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Official Opinion 2005-3

Official Opinion 2005-3

April 15, 2005
To: 

Secretary of State

Re: 

Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency.

You have asked for my official opinion on how the powers and duties of your office in relation to enforcing the State’s Election Code are affected by the creation and operation of the State Election Board, which you also chair. It is my official opinion that Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency.

The Office of the Secretary of State

The Office of the Secretary of State is created by the Georgia Constitution. GA. CONST. art. V, § III, I.1 The Office is filled in the same manner as that of the Governor, i.e., by statewide election, and the incumbent serves a four-year term of office. GA. CONST. art. V, § I, I. A person seeking to hold that office must have been both a citizen of the United States for ten years and a legal resident of the state for four years immediately preceding his or her election or appointment. GA. CONST. art. V, § III, II(a). Additionally, a person seeking to hold that office must have attained the age of 25 by the date he or she assumes the office. Id.

The Constitution does not directly prescribe specific duties for the Secretary of State, but instead provides that the powers and duties of the Secretary and other statewide elected constitutional officers shall be defined by the General Assembly. GA. CONST. art. V, § III, III.2 The Constitution does, though, in other areas provide for specific duties of the Secretary of State which relate either directly or indirectly to the area of “election’s laws.”3 For example, in Article II of the Constitution dealing with Voting and Elections, the General Assembly is required to, “provide by law for a procedure whereby returns of all elections by the people shall be made to the Secretary of State.” GA. CONST. art. II, § II, I. The Secretary has the duty to certify referendum results for amendments to or repeals of local laws, ordinances, resolutions, or regulations and to accept for filing and publish information related to such referendums. GA. CONST. art. IX, § II, (b)(2) and (g). The Secretary is also charged with helping to prepare and publish summaries of proposed amendments to the State Constitution prior to their being submitted for approval in statewide referendums. GA. CONST. art. X, § I, II. These provisions provide a constitutional dimension to the Secretary of State’s responsibility in the area of the elections.

In carrying out its constitutional duty to define further the powers and duties of the Secretary, the General Assembly has enacted a multitude of statutes specifically defining the authority of that office, many of them in areas dealing with the state’s election laws. These are, of course, primarily identified in Title 21 of the Code of Georgia, but are also recognized in other provisions of the Code.4

The State Election Code provides in O.C.G.A. § 21 2 50(a) that the Secretary of State is empowered as follows:

(1) To determine the forms of nomination petitions, ballots, and other forms the Secretary of State is required to determine under this chapter;

(2) To receive registration statements from political parties and bodies and to determine their sufficiency prior to filing, in accordance with this chapter, and to settle any disputes concerning such statements;

(3) To receive and determine the sufficiency of nomination petitions of candidates filing notice of their candidacy with the Secretary of State in accordance with this chapter;

(4) To certify to the proper superintendent official lists of all the political party candidates who have been certified to the Secretary of State as qualified candidates for the succeeding primary and to certify to the proper superintendent official lists of all the candidates who have filed their notices of candidacy with the Secretary of State, both such certifications to be in substantially the form of the ballots to be used in the primary or election. The Secretary of State shall add to such form the language to be used in submitting any proposed constitutional amendment or other question to be voted upon at such election;

(5) To furnish to the proper superintendent all blank forms, including tally and return sheets, numbered lists of voters, cards of instructions, notices of penalties, instructions for marking ballots, tally sheets, precinct returns, recap sheets, consolidated returns, oaths of managers and clerks, oaths of assisted electors, voters certificates and binders, applications for absentee ballots, envelopes and instruction sheets for absentee ballots, and such other supplies as the Secretary of State shall deem necessary and advisable from time to time, for use in all elections and primaries. Such forms shall have printed thereon appropriate instructions for their use;

(6) To receive from the superintendent the returns of primaries and elections and to canvass and compute the votes cast for candidates and upon questions, as required by this chapter;

(7) To furnish upon request a certified copy of any document in the Secretary of State's custody by virtue of this chapter and to fix and charge a fee to cover the cost of furnishing same;

(8) To perform such other duties as may be prescribed by law;

(9) To determine and approve the form of ballots for use in special elections;

(10) To prepare and provide a notice to all candidates for federal or state office advising such candidates of such information, to include requirements of this chapter, as may, in the discretion of the Secretary of State, be conducive to the fair, legal, and orderly conduct of primaries and elections. A copy of such notice shall be provided to each superintendent for further distribution to candidates for county and militia district offices;

(11) To conduct training sessions at such places as the Secretary of State deems appropriate in each year, for the training of registrars and superintendents of elections;

(12) To prepare and publish, in the manner provided in this chapter, all notices and advertisements in connection with the conduct of elections which may be required by law;

(13) To prepare and furnish information for citizens on voter registration and voting;

(14) To maintain the official list of registered voters for this state and the list of inactive voters required by this chapter; and

(15) To develop, program, and build ballots for use by counties and municipalities on direct recording electronic (DRE) voting systems in use in the state.

Other prominent assignments of powers and responsibilities to the Secretary in relation to the implementation of the state’s election laws include authorizing the Secretary to accept or challenge the qualifications of candidates for state or federal office (O.C.G.A. § 21 2 5), designating the Secretary as the chief state election official under the Help America Vote Act of 2002 (HAVA) and under the National Voter Registration Act of 1993 (NVRA) (O.C.G.A. §§ 21 2 50.2 and 21 2 210), authorizing the Secretary to train the state’s local elections officials (O.C.G.A. § 21 2 100), maintaining the statewide voter registration system (O.C.G.A. §§ 21 2 219 through 21 2 225) and designing and implementing the statewide electronic voting system (O.C.G.A. § 21 2 300).

