Superior Court, Get Ready Now for Election Night Court Under O.C.G.A. § 21-2-412

By: Judge Christopher C. Edwards and Kyle Harris Timmons

New Georgia lawyers quickly learn one of the top ten on the “don’t ever” list is: don’t ever call a Superior Court judge at night. Almost everything can wait at least until morning with no harm done, and probably until the next scheduled hearing day. This unwritten rule has an obscure but well-defined exception on election nights. Georgia’s Superior Court judges have the absolute statutory duty to provide due process on election nights, not in the morning or later, and to issue election day or night orders to ensure fair, free elections and lawful vote counting. Failing to have a judge assigned to election day and night duty, ready to open the courthouse after hours to conduct a hearing, risks creating the appearance that the court was complicit or even partisan by its nonfeasance, compounding the gravity of any claimed election law violation. Georgia Superior Court judges are required to be the guardians of not just speedy, but immediate, due process to protect electoral process.

This article is about the Superior Court’s election day and night duty, not about election contests. Election contests challenging the election result cannot be filed on election day or night but are only ripe for filing later, after vote certification. Superior Courts are required by law to prioritize and act swiftly on all claimed election law violations. “The swift resolution of election contests is vital for the smooth operation of government…” Plyman v. Glynn County, 276 Ga. 426, 427 (2003).

This obscure election night court statute reposes great trust in the diligence, impartiality and courage of judges to immediately enjoin election abuses and immediately mandate compliance with law to ensure free, fair elections:

[a]t least one judge of the superior court of each judicial circuit shall be available in his or her circuit on the day of each primary or election from 7:00 A.M. . . . until 10:00 P.M. . . . and so long thereafter as it may appear that the process of such court will be necessary to secure a free, fair, and correct computation and canvass of votes cast at such primary or election. During such period the court shall issue process, if necessary, to enforce and secure compliance with the primary or election laws and shall decide such other matters pertaining to the primary or election as may be necessary to carry out the intent of this chapter. O.C.G.A. § 21-2-412 

Public confidence in the validity of our free elections in Georgia depends upon our Superior Courts honoring this election day and night duty.

This statute is extraordinary in two ways. First, no written complaint is needed for Superior Court to exercise this jurisdiction. Second, this jurisdiction is time limited to election day and night and the period of vote computation thereafter. 

In the past, election day duty was usually a very easy duty. Typically, the election superintendent, or her attorney, simply disclosed any problem to the election duty judge and simultaneously presented a remedial order. For example, if a polling location opened one hour late, the judge simply ordered that the polling location stay open one hour later. The need for a judge to enter such an election day order has been rare, and the need for a judge on election night, even more rare.

Nonetheless, the law expressly requires election night court. Failure of the judiciary and its support personnel to prepare for election night court is indefensible on the basis that election disputes are rare. The law often requires diligent preparation from public officials for rare events. As discussed below, the recent surge in electoral challenges makes more election litigation foreseeable. Remembering the requirements of the statute, envision these scenarios:

  • An election day complaint may be filed just before 5:00 P.M. and require immediate hearing that night after business hours.
  • Or, the judge may be asked after business hours to accept the filing of an election night complaint and conduct a hearing that night. A judge is specifically authorized under Georgia law to accept the initial filing of a legal action without a clerk. O.C.G.A. § 9-11-5(e).
  • Or, a candidate, or citizen group, may demand hearing and judicial action to order the “correct computation and canvass of votes cast” even after the polls close, with no written complaint, for example, claiming that evidence is being destroyed.

In this milieu of increased systemic electoral challenges, judges should guard against the habit of imagining future election day problems will be simple, or that the election superintendent will always have an undisputed order prepared, ready to easily remedy whatever went wrong. There is no longer any basis for casual blithe certitude that no hearing will be required on election night. The ultimate validity of the claims is irrelevant to this discussion. The adage “coming events cast their shadows before” applies.

Awareness of the need to follow the law and prepare for election day and election night hearings on similar future claims is the judiciary’s concern.

