How to Overturn a State Election ... Twice

Photo of a mailbox and no house—the "address" of one of four voters who illegally voted in the House District 28 special election on Dec. 4, 2018, that led to the election being voided for the second time. (Courtesy photo)
Photo of a mailbox and no house—the "address" of one of four voters who illegally voted in the House District 28 special election on Dec. 4, 2018, that led to the election being voided for the second time. (Courtesy photo)

Photo of a mailbox and no house—the "address" of one of four voters who illegally voted in the House District 28 special election on Dec. 4, 2018, that led to the election being voided for the second time. (Courtesy photo)

In a state where lawsuits contesting elections are a rarity, Holland & Knight’s Jake Evans has done something it appears no one else has: He persuaded a judge to overturn the same race, twice.

Last year, Evans persuaded a senior superior court judge to overturn the Republican primary for House District 28, citing at least 74 voters who were given the wrong ballots. Evans represents Dan Gasaway, who is battling for a fourth term as the district’s state representative against challenger Chris Erwin. Gasaway lost that race by 67 votes. There was no Democratic or third-party candidate.

People who likely cast illegal ballots—including a woman who claimed her residence was a property that housed a mailbox and nothing else, and a man who was told when he showed up at the polls that he had already voted but was allowed to cast his ballot anyway.

Jake Evans, Holland & Knight, Atlanta. (Photo: John Disney/ALM)
Jake Evans, Holland & Knight, Atlanta. (Photo: John Disney/ALM)

Jake Evans, Holland & Knight, Atlanta. (Photo: John Disney/ALM)

Evans subpoenaed seven voters and put them on the witness stand.

He even challenged votes by Banks County Sheriff Billy Carlton Speed, and Speed’s wife and son, claiming they didn’t live in the district or Banks County based on an official designation by the U.S. Census Bureau. He lost the battle to void their votes, but the judge said the question of where the sheriff really lives remains “ripe for appeal.”

Evans only needed two illegal votes to overturn the second race. The same judge who overturned the first election gave him four.

Evans—a senior litigation associate at the Atlanta offices of Holland & Knight and chairman of the state Government Transparency and Campaign Finance Commission—said lawyers who have counseled the Georgia secretary of state told him it is the first time they are aware of an election being overturned twice.

On Monday, Evans explained what he did to overturn the Gasaway-Erwin contest a second time. His goal: “to find more illegal votes than the legal margin of victory.”

“Our position is, at this point, that this is an issue that is bigger than Dan Gasaway,” he said. “It’s bigger than Chris Erwin. It is an issue that reflects the integrity of the electoral system.”

Contesting the anomalies that surfaced in last year’s Republican primary and in the do-over contest “is necessary to instill public confidence that the elections are properly done,” Evans added. “And if they are not properly done, they are remedied. We don’t want to uphold illegal elections.”

Erwin’s lawyer, Bryan Tyson of Atlanta’s Strickland Brockington Lewis, said Erwin—who has already taken his seat at the Georgia General Assembly—is considering whether to seek an emergency stay of the ruling or appeal.

“This was a razor’s edge kind of election contest,” Tyson said. “A two-vote contest is going to be a challenge, no matter what.”

Evans said Gasaway’s decision to challenge the Dec. 4 race originated with a single ballot cast by a woman who Gasaway knew no longer lived in the district but voted in the special election anyway.

Although Gasaway protested, Habersham County election officials counted her ballot, Evans said.

That vote was one of four ballots Sweat invalidated when he voided the District 28 race for the second time on Friday, Evans said.

Election contests are extremely difficult, because they are litigated on an expedited time frame and must be filed no more than five days after an election is certified by the secretary of state, Evans said. Proof, although largely available through public records, is not always easy to come by because county and state election officials who are the defendants are also tasked with responding to open records requests, Evans explained.

Evans said he and Gasaway also faced a higher bar because they were arguing to overturn an election that Gasaway lost for the second time and that had already been voided once. “The judge, especially the second time, really has to feel it’s clear that illegal votes were being counted,” he said.

Evans used the state's public records law to get copies of certified voter participation logs, which document the registered voters who actually cast ballots. He also sought the list of voters registered in each of the three counties—Habersham, Banks and Stephens—in District 28. He asked for copies of the certification forms each voter signs before obtaining a ballot on Election Day. He also began digging through deed records to ascertain whether voters actually lived in the district and hired an expert to scour public records for changes of address.