As demonstrated by Appendix B to this opinion, these provisions barely touch upon the myriad of powers, duties, and responsibilities assigned to the Secretary by the General Assembly. Just as a matter of sheer volume and scope, it is clear that under both the Constitution and the laws of the State the Secretary is the state official with the power, duty, and authority to manage the state’s electoral system. No other state official or entity is assigned the range of responsibilities given to the Secretary of State in the area of elections.

The State Election Board

Consistent with the Secretary’s responsibilities in the area of elections, the General Assembly has also designated the Secretary as the chairperson of the State Election Board (Board or SEB). The immediate predecessor to the State Elections Board was the State Election Commission, which was originally created in 1959. 1959 Ga. Laws 59. That Commission was originally composed of the Governor, the Secretary of State, and the Attorney General, with the Secretary of State being designated as the chairperson. Id. Its duties were not enumerated in great detail by the General Assembly, but were to be particularly focused on absentee voting by members of the military, the selection of presidential electors, the qualifications and registration of voters, and the election of United States Senators. 1959 Ga. Laws at 60.5 Administrative staff for the Commission was provided by the Secretary of State. Id.

In 1964, Georgia adopted its first unified State Election Code.6 As a part of this legislation, the State Election Board was created as a three member body, chaired by the Secretary of State and further composed of two electors, one each to be selected by a majority vote of the House of Representatives and the Senate. 1964 Ga. Laws Ex. Sess. 26, 33-34. These two members of the Board served two year terms which were concurrent with the terms of the members of the legislative body which chose them. Id. Additionally, the executive committee of each of the state’s political parties had the “privilege of from time to time appointing a member of its party to act as an advisor to the Board.”7 1964 Ga. Laws Ex. Sess. 34. The Board was authorized to consult with and receive advice from these political party advisors. Id.

In relation to the office of the Secretary of State, this three-member Election Board was charged with the duty

[t]o so coordinate the work of the Secretary of State, the ordinaries, the poll officers, and other officials, as to obtain uniformity in their practices and proceedings and legality and honesty in all elections.

1964 Ga. Laws Ex. Sess. 35 (former Ga. Code Ann. § 34 202(a)).8 The Board was authorized to adopt rules and regulations consistent with the law “as will be conducive to the fair, legal and orderly conduct of elections” and to file those rules with the Secretary of State. Id. (Former Ga. Code Ann. § 34 202(b)). These Board rules were then to be published and distributed to election officials across the state. Id. (Former Ga. Code Ann. § 34 202(c)). The Board could also investigate the administration of election laws and report violations for prosecution, move to file or intervene in court cases involving the state’s election law, or conduct its own investigations into alleged election frauds or irregularities. 1964 Ga. Laws Ex. Sess. 35-38, 84-86 (former Ga. Code Ann. §§ 34 202, 34 203, 34 204, 34 904).

In 1968, the composition of the SEB was altered so that the nominees of the political parties were made actual members of the Board rather than just advisors, bringing the composition of the Board to five members and still chaired by the Secretary of State. 1968 Ga. Laws 862, 862 64. The role of the Board was then described as supervising and coordinating the work of the Secretary and local election officials so “as to obtain uniformity in their practices and proceedings and legality and purity in all primaries and elections.” 1968 Ga. Laws 865. The Board also was given the authority to formulate, adopt, and promulgate rules and regulations “as will be conducive to the fair, legal and orderly conduct of primaries and elections” and to publish and furnish copies of the state’s election laws and pertinent rules and regulations for election officials and the public. Id. The Board retained its ability to investigate the administration of election laws and alleged frauds and irregularities and report any violations for prosecution. Id. As to matters of policy, the SEB was authorized to make recommendations on legislation to the General Assembly and to take such other action, consistent with the law, as would be conducive to fair, legal, and orderly elections. 1968 Ga. Laws 867-68.

In 1969, members of the SEB other than the Secretary were prohibited from qualifying for any elected office. 1969 Ga. Laws 329, 332. The Board was given the ability to go into court to enforce the state’s election laws in 1991, and the authority to hold administrative proceedings and impose civil fines for the violation of the state’s election laws in 1993. 1991 Ga. Laws 608; 1993 Ga. Laws 1670, 1671 72. The Attorney General was also given the authority in 1993 to investigate violations of election laws, either independently or upon referral from the Board. Id. The current version of the statute took shape under revisions in 1998 (which otherwise eliminated the state’s separate municipal election code), 2001 (permitting private parties to proceed with remedies to election-related complaints without waiting for SEB action), and 2003 (providing the SEB with authority to promulgate rules and regulations defining uniform and nondiscriminatory standards for counting votes). 1998 Ga. Laws 295, 307 34; 2001 Ga. Laws 230, 231; 2003 Ga. Laws 517, 519.