What happens to the reputation of the Superior Court when election officials and a candidate or citizens group have a genuine dispute on election night after the polls close? For example, maybe there is a dispute about the manner or method of vote computation, but no judge is on duty or the judge is not prepared to conduct a nighttime hearing in a courtroom as required by law? What happens to public confidence in our free elections?

What process is due? Due process for election day and night issues requires more preparation than a judge tucked in at home with a cellphone and Title 21 of the Georgia Code, available to sign an undisputed order. A dispute may arise. The statute requires “the process of such court… necessary…” The process necessary in a court of record includes the plenary due process of an adversarial evidentiary hearing on the record if needed. Personnel and a courtroom may be required to conduct a hearing. The statute does not appear to require a judge, sheriff and court reporter sitting in the courthouse all night just in case an election controversy arises, unless, for example, the judge is forewarned judicial action will be needed after hours. Judges must provide due process in open, public courtrooms, Judicial Qualifications Revised Formal Advisory Opinion 239, with the sheriff, or a sheriff’s deputy, present. O.C.G.A. § 15-16-10(a)(2). An open courtroom is not open unless the front door of the courthouse is open, with the public freely admitted, so the Sheriff must be prepared to provide courthouse security to keep the front door of the courthouse open during hearing. Since a judge must be on call to provide due process until 10:00 P.M., and for “so long thereafter as it may appear that the process of such court will be necessary,” then the sheriff or a sheriff’s deputy, a court reporter, and an open courtroom, must also be available on short notice into the night to allow for contested hearings and necessary orders to “secure a free, fair, and correct computation and canvass of votes.” O.C.G.A. § 21-2-412

What time does election night court duty end? The judge assigned to election duty cannot take the night off just because no controversy is known by 5:00 P.M. The statute expressly requires a Superior Court judge be available until at least 10:00 P.M. to ensure the vote “computation” complies with the law. Judges “shall issue process, if necessary,” for “so long thereafter [after 10:00 P.M.] as it may appear that the process of such court will be necessary to secure a free, fair, and correct computation and canvass of votes cast at such primary or election.” Id. As anyone who stayed up waiting for a final vote count knows, this can be into the wee hours of the morning.

What should Georgia Superior Court judges do now to prepare? Adding provisions addressing election duties to a USCR 3.1 case assignment order is a simple and effective way to ensure judges and court staff are notified and prepared for their responsibilities on election nights. Such an order should 1) recite statutory election day and night duties of the Superior Court; 2) require the Superior Court clerks of the circuit to establish a rotating assignment of election duties, to notify the assigned judge of his or her responsibility one month before an election, and to provide the county election superintendents, county attorneys, sheriffs, and perhaps the local bar, of the name and contact information of the assigned judge; 3) require the sheriffs and clerks in each county to have staff available to appear on short notice upon request of the assigned judge, even after the courthouse is closed, to open the courthouse to the public for access to an open courtroom, to conduct hearing and to “issue process, if necessary,” to be executed by the Sheriff or election officials; and 4) have a court reporter available to appear on short notice. The assigned judge must have a list of all cell phone numbers needed to open each county courthouse and convene a hearing at night.

Should the public and bar be informed there is a judge on duty election night? Yes, access to justice requires the identity and contact information of the judge assigned to election day and night duty be publicly known. The judge’s contact could be an email monitored by the judge on election night, perhaps even an email created just for election duty. Email would allow almost instant contact with the judge and creates a record of contact (or the absence of contact) that may be included in the court’s record. All election and court officials should be requested by the court to freely advise candidates and the bar how the assigned judge will receive requests for judicial action on election day and night. Remember, generations of lawyers have been trained to avoid contacting any judge at night. On election night, that tradition does not serve due process, so judges should inform the bar that needed contact is lawful and proper on election night. Any judge must disqualify when appropriate, so when disqualification of an assigned election duty judge is predictable, the election duty judge may need to proactively recuse well in advance of election day, to allow assignment of another judge.

Georgia law mandates Superior Courts be available and ready to provide due process to protect lawful electoral process until at least 10:00 P.M. on election nights. Each Superior Court must be well prepared and ready to follow the law in protecting electoral processes.