ballots.

Tyson told the Supreme Court in his ruling that if the hearing is not held before the April election, the appeal to Judge Sweat’s ruling will be moot.

“Unless this Court sets an expedited briefing schedule in this appeal, this appeal will become moot after the April 9, 2019 third primary election for House District 28. That election will prevent the Court from reviewing the questions about election administration raised by the trial court’s order,” he wrote.

Tyson went on to say the order to hold a third election and come up with an Elector List puts an undo burden on the Registrars in Stephens, Banks and Habersham counties.

“If the trial court’s ruling stands, voter registrars will have additional duties imposed on them regarding voter certificates and an individual voter’s residence,” he said.

Finally, Tyson’s emergency appeal asks the Court to re-instate Erwin for the duration of the 2019 General Assembly arguing voters in the 28th District are now without representation for the remainder of the session.

“Without expedited consideration of the issues raised by this appeal, the people of House District 28— including all of Banks and Stephens Counties—will be unrepresented for the remainder of the 2019 legislative session,” Tyson said. “Expedited briefing gives the opportunity for Appellant Erwin to return to the House in time for the conclusion of the legislative session if he is successful in this appeal.”

Tyson submitted a timeline for the Supreme Court to hold hearings on Erwin’s appeal. He asked for the first hearing to be held February 25, for Gasaway’s attorneys to go before the Court on March 11, and a decision by the Supreme Court by March 15.

“This schedule will allow for the timely consideration of the election contest and allows for the Court to address the issues in a thorough manner. Payne, 267 Ga. at 876 (litigants should ensure election contests are disposed of “with dispatch”),” Tyson wrote.

In their decision, the Supreme Court Justices wrote, “Erwin has filed an “Emergency Motion for Expedited Consideration,” in which he asks this Court to set an expedited briefing schedule in the forthcoming appeal and to decide the appeal on an expedited basis. But because no appeal has been docketed, there is nothing at this point to expedite. Erwin notes in his motion that OCGA § 21- 2-528 authorizes this Court to entertain an application for stay or supersedeas in connection with a forthcoming appeal in an election contest prior to docketing, but his motion does not seek a stay or supersedeas. Accordingly, his motion is denied without prejudice.  All the Justices concur.”

No word yet on when the State Supreme Court will hear Erwin’s appeal.

However, the denial to expedite the appeal means Erwin’s removal from office still stands, as does the April election.