The SEB remains a five person board today, chaired by the Secretary of State. The remaining four members, who must be electors,9 are selected respectively by a majority of the House, a majority of the Senate, and nominated by each party for appointment by the Governor as representatives of the state’s two recognized political parties, the Democratic and Republican Parties of Georgia. See O.C.G.A. § 21 2 30. Three members of the Board constitute a quorum and can exercise the powers and duties of the SEB as an entity. O.C.G.A. § 21 2 30(d). The law provides no authority for members of the Board to act individually and separately from this quorum of the Board. Id. The powers and duties assigned to the Board include:

(1) To supervise and coordinate the work of the office of the Secretary of State, superintendents, registrars, deputy registrars, poll officers, and other officials so as to obtain uniformity in their practices and proceedings and legality and purity in all primaries and elections;

(2) To formulate, adopt, and promulgate such rules and regulations, consistent with law, as will be conducive to the fair, legal, and orderly conduct of primaries and elections; and, upon the adoption of each rule and regulation, the board shall promptly file certified copies thereof with the Secretary of State and each superintendent;

(3) To publish and furnish to primary and election officials, from time to time, a sufficient number of indexed copies of all primary and election laws and pertinent rules and regulations then in force;

(4) To publish and distribute such explanatory pamphlets regarding the interpretation and application of primary and election laws as in the opinion of the board should be distributed to the electorate;

(5) To investigate, or authorize the Secretary of State to investigate, when necessary or advisable the administration of primary and election laws and frauds and irregularities in primaries and elections and to report violations of the primary and election laws either to the Attorney General or the appropriate district attorney who shall be responsible for further investigation and prosecution. Nothing in this paragraph shall be so construed as to require any complaining party to request an investigation by the board before such party might proceed to seek any other remedy available to that party under this chapter or any other provision of law;

(6) To make such recommendations to the General Assembly as it may deem advisable relative to the conduct and administration of primaries and elections;

(7) To promulgate rules and regulations to define uniform and nondiscriminatory standards concerning what constitutes a vote and what will be counted as a vote for each category of voting system used in this state;

(8) To employ such assistants as may be necessary; and

(9) To take such other action, consistent with law, as the board may determine to be conducive to the fair, legal, and orderly conduct of primaries and elections.

O.C.G.A. § 21 2 31.10

The SEB retains its ability to intervene or institute legal actions in the courts and to enforce the state’s election laws through administrative enforcement actions. O.C.G.A. § 21 2 32, 21 2 33, 21 2 33.1. The Election Code further clarifies the scope of the SEB’s administrative authority by providing that it may hear complaints and levy civil penalties for the failure of local election officials to attend training, obtain necessary certifications, or for failing to properly maintain the registered voters list or for failing to provide access for provisional ballots. See O.C.G.A. §§ 21 2 100, 21 2 101, 21 2 231, 21 2 408. Additionally, the SEB may by rule or regulation determine the appropriate wording for the directions on how to vote on the state’s voting equipment and may provide rules and regulations for assuring ballot secrecy for write-in votes. O.C.G.A. §§ 21 2 284, 21 2 373. The Board also may impose a $100,000 penalty for the sale of voting equipment in Georgia which has not been certified for use by the Secretary of State. O.C.G.A. §§ 21 2 324, 21 2 368, 21 2 379.2. Under O.C.G.A. § 21 2 408, the Board is authorized to accept the written designation of political party poll watchers and the Secretary of State, as chairperson of the Board, may then officially designate those poll watchers. Finally, the SEB is required to receive notice of and copies of election contest petitions. O.C.G.A. § 21 2 524.

Relationship of the Agencies

Given this legal framework, then, Georgia law provides for a symbiotic relationship between the Office of the Secretary of State and the State Election Board but it does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other. The Secretary of State is a constitutional officer elected statewide. The constitutional status of the Secretary includes a responsibility in the area of elections. The General Assembly has recognized this assignment of authority to the Secretary through the Official Code of Georgia and has not otherwise called into question the power and responsibility of the Secretary through its delineation of additional responsibilities to the State Election Board.11

Georgia’s Constitution and Election Code make it amply clear that the Secretary is charged with the primary responsibilities required to enforce the state’s election laws. There is no indication in the law that the constitutional and statutory authority of this officer should be limited or substantively controlled by a board of political appointees who are not answerable to the electorate for their actions.

The role of the State Election Board is more limited in the area of implementing and enforcing the state’s election laws than that of the Secretary. Its duties and responsibilities relate not just to the Office of the Secretary of State, but also to local election officials such as voter registrars and election superintendents, and are directed to the broader policy considerations of providing for technical uniformity in the operation of election practices and procedures and in providing a due process mechanism for determining whether violations of laws, rules, or regulations have occurred. A review of O.C.G.A. § 21 2 31 shows that the Board’s role is to educate and coordinate across the lines of state and local governmental authority to assure that there is consistent and uniform guidance on interpretation and implementation of the Election Code. This is done through the adoption of rules and regulations which are then published and distributed to all election officials, and through the administrative enforcement powers that the SEB has to enforce those rules and regulations. Should the Board believe that there are additional requirements that should be advanced in the area of election law, but which are beyond its abilities to provide through rule or regulation or which exceed the scope of its authority, the Board is authorized to make legislative recommendations to the General Assembly.

The use of the term “supervise” in O.C.G.A. § 21 2 31(1) does not mean that the State Election Board, however, becomes the director of or has authority over the actual operation of the Office of the Secretary of State or of any local election official, whose offices are also separately created by either the Constitution or state law. There is no indication that the use of the term “supervise” is intended to provide the Board with the authority to run the day-to-day operations of these offices. Neither the Board nor any single member of the Board has any power or authority to make employment or operational decisions for any of these state or local officials or to engage in any policy making or operational oversight of their general activities.

