Habersham County Concedes Errors in District 28 May Primary Election, Withdraws Petition to Dismiss Case

Habersham County and the Habersham County Board of Commissioners have admitted today that there were errors in voting in the District 28 May Primary Election and they have withdrawn their petition to dismiss a suit brought by State Representative Dan Gasaway.

In a press release issued Wednesday afternoon, County Commission Board Chair Victor Anderson said, “We concede errors were made.”  (Habersham District 28 Press Release)

“The Habersham County Board of Commissioners has directed our County Attorney to withdraw the Motion to Dismiss in the lawsuit contesting the May 22, 2018 House District 28 Primary Election,” Anderson said in the press release. “We concede that errors were made. Initially, it appeared that the number of votes impacted was less than the margin in this extremely close election. Upon further investigation by the Habersham County Board of Commissioners and Habersham County Elections Department, we have discovered that a number of voters-in excess of the certified 67 vote differential-had in fact voted in the wrong district. With this information, Habersham County is calling for a new election for this seat and hope that Banks and Stephens Counties (both of which are also in District 28) will support this request.”

The news comes after Representative Dan Gasaway filed suit in Fulton County on June 6, against the Habersham County Elections Supervisor Laurel Ellison, Secretary of State Brian Kemp, Representative-elect Chris Erwin, and U.S. District Attorney for Georgia Chris Carr claiming, “improper administration of the election in Habersham County,” which the suit claims resulted in dozens of voters being given the wrong ballot.

All of the defendants named in Gasaway’s suit had initially filed a motion to dismiss the case claiming there were only 67 voters who had been given wrong ballots.

However, Habersham County attorney Donnie Hunt tells WNEG News Habersham election officials ultimately found there more than that.

“We always thought there were less than 67 votes, but in the course of completing the investigation and looking at all of the names in both District 10 and District 28 that’s when she (Laurel Ellison) discovered that actually there were five more than what Mr. Gasaway had alleged. So it was at least 70 that were in the wrong district that had actually voted,” he said.

The State Board of Elections also launched an investigation after the votes were certified by Secretary of State Brian Kemp on May 22nd. The results of their investigation have not yet been released.

Habersham County is divided between two State House Districts, District 10 and District 28.   District 10 Representative Terry Rogers ran unopposed in May.  In District 28, incumbent Republican Representative Dan Gasaway ran against challenger Republican Chris Erwin. Erwin took both Banks and Habersham Counties, but lost in Stephens County.  Overall, Erwin won over Gasaway by just 67 votes with 3,111 votes to Gasaway’s 3,044.

In July, Habersham election officials sent out letters to 365 registered voters stating they may be in the wrong State House district. Those voters were then told in the letter that they had been switched to the other House District. WNEG News has obtained a copy of the spreadsheet, which breaks down the list of those voters and what district they were in originally.

A hearing had been scheduled in Fulton County Superior Court for September 11 to determine whether there was enough evidence to warrant a new election.

Now, attorney for Habersham County, Donnie Hunt tells WNEG News a new hearing will take place in Banks County.

“Habersham County has filed a motion to amend its pleading and withdraw its motion to dismiss,” Hunt said Wednesday. “The Secretary of State’s office is going to be dismissed from the case because Mr. Gasaway and the County have filed a joint motion to transfer the case to Banks County. Without the Secretary of State being a party there’s no jurisdiction in Fulton County anymore because you have to sue a person in the county in which they live.”

That leaves Ellison who lives in Habersham County and Chris Erwin who lives in Banks County.  Hunt said a judge will be appointed by the Court Administrator for the 9th Congressional District.

“They’ll appoint that judge very promptly. Then the judge will decide what the status of the case is and schedule a hearing, if need be,” he said.

When asked how soon the Habersham Election officials knew there was a problem with the May election, Hunt said he did not know.

Gasaway said Wednesday, “I applaud the Habersham County Commissioners for doing the right thing by conceding to a new election. We anticipate Banks and Stephens counties to follow in this concession. We’re hopeful that Chris Erwin will place the integrity and fairness of our electoral system and the right of voters in House 28 to select their State Representtaie above his personal interest by likewise consenting to a new election.”

In a written statement to WNEG News, Erwin said, “By filing his lawsuit, Dan Gasaway has already caused a significant expenditure of taxpayer dollars. A new election will cost even more to reach the same result. Despite months of investigation, Dan has not shown that the outcome of the election would have changed, because there’s no doubt that a number of the people he claims voted improperly would have voted for me.”

Erwin went on to say, “And even if I agreed to hold a new election, that’s not enough—a judge has to order a new election only after finding the case was properly brought and the evidence supports it. We will await the court’s ruling on the issues in the lawsuit Dan filed.”

That new election could take place as a special election on November 6th or be pushed to the run-off election date in December.  Absentee ballots for the November election will go out September 18.

We will continue to follow this story and bring you more details as they become available.