Chapter 5 The statute relied upon by the Georgia Supreme Court in Jones in 1992 is exactly the kind of express declaration that the supreme court in Thompson said in 1949 would counteract the “American Rule.”92 Thus, Jones and Thompson give us the final version of the legal principle that governs situations where votes were cast for an ineligible candidate: the votes cast for a candidate who is ineligible to take office will be counted in determining who won the election unless a statute voids those votes. D. Summary: The court will determine the legality of the challenged ballots and adjust the vote totals to achieve the narrowest remedy possible unless fairness has been undermined. • When possible, the court will adjust the candidates’ vote totals when the proof shows that there were uncounted legal ballots or counted illegal ballots. o o o Where the court can determine which specific ballots were illegal but had been counted, those ballots are subtracted from the candidates’ totals; Where the court can determine which specific ballots were legal but had not been counted, those ballots are added to the candidates’ totals; and After the appropriate additions and subtractions, the court will declare that the candidate with the most votes is the victor. • Sometimes a reallocation of votes is not possible or not appropriate. A court will void the election and require that it be run again when: o o o • • • • 92 There is proof that ballots have been illegally cast, and The court cannot determine for which candidate those ballots were cast, and Either the number of undetermined votes is greater than the margin of votes between the candidates or the entire election is tainted by fraud. Cases involving the deprivation of the right to vote will be treated differently from cases involving procedural irregularities. Votes cast for a candidate who is ineligible to take office still count in determining the winner, i.e., they count as votes for the ineligible candidate, unless those votes are specifically voided by statute. Fraudulent signatures will be subtracted from the total number of signatures on a candidate’s nomination petition, but petitions that are permeated with fraud are invalid and the candidate will not qualify to run in the election. Criminal behavior should be prosecuted and the perpetrators should be punished, but criminal behavior will not void an election unless it changed the election result or made the result impossible to determine. The statute relied on in Jones was enacted after the decision in Thompson. Current Georgia law says that, when a candidate in a general election withdraws, “All votes cast for the withdrawn candidate shall be void and shall not be counted.” Ga. Code Ann. § 21-2-134(a)(1) & (2) (2005). See also Ga. Code Ann. 21-2-134(b)(2) and 21-2-501(a) (2005). 119