The term “supervise” is not defined in the Code itself and is not a “term of art” related to a particular area of the law or profession, so the rules of statutory construction provide that it be given its ordinary and common meaning. O.C.G.A. § 1 3 1(b); 1997 Op. Att’y Gen. 97 18; 1995 Op. Att’y Gen. 95 42. Generally, the term “supervise” means to give direction, to inspect or to look over the performance of others. See THE AMERICAN HERITAGE DICTIONARY 1221 (2d ed. 1985). In the context of O.C.G.A. § 21 2 31 and the other limited statutory provisions regarding the Board, this means the Board is given the authority to provide policy direction and oversight to the Office of the Secretary of State and local election officials in the area of elections to the extent that such policy direction and oversight is in accordance with the Board’s statutory purpose of assuring “uniformity in their practices and proceedings and legality and purity in all primaries and elections.” The Board’s “supervisory” authority can extend no further than that statutorily authorized purpose. “As an administrative body created by the legislature, [a state agency] ‘has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.’ Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 838 (1922).” 2000 Op. Att’y Gen. 2000-2.

The fact that the Board is chaired by the Secretary of State further indicates a statutory goal that the Board’s actions are to be influenced and directed by the Secretary of State, presumably with the “good government” result that these two entities will coordinate consistently in providing guidance on the appropriate enforcement of Georgia’s electoral statutes.12 To the extent that the Board finds that the state’s election laws or underlying rules and regulations are not being complied with, the Board may act through its counsel, the Attorney General, either to institute or intervene in legal actions in any court in the state or to conduct administrative proceedings to enforce compliance with the law or its own rules and regulations. The Office of the Secretary of State is a part of that process and may provide administrative and logistical support to the Board in carrying out these responsibilities.

To interpret more broadly the Board’s authority so as to permit the Board to interfere in the substantive operation of the Secretary of State’s office would directly contravene the authority given to the Secretary of State both under the Constitution and the laws of this state. The Secretary, as a statewide elected constitutional officer, enjoys a status in our republican form of government which transcends that of other appointed officials who may head executive agencies. The power and authority of that office runs directly from a grant by the people through the State Constitution itself and through the acts of the General Assembly.13 In the case of the Secretary, that constitutional authority is further buttressed in the area of election law by the very history and laws of the state.

Additionally, the General Assembly could not confer upon the Board the power or the authority to direct the Secretary of State in the performance of the duties of office without doing violence to the concept of the “separation of powers” in relation to this statewide elected constitutional officer. The Georgia Constitution provides that “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct.” GA. CONST. art. I, § II, III. The General Assembly could not have intended, through its appointment of two members of the Board, to provide operational control over an executive branch elected constitutional officer or the constitutional office. Given that two of the appointees to the Board are nominated by political parties, although they are actually appointed by the Governor, it would certainly seem to be an improper delegation of state authority to such appointees to permit them to direct or “supervise” the operations of a state constitutional officer or department. See 1993 Op. Att’y Gen. 93 21 (discussion on improper delegation of authority to private entities).

Conclusion

Therefore, it is my official opinion that Georgia law anticipates a symbiotic relationship between the Office of the Secretary of State and the State Election Board, but does not provide either entity with authority over the day-to-day operations of or the ability to exercise direct control over the substantive or policy-making role of the other agency. The State Election Board fulfills its responsibilities in providing direction and oversight to the Secretary of State and other election officials when such direction is necessary to assure uniformity in their practices and procedures or the “legality and purity” of the electoral process. However, the Board has no authority, beyond this defined statutory scope, to direct the policy and activities of the Secretary of State as a statewide elected constitutional officer.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General


1 The Office of the Secretary of State is a venerable one dating from the earliest days of the United States and of the State of Georgia. See GA. CONST. (1789), art. II, § XI; GA. CONST. (1798), art. II, §§ XII and XIII; GA. CONST. (1861), art. III, § II, VIII and IX; GA. CONST. (1865), art. III, § II, VIII and IX; GA. CONST. (1868), art. II, § IX; art. IV, §§ VIII and IX; GA. CONST. (1877), art. II, § VI, I; art. V, § I, I, IV; art. V, § II, I, VI and VII, art. V, § III, I; GA. CONST. (1945), art. II, § VI, I; art. V, § I, III; art. V, § II, I and IV; art. V, § III, I; GA. CONST. (1976), art. II, § III, IV; art. V, § I, III; art. V, § III, I, IV, and VI.

2See Appendix A for a listing of the current constitutional provisions dealing with the Office of the Secretary of State.

3 Some of the Secretary’s election-related responsibilities provided for in the State Constitutions date from at least the Constitution of 1868. See infra note 1.

4See Appendix B for a listing of the statutory provisions addressing the Office of the Secretary of State in the context of the state’s election laws.

5 The Secretary of State at that time already had a prominent role in the enforcement of these elections statutes addressed in the Election Commission’s legislation. See 1953 Ga. Laws (Jan.-Feb. Sess.) 244; 1958 Ga. Laws 208, 1958 Ga. Laws 269.

