¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2 In the Supreme Court of Georgia
¶3 Decided: December 10, 2024
¶4 S25A0095. PONDER et al. v. DAVIS et al.
¶5 MCMILLIAN, Justice.
¶6 In May 2024, Appellant Tabitha Ponder ran against and lost to
¶7 Jeffrey Davis for a seat on the Georgia Court of Appeals. Three
¶8 weeks after her loss, Ponder, along with an elector, Randolph Frails,
¶9 filed the underlying election contest petition, asserting that Davis
¶10 was not qualified to run as a candidate in the election because he is
¶11 not a resident of Georgia. Appellants Ponder and Frails appeal from
¶12 the superior court’s dismissal of that election contest petition.
¶13 Because Appellants have failed to do “everything within their power
¶14 to have their claims decided before the election occurred,” we
¶15 “dismiss the appeal without reaching the merits (or lack thereof).”
¶16 Catoosa County Republican Party v. Henry, 319 Ga. 794, 794-95 (906
¶17 SE2d 750) (2024). Prior to the election which took place on May 21, 2024, Frails
¶18alone filed a challenge to Davis’s qualifications to run as a candidate
¶19under OCGA § 21-2-5, alleging that Davis was not a resident of
¶20Georgia. That challenge requested the Secretary of State to
¶21“[p]lease initiate proceedings into and expeditiously refer the
¶22matters to an administrative law judge at the Office of State
¶23Administrative Hearings for a hearing,” though it did not request a
¶24hearing or decision by any particular date. An administrative law
¶25judge initially found that Davis failed to prove that he actually
¶26resided at the address he provided at the time he submitted his
¶27declaration of candidacy and accompanying affidavit to qualify for
¶28the election. Thereafter, the Secretary of State reviewed the
¶29administrative law judge’s initial decision and issued his final
¶30decision on May 16, 2024, finding that Davis satisfied his burden by
¶31proving by a preponderance of the evidence that he was a Georgia
¶32resident at the time of qualifying based on facts such as his voter’s
¶33registration, voting history, and driver’s license. The next day,
¶34Frails filed in the superior court a petition for judicial review of the
¶35 2 Secretary’s final decision under OCGA § 21-2-5 (e); Frails also
¶36moved for an emergency hearing on his petition and moved to stay
¶37the certification of the election results until his challenge was
¶38decided. It does not appear, however, that Frails moved to stay the
¶39election itself, and Frails has not otherwise shown how he has acted
¶40with dispatch to resolve his claims prior to the election taking place.
¶41Also, it does not appear that Ponder openly or formally participated
¶42in Frails’s challenge or that she filed her own pre-election challenge.
¶43 On May 21, 2024, the election was held, with Davis receiving
¶4457.1% of the votes and Ponder receiving 42.9%. According to the
¶45superior court, “[a]s requested by Petitioner, the Court held a
¶46hearing on Friday, June 7,” after which it entered an order
¶47dismissing Frails’s petition as moot because the election had already
¶48occurred and the results were certified by the Secretary of State.
¶49Frails did not appeal that order.
¶50 Rather, on June 11, Ponder and Frails filed this separate post-
¶51election contest petition under OCGA § 21-2-524 against Davis, the
¶52Fulton County Board of Registration and Elections, the Fulton
¶53 3 County Department of Registration and Elections, and John or Jane
¶54Doe as a Public Officer of the State of Georgia,1 asserting that Davis
¶55was not a resident of Georgia and requesting that the superior court
¶56declare Ponder the winner of the election. Motions to dismiss on
¶57various grounds were filed, including that the petitioners’
¶58verifications failed to assert “that according to the best of his or her
¶59knowledge and belief the contested result of the primary or election
¶60[was] illegal and the return thereof incorrect,” as required by OCGA
¶61§ 21-2-524 (d). On July 22, Ponder and Frails moved for leave to
¶62amend their original petition to substitute the Secretary of State as
¶63a party and to correct the petition’s verifications. On August 5, the
¶64superior court held a hearing on the parties’ motions, and on August
¶657, it entered an order dismissing Ponder and Frails’ petition against
¶66all parties.
¶67 In the order, the superior court ruled that the verifications filed
¶68with the original petitions failed to meet the requirements of OCGA
¶69 1 Appellants later voluntarily dismissed the Fulton County Department
¶70of Registration and Elections and attempted to substitute the Secretary of State in place of John or Jane Doe. 4 § 21-2-524 (d). The court then denied Ponder and Frails’ request for
¶71leave to amend the defective verifications, reasoning that although
¶72the Election Code requires “prompt disposition of election disputes,”
¶73Ponder and Frails did not file their petition challenging the election
¶74until 21 days after the election and then waited until 62 days after
¶75the election to seek to amend the verifications. The court dismissed
¶76the petition on the grounds that the verifications were defective and
¶77then went on to make a number of alternative rulings supporting
¶78dismissal. On appeal, Ponder and Frails enumerate several alleged
¶79errors regarding the merits of the superior court’s rulings.