At last week’s bench trial, Evans presented evidence that 21 ballots in the race were cast illegally. The lawyer said they had more evidence that at least 68 ballots were at issue. He said he subpoenaed voters in the most egregious instances to testify. Of the seven voters who testified, the judge deemed four of them voted illegally, Evans said.

Evans said he sorted the questionable votes into four “buckets:” unexplainable irregularities; votes cast by people who no longer lived in the district but voted anyway; voters who were told they lived in District 28 but actually lived in another district; and voters who were not allowed to cast ballots in the race because they were wrongly told they lived in another district.

If a voter moves outside the county where they have registered more than 30 days before an election, they lose their voter eligibility in their former county, according to state law. Failing to provide accurate information on the certification is a felony. If a voter claimed to live inside the district even though he or she no longer resided there, “arguably that is voter fraud,” Evans said.

Tyson said he countered that voters who moved within the county could still vote at their old polling place if they failed to notify election officials of their move. “We want to make sure voters continue to have their right to vote, even though they don’t update their address,” he said. “It doesn’t make it an illegal vote merely because someone failed to provide information in a timely way.”

Gasaway’s first election contest last September focused on voters living in the district who were given ballots for another district and voters who were allowed to cast ballots in the race although they didn’t live there.

The four voided Dec. 4 ballots included:

  • The voter Gasaway flagged whose provisional ballots were counted after she moved out of the district in April 2017, Evans said. She voted in her old district in Habersham County in both the challenged May primary and in the special election in December, even though she provided her new address on her voter certificate and shouldn’t have been given a ballot, Evans said. She voted by absentee ballot in the Nov. 6 midterm election using her new address. She also admitted on the witness stand that she shouldn’t have voted in the special election.

  • A woman who has lived with her parents outside of District 28 since June 2017, or 523 days before the Dec. 4 election. That voter continued to vote at a precinct inside her old district, using the address of an empty lot she owns there, Evans said. The voter testified that poll workers wrongly told her she could vote where she got her mail even though she didn’t live there, Evans said. There is a mailbox on the property.

  • Another voter who moved to another county and another state house district in October 2017, or 429 days before the Dec. 4 election, Evans said. She, too, continued to vote in her old district, although she put her new out-of-district address on her voter certificates when she cast ballots in the May primary, the November election and the Dec. 4 race, Evans said.

  • A man who was told by a poll worker that he had already voted in the December election, Evans said. But the signature of the person casting the ballot didn’t match the the voter’s signature or the signature on the voter registration card, Evans said. The poll worker let him vote, which meant two ballots were cast in his name. “No one knows what happened,” Evans said.

Evans said two other serious anomalies were addressed at trial. One involved a challenge of votes cast by Banks County Sheriff Billy Carlton Speed and his wife and son. The second involved a voter who questioned whether her ballot had been cast and whose name was not on the list of certified voters that was originally given to Evans.

Speed, who first branded Gasaway’s second lawsuit as “frivolous” on his Facebook page, intervened in the suit to defend his assertion that he and his family were Banks County residents, even though the U.S. Census Bureau places his home in neighboring Franklin County. The county line runs through Speed’s property, Evans said. Speed has said he pays property taxes in Banks County.

But Sweat declined to throw out the Speed family votes, ruling that a county has the right to determine its own boundaries and that it can pre-empt the census block county designation, Evans said. A county clerk previously made the call that the sheriff lived in Banks County, which is inside District 28.

Evans also cited an anomaly involving the vote of a Banks woman who reported that, when she voted at her county precinct, her electronic ballot card prematurely popped out of the electronic voting machine. The voter flagged a poll worker who assured her the ballot was counted, but her name was not on a certified list of voters who actually cast ballots, Evans said. “Our allegation was that her legal vote was rejected,” he said.

Then, “suddenly, on the third day of the trial, they county election officials bring in a new list, and her name is on that list,” he said. County election officials offered that, when the original list was certified on Dec. 14, it “hadn’t been updated,” Evans said. The woman’s name first appeared in the electronic voting system as having voted the day after Gasaway filed suit, Evans said. “It makes no sense at all.”

Read more:

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