6 For a more complete discussion of the adoption of the 1964 State Election Code see Brooks v. Miller, 158 F.3d 1230, 1233-34 (11th Cir. 1998), cert. denied sub nom. Brooks v. Barnes, 526 U.S. 1131 (1999).

7 The term “political party” was at that time and is now a term of art meaning a political organization which at the preceding gubernatorial election had nominated a candidate who had received at least 20% of the total statewide vote or which had nominated a candidate for President of the United States whose presidential electors had received at least 20% of the total vote cast nationwide. 1964 Ga. Laws Ex. Sess. 28, 30 (former Ga. Code Ann. § 34 103(u); current version O.C.G.A. § 21 2 2(25)).

8 The role of the Secretary of State in the enforcement of the state’s election laws was also addressed throughout the 1964 legislation. 1964 Ga. Laws Ex. Sess. 38-39, 63-66, 73, 81-82, 86, 95, 106-07, 119-20, 123, 171-74, 185.

9 “‛Elector’ means any person who shall possess all of the qualifications for voting now or hereafter prescribed by the laws of this state . . . and shall have registered in accordance with this chapter.” O.C.G.A. § 21 2 2(7).

10 Appendix C to this opinion contains a further listing of statutes addressing the powers and duties of the SEB. Additionally, H.B. 244, passed in the recently concluded session of the General Assembly but not yet signed by the Governor, transfers the rule-making authority for absentee voting, contained in O.C.G.A. § 21 2 381(e), from the Office of the Secretary of State to the State Election Board. H.B. 244, 2005 Gen. Assem., Reg. Sess. (Ga. 2005).

11 If the General Assembly specifically includes language in one section of a statute and fails to include that language in a provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1995) (“The omission of [specific statutory language] ‘invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.’”). 2000 Op. Att’y Gen. 2000-2, at 2.

12 In interpreting the application of a statutory exception and determining the General Assembly’s intent in enacting different statutory provisions, the law requires that statutes be read in pari materia (i.e., together) and with an intent to harmonize the purposes of both statutes. 2003 Op. Att’y Gen. 2003-5. See also, e.g., 2002 Op. Att’y Gen. 2002 6, 2001 Op. Att’y Gen. 2001 8. “It is also[] ‘a basic tenet of statutory construction that the General Assembly is presumed to enact legislation with full knowledge of the existing conditions of the law and statutes are to be construed in connection and in harmony with existing law.’” 1997 Op. Att’y Gen. 97-18, at 50, quoting Poteat v. Butler, 231 Ga. 187, 188 (1973).

13See generally Perdue v. Baker, 277 Ga. 1, 7 (2003), and 2001 Op. Att’y Gen. 2001 08 for discussion of the authority of constitutional officers.

APPENDIX A

Provisions in the Georgia Constitution addressing the Office of the Secretary of State

CITATION DESCRIPTION
Art. II, § II, I Election returns shall be made to the Secretary of State
Art. V, § III, I Election of other executive officers, includes SOS
Art. V, § II, VII Call of special session by General Assembly requires copy to SOS
Art. IX, § II, I Local amendments must be filed with the SOS
Art. X, § I, II SOS participation in the preparation of constitutional amendments

APPENDIX B

Official Code of Georgia provisions addressing elections and election related responsibilities of the Office of the Secretary of State