¶80 Before turning to the merits, we first consider the effect of
¶81Appellants’ failure to pursue with dispatch their challenge to Davis’s
¶82qualifications before the May 2024 election took place or to
¶83otherwise seek a stay of that election so that their claims could be
¶84resolved prior to the election occurring. We have explained that
¶85challengers are required to do all they can to ensure that their
¶86claims are resolved before an election occurs and that for prudential
¶87reasons, courts generally should refrain from exercising their
¶88 5 jurisdiction to invalidate an election when a party has failed to act
¶89with dispatch to resolve issues that could have been raised and
¶90resolved before an election takes place. See Miller v. Hodge, 319 Ga.
¶91543, 548-49 (1) (905 SE2d 562) (2024) (explaining that “the
¶92occurrence of a subsequent election does not necessarily ‘moot’
¶93issues related to a previous one[,]” but there are “various prudential
¶94reasons for courts to limit their exercise of jurisdiction and to refrain
¶95from invalidating elections after the fact when the challenging party
¶96has not acted with dispatch to litigate their claims before a
¶97subsequent election[,]” and such prudential considerations
¶98“continue to counsel the courts in limiting the exercise of
¶99jurisdiction”); see also Henry, 319 Ga. at 798 (noting these
¶100prudential considerations include “in particular, preventing the
¶101unnecessary expense of holding more than one election, assuring the
¶102finality of results, and respecting the ‘sanctity’ of elections ‘wherein
¶103the will of the people is the supreme law’” (quoting Miller, 319 Ga.
¶104at 548 (1) (cleaned up))). In Miller, we held that “litigants in election
¶105contests have a duty to expedite resolution of the dispute before an
¶106 6 election is held and that the failure to make every effort to dispose
¶107of election disputes with dispatch before a subsequent election may
¶108result in the dismissal of the case.” 319 Ga. at 549 (1) (citation and
¶109punctuation omitted).
¶110 We reaffirmed these principles even more recently in Henry,
¶111where we explained:
¶112 Elections matter. For this reason, parties wanting a court to throw out the results of an election after it has occurred must clear significant hurdles. And for decades, our precedent has made crystal clear that the first such hurdle is for the parties seeking to undo an election to have done everything within their power to have their claims decided before the election occurred.
¶113319 Ga. at 794. Because the appellants in Henry, who challenged
¶114the qualifications of candidates to run in an election, failed to do all
¶115they could to ensure their claims were resolved before the election
¶116occurred, we dismissed their appeal based on the circumstances and
¶117prudential concerns discussed above. Id. at 797 (“Given the
¶118[appellants’] failure to litigate this appeal with dispatch, our long-
¶119standing precedent directs us to decline to consider their
¶120arguments.”); see also Randolph County v. Johnson, 282 Ga. 160,
¶121 7 160 (1) (646 SE2d 261) (2007) (dismissing board of elections’ appeal
¶122challenging qualifications of candidate when the election had taken
¶123place); Jordan v. Cook, 277 Ga. 155, 156 (587 SE2d 52) (2003)
¶124(dismissing appeal challenging qualifications of opposing candidate
¶125when appellant delayed in filing an appeal until after he lost the
¶126election).
¶127 Appellants have failed to “utilize every available means to
¶128protect [their] rights and to resolve” their challenge to Davis’s
¶129qualifications prior to the election. Miller, 319 Ga. at 547 (1). While
¶130Frails did file a pre-election challenge to Davis’s qualifications, he
¶131never moved to stay the election, chose not to appeal the dismissal
¶132of his pre-election challenge, and has not otherwise shown how he
¶133has acted with dispatch to resolve his claims before the election took
¶134place. Ponder, like Frails, never sought a stay of the election until
¶135the challenges to Davis’s qualifications could be resolved. Indeed, it
¶136does not appear that Ponder participated in any pre-election
¶137challenge at all, instead waiting until three weeks after she lost the
¶138election to file this post-election contest.
¶139 8 Based on the foregoing, we conclude that Appellants have
¶140failed to show that they did all they could to resolve their claims
¶141with dispatch before the election and that the prudential grounds
¶142discussed above counsel for dismissal of their appeal. See Henry,
¶143319 Ga. at 795-800; Johnson, 282 Ga. at 160 (1); Jordan, 277 Ga. at
¶144157. For these reasons, we dismiss the appeal without addressing
¶145the merits of Appellants’ enumerations of error regarding the
¶146superior court’s rulings. See Henry, 318 Ga. at 795, 800; Miller, 319
¶147Ga. at 544, 549 (1), 550 (2).
¶148 Appeal dismissed. All the Justices concur, except Colvin, J., not participating.
¶149 9