Bell v. Raffensperger ( 2021 )

In the Supreme Court of Georgia
Decided: May 3, 2021
S21A0306. BELL v. RAFFENSPERGER.
BOGGS, Justice.
Andrew Bell challenges the denial of his application for a writ
of mandamus and injunctive relief in which he sought to compel
Secretary of State Brad Raffensperger to include Bell’s name as an
independent candidate on the ballot for the November 3, 2020
election for Georgia House District 85. Bell claims, among other
things, that he collected the signatures required for him to qualify
as a candidate and that the trial court erred by not requiring the
Secretary to place Bell’s name on the ballot. Because the November
3, 2020 general election is over and the ballots have been printed,
cast, and counted, however, there is no such ballot upon which Bell
could still be placed, this Court cannot grant Bell the relief he
requests, and this appeal must be dismissed as moot.
On March 2, 2020, Bell submitted to the Secretary his notice of
candidacy as an independent for House District 85 for the November
3, 2020 general election. See OCGA § 21-2-132 (d). To qualify as a
candidate for that office, he sought to collect the required signatures
under OCGA § 21-2-170 (b), which in the case of non-statewide
offices is five percent of the registered voters eligible to vote for that
office in the last election. Accordingly, Bell was required to obtain
1,793 signatures. Bell had until July 14, 2020 to file his nomination
petition with the required signatures. See OCGA § 21-2-132 (e).
The COVID-19 pandemic changed these requirements. On July
9, 2020, a federal court issued an injunction directing the Secretary
to lower the signature requirement by 30 percent in light of the
burden imposed by the pandemic on voters’ and candidates’ rights.
See Cooper v. Raffensperger, 472 FSupp.3d 1282, 1296-1297 (III-IV)
(N.D. Ga. 2020). This injunction reduced the number of signatures
Bell was required to obtain to 1,255. In recognition of these same
burdens, the Secretary extended the signature-gathering period
from 180 days to 211 days, moving the deadline for submitting
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nomination petitions to August 14, 2020.
On August 13, 2020, Bell submitted his nomination petition to
the Secretary; the petition included 2,200 signatures. On September
4, Bell received an email from the Secretary notifying Bell that his
petition was denied because he had failed to submit the required
1,255 signatures. The letter attached to the email indicated that of
the submitted signatures, only 827 were valid and verified; the rest
were out of district, duplicates, printed names rather than
signatures, for persons not registered to vote, or illegible.
In response, on September 8, 2020, Bell filed an emergency
application for writ of mandamus and injunctive relief in the Fulton
County Superior Court against the Secretary in his official capacity. 1
See OCGA § 21-2-171 (c). In his application, Bell complained about
communication issues with candidate registration and election office
staff regarding the status of his nomination petition, the fact that he
was not notified until September 4 that his nomination petition had
been denied, and the fact that the denial letter he received had the
1 Bell is pro se and has been throughout the course of these proceedings.
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wrong date and the previous Secretary listed on the letterhead.
Bell’s application sought the following relief: (1) a temporary
restraining order prohibiting the Secretary from printing any ballots
without Bell’s name in advance of a hearing; (2) an injunction either
prohibiting the Secretary from printing the ballot without Bell’s
name or requiring the Secretary to place him on the ballot; and (3)
a writ of mandamus ordering the Secretary to validate Bell’s
signature petition and place him on the ballot.
On September 9, 2020, Bell sought an ex parte hearing. The
trial court then scheduled a virtual hearing for the earliest possible
date in accordance with the Secretary’s right to five days’ notice
under OCGA § 9-10-2, which was September 15.2 On September 11,
Bell filed a discovery request for, among other things, copies of the
2 OCGA § 9-10-2, in pertinent part, reads as follows:
Any . . . judicial action by any court in this State in any matter in
which . . . an official of this