CITATION DESCRIPTION
3-3-7 Local elections superintendent required to certify local authorization of Sunday alcohol sales to the SOS.
3-4-44 Local elections superintendent required to certify local authorization of the manufacturing, packaging, and distribution of alcohol sales to the SOS.
3-4-91 Local elections superintendent required to certify local authorization of sales by the drink to the SOS.
3-4-92 Local elections superintendent required to certify local authorization of sales by the drink, where package sales are not already approved, to the SOS.
3-12-3 Local elections superintendent required to certify local authorization of sales by the drink in certain residential communities to the SOS
20-2-53 Local elections superintendents are required to certify the election results of their respective boards of education to the SOS.
20-2-260 Local elections superintendents are required to certify the election results of special elections regarding the closing of schools to the SOS.
21-2-4 SOS assists in the preparation of constitutional amendments summaries for the general elections and is responsible for the printing, distribution and dissemination of those summaries.
21-2-5 SOS vested with the authority to challenge qualifications of federal and state candidates.
21-2-30 SOS serves as the chairperson of the State Election Board
21-2-50 Powers and duties of the SOS
21-2-50.1 SOS authorized to postpone or extend qualifying periods in the event the Governor declares a state of emergency or disaster.
21-2-50.2 SOS coordinates responsibilities of state under HAVA.
21-2-50.1 SOS authorized to postpone or extend qualifying periods in the event the Governor declares a state of emergency or disaster.
21-2-70 (3, 14) Local superintendents required to file election calls with the SOS; SOS approves a program for certifying election superintendents.
21-2-70.1 SOS approves of a program for certifying municipal elections superintendents, or municipal boards of elections or boards of elections and registration.
21-2-77 SOS authorized to accept electronic returns and prescribe rules for formatting electronic of election returns.
21-2-99 Local elections officials are required to notify the SOS of poll worker training completed.
21-2-50.1 SOS authorized to postpone or extend qualifying periods in the event the Governor declares a state of emergency or disaster.
21-2-100 SOS authorized to select and require training for local election officials.
21-2-101 SOS authorized to require election superintendents, or a member of each board of elections, boards of elections and registration to attend a certification program by the SOS.
21-2-110 SOS authorized to accept the registration papers of political parties or bodies and receive filing fees.
21-2-111 Political parties must file rules and regulations governing their conventions and party affairs with the SOS.
21-2-113 Political bodies must file rules and regulations governing their conventions and body affairs with the SOS.
21-2-131 SOS is authorized to fix and establish a qualifying fee for federal and state offices.
21-2-132 SOS is authorized to qualify nonpartisan candidates for federal and state offices, political bodies; independent and nonpartisan state judicial offices.
21-2-133 SOS authorized to certify write-in candidates for federal and state offices.
21-2-134 SOS authorized to accept candidate withdrawals for federal and state office.
21-2-134(b)(1)(B) SOS to be notified by state executive committee of decision to make a substitute nomination.
21-2-135(a)(1) SOS may require appropriate designation of specific office sought where the office has multiple officeholders with same title for federal or state office.
21-2-138 SOS is authorized to print non-partisan ballots for judicial elections.
21-2-153 SOS is authorized to prescribe rules and regulations, as well as require information, for the qualifying of candidates in political parties for primary races.
21-2-154 SOS is authorized and required to accept the certification of qualified candidates by their state executive committee.
21-2-170 and 171 SOS is authorized to register the candidacy of an Independent or political body candidate and assure compliance with the petition requirements of the law.
21-2-172(b)(1)(B) SOS has the authority to accept or reject rules filed by political parties or bodies seeking to nominate presidential electors or candidates of political bodies by convention.
21-2-181 SOS authorized to accept petitions to qualify political bodies to nominate candidates for state-wide public office by convention.
21-2-191 Political parties must certify to the Secretary of State the names of candidates to be elected in the presidential preference primary.
21-2-192 SOS authorized to forward proclamations of the governor to the county election superintendents.
21-2-193 SOS authorized to publish names of candidates in the presidential preference primary in a newspaper of general circulation.
21-2-195 SOS authorized to accept and maintain copies of political party and body rules regarding the selection of delegates and alternates to national nominating conventions.
21-2-196 SOS shall accept the qualification oath of delegates and alternates to national convention.
21-2-200 SOS shall provide for designating the name of the candidate to whom a candidate for delegate or delegate alternate is pledged, if any on the presidential preference primary ballot.
21-2-210 SOS designated chief state election official to coordinate state responsibilities under National Voter Registration Act of 1993.
21-2-211 SOS to establish and maintain the statewide registered voters list.
21-2-212(a) SOS shall receive from clerk of superior court, certified appointments and designations of county registrars within 30 days of appointments and designations, and shall issue commissions as for county officers.
21-2-215(i) County board of registrars shall enter into the state-wide voter registration system credit for voting by qualified electors to the Secretary of State within 60 days of a primary or election.
21-2-218(a)(b) SOS to specify information to be sent to an elector’s former voting jurisdiction in order to cancel such person’s registration in the former place of residence.
21-2-218(d) SOS to furnish forms which shall be completed by electors to reflect such elector’s present legal residence or to notify the board of registrars of a change in an elector’s name.
21-2-219(a, b) Authority to specify the form of the voter registration card; - designated as office under HAVA responsible for reporting registration and absentee ballot procedures for UOCAVA voters.
21-2-221 SOS and commissioner of DMV determine the format of voter registration applications used at the DMV and the authority to promulgate rules related to the transmission of applications and signatures electronically.
21-2-221.1 SOS and the Commissioner of DNR shall determine the format of voter registration applications used in conjunction with DNR hunting and fishing license applications.
21-2-222 SOS is authorized to promulgate rules related to the electronic transmission of election registration data from designated voter registration agencies.
21-2-223 SOS is authorized to design, publish, and distribute voter registration applications.
21-2-225 SOS is required to provide and publish certain voter registration information in the form of voter’s lists.
21-2-226 SOS prescribes the format of the voter registration card.
21-2-226(f) SOS to receive applications from county registrars for reimbursement to counties for costs of postage to issue new precinct cards, if funds are available.
21-2-231 SOS prescribes the format of the list of felons received from the clerk of superior court and the list of declared incompetents from the probate court to county election superintendents and deceased electors from vital statistics from each county.
21-2-232 SOS has authority to remove names from electors’ list.
21-2-233 SOS is authorized to compare of change of address information supplied by United States Postal Service with the electors list.
21-2-234 SOS required to conduct voter registration list maintenance activities within the first 6 months of each odd numbered year.
21-2-235 SOS shall maintain an active and inactive list of electors.
21-2-261.1 SOS shall maintain information regarding the location of every precinct in Georgia.
21-2-264 SOS shall administer the release of funds to counties for the purpose of creating new precincts or changing boundary lines.
21-2-284.1 SOS shall prescribe the form of non-partisan run-off ballots.
21-2-285 SOS is authorized to prescribe the form of constitutional amendments and statewide questions, absence direction from the General Assembly.
21-2-286 SOS determines type of ballots for DREs.
21-2-288 SOS authorized to determine whether two candidates for the same office have the same name and may ameliorate such situation by printing the residence of the candidates under their names.
21-2-300 SOS determines type of voting equipment to be used by counties.
21-2-300(d) SOS shall be responsible for the development, implementation, and provision of a continuing program to educate voters, election officials, and poll workers in the proper use of voting equipment.
21-2-324 SOS is required to examine and approve of voting machines used in the State of Georgia.
21-2-325 SOS is authorized to prescribe the form of ballot labels for constitutional amendments and statewide questions, absence direction from the General Assembly.
21-2-325.1 SOS authorized to determine whether two candidates for the same office have the same name and may ameliorate such situation by printing on the ballot label, the residence of the candidates under their names.
21-2-327 SOS required to frame the oath of office for the custodians of voting machines.
21-2-368 SOS authorized to certify optical scan voting systems for use in the State of Georgia.
21-2-369 SOS shall prescribe the form of the optical scan ballot.
21-2-369.1 SOS authorized to determine whether two candidates for the same office have the same name and may ameliorate such situation by printing on the optical scan ballot, the residence of the candidates under their names.
21-2-373 SOS shall prescribe the ballot form for write-in votes.
21-2-374 SOS shall prescribe all forms and supplies for optical scan systems.
21-2-379.2 SOS authorized to certify electronic voting systems for use in the State of Georgia
21-2-379.4 SOS determines form and arrangement of DRE ballots.
21-2-379.5 SOS shall prescribe the form of certain ballot information with DREs.
21-2-379.6 SOS is authorized to collect oaths from custodians of DRE voting systems and is authorized to prescribe the form of certain supplies.
21-2-379.8 SOS shall advise elections superintendents on the public demonstration of DRE machines.
21-2-379.9 SOS determines the manner and form of storage of DRE equipment.
21-2-379.11 SOS allowed to establish system for the modeming of election results from precincts.
21-2-381 SOS is authorized to promulgate rules and regulations regarding the absentee ballot applications.
21-2-381.1 SOS authorized to prescribe the form for special write-in absentee ballots.
21-2-383 SOS shall prescribe the form of absentee ballots in county, state, and federal elections.
21-2-384 SOS shall provide uniform instructions for the manner of preparing and returning the ballot, in form and substance.
21-2-384(b) SOS shall determine size and shape of absentee ballot envelopes.
21-2-400 SOS shall provide cards of instruction for electors and other appropriate supplies to the superintendent.
21-2-402 SOS shall prepare and furnish voter certificates to the superintendent for primary and general elections.
21-2-414(g) SOS is authorized to prepare material designed for the sole purpose of encouraging voter participation in a current election to be distributed by a poll officer.
21-2-417 SOS approves the form for a statement of oath used when a voter does not have the proper identification and wishes to cast a provisional ballot.
21-2-418 SOS prescribes the form of a provisional ballot voting certificate.
21-2-456 SOS authorized to create the form of General return sheets and reports for municipal elections.
21-2-480(h) SOS, as directed by the General Assembly, shall determine brief form of proposed constitutional amendments or other questions in the event of a failure to do so by the Constitutional Amendments Publication Board, to be printed on optical scan ballots.
21-2-482 SOS authorized to establish the form of optical scan ballot
21-2-495(c) A request for a recount for a federal office or for a state office shall be made to the Secretary of State, if more than one county is involved. The Secretary of State shall direct that the recount be performed in all counties in which electors voted for such office and notify the superintendents of the several counties involved.
21-2-496(a) SOS to furnish forms for the consolidated return of the primary to the superintendent.
21-2-496(b) SOS authorized to provide superintendent with a method for filing primary and general election results electronically; SOS authorized to promulgate rules and regulations necessary to provide for the electronic returns.
21-2-497(4)(A) SOS shall provide forms for returns for the election for federal and state officers to the superintendent and receive results of such elections from the superintendent.
21-2-497(4)(B) SOS receives from the superintendent a certified copy of the returns for elections for any county officer or other officer required by law to be commissioned by the Governor.
21-2-497(4)(C) SOS to receive and maintain records of the certified returns, the official citation of the Act involved, and the purpose of referendum elections.
21-2-497(4)(D) SOS to receive, canvass, and tabulate the returns of constitutional amendments and certify the result to the Governor.
21-2-497(4)(E) SOS to receive from each superintendent a separate return for the election of presidential electors and certify the results.
21-2-499(a) SOS receives certified returns from superintendents and tabulates the results.
21-2-501(a) SOS determine the run-off day for an election if the original runoff date was postponed by court order (this date must be between the 14th and 21st day after the original election).
21-2-502(a) SOS transmits the certified election results for the offices of Governor, Lieutenant Governor, Secretary of State, Attorney General, State School Superintendent, Commissioner of Insurance, Commissioner of Agriculture, or Commissioner of Labor, to the incoming Governor upon him or her taking the oath as Governor.
21-2-502(e) SOS receives and computes returns of presidential electors then shall lay them before the Governor.
21-2-502(f) SOS certifies results of all constitutional amendments and forwards them to the Governor.
21-2-502 SOS issues commissions to those elected.
21-2-543 SOS receives from the Governor a writ of election for a special election when a vacancy for office of Representative in the United State Congress exists, transmits the writ of election to county superintendents and publishes a call of the special election.
21-2-544 SOS receives from the Governor a writ of election for a special election when a vacancy for office of either house of the General Assembly during a session of the General Assembly or whenever such vacancy shall occur or exist at a time when the members of the General Assembly shall be required to meet, transmits the writ of election to county superintendents, and publishes a call of the special election.
21-2-586 Prohibits the SOS from willfully refusing to permit public inspection of documents or willfully destroying, removing or altering documents with direction from a competent authority.
21-4-3 SOS serves as election superintendent for case of elected state officers (definition of “election superintendent”).
21-4-5(b)(3) SOS prints the official application form for a recall petition.
21-4-5(e) SOS prints the official affidavit of signature withdrawal form for a recall petition.
21-4-5(j) SOS prints the official recall petition form.
21-4-13(c) SOS to call for recall election if election is for the Governor.
21-4-17 SOS authorized to promulgate rules and regulations to carry out recall of public officers.
21-5-6 SOS serves as Secretary of the Ethics Commission and performs ministerial functions as required by the commission.
21-5-30(b) SOS shall receive the name and address of the chairperson and treasurer of a campaign committee before such committee accepts contributions.
21-5-30(g) SOS shall receive a declaration of intention to accept campaign contributions before a candidate or his/her can lawfully accept campaign contributions.
21-5-34 SOS shall collect and file required campaign contribution disclosure reports from a candidate or campaign committee.
21-5-34 SOS accepts registration form any person who makes contributions, accepts contributions for, or makes expenditures on behalf of a candidate.
21-5-34.1 SOS accepts electronically filed campaign disclosure reports.
21-5-50 SOS accepts public officer financial disclosure statements. (This information is not addressed in this code section)
36-4-4 SOS shall certify the results of local elections involving the change of a county site.
36-8-1 SOS accepts certificated election results for county police.
36-35-3 SOS receives certified results for amendments to a municipality’s charter.
36-35-4.1 SOS accepts any maps or communications with the Department of Justice regarding reapportionment of election districts.
45-13-20 Duties of the SOS which include keep the Great Seal, preserve records and Acts, attest official documents from the Governor with the seal, record grants issued by the state, keep bonds of agents authorized to disperse public money, provide applicable records to public, destroy expired election results, record commission dates of state civil and military officials, keep records of land granted and report records to Governor, keep state authorized survey maps, keep a record of grantees and the dates of the grant, keep records of all survey maps requested by the General assembly, contract for the survey of new maps upon request of General Assembly, certify under seal, print current legislative and representative district maps for the GA Senate and House of Representatives.
45-13-24 SOS mails copies of legislation of local applicability to the election superintendent and governing authority of the applicable county or municipality.
45-13-47 SOS authorized to print and distribute at least one copy of the official statistical state register to each member of the general assembly, each state department head, each state high school and each University System unit.
45-8-211 SOS receives certified returns from elections involving the interim and emergency filling of vacancies in office of tax receiver, collector, or commissioner.
48-7-142 SOS receives the certification of county referendum elections to decide whether to levy local taxes.
48-8-85 SOS receives certified results from elections involving referendums to decide imposition of joint municipal and county sales and use taxes.
48-8-92 SOS receives certified results from elections involving referendums to decide discontinuing the imposition of joint municipal and county sales and use tax.
48-8-103 SOS receives certified results from elections involving referendums to decide the imposition of homestead option sales and use tax.
48-8-106 SOS receives the certification of county referendum elections to decide whether to discontinue homestead option sales and use tax.
48-8-111 SOS receives the certification of county referendum elections to decide the imposition of special purpose local option sales tax.
48-8-202 SOS receives the certification of county referendum elections to decide the imposition of water and sewer projects and costs tax.
50-12-101 SOS to utilize numbers assigned by the Constitutional Amendments Publication Board when developing ballots for ratification or rejection.

APPENDIX C

Official Code of Georgia provisions addressing elections and election related responsibilities of the State Election Board.

CITATION DESCRIPTION
21-2-30 Creation and description of the composition of the SEB.
21-2-31 Powers and duties of the SEB.
21-2-32 Power of the SEB to institute or intervene in court actions.
21-2-33 Provisions for administrative hearings before the SEB.
21-2-33.1 Powers provided to the SEB and the Attorney General in relation to allegations and violations of election laws.
21-2-34 Payment of compensation and expenses for members of the SEB.
21-2-100 SEB granted power to fine superintendents and governing authorities for failure of required persons to attend election law training.
21-2-101 SEB granted power to fine superintendents and governing authorities for failure of required persons to obtain required training certification.
21-2-215(f) Duty of the SEB to adopt rules and regulations for criteria for selecting voter registration locations.
21-2-231(f) SEB granted power to impose civil penalty on registrars for failing to properly maintain the voter registration list.
21-2-284(b) Duty of the SEB to provide by rule and regulation on the appropriate wording for directions as to how votes should be cast on voting equipment.
21-2-324(e) SEB given the authority to fine vendors selling in Georgia voting machines not certified by the Secretary of State.
21-2-368(e) SEB given the authority to impose a civil penalty vendors selling in Georgia optical scan voting systems not certified by the Secretary of State.
21-2-373 Duty of the SEB to promulgate rules and regulations for ballot secrecy in relation to write-in votes.
21-2-379.2(e) SEB given the authority to impose civil penalties on or require reimbursement of costs and expenses from vendors selling in Georgia direct electronic voting systems not certified by the Secretary of State.
21-2-408(b) SEB designated as the recipient of designations of statewide poll watchers.
21-2-418(g) SEB given the authority to impose sanctions on registrars and counties which fail to establish a system of free access for provisional ballots.
21-2-524(b) Requirement that the SEB be served with a copy of election contest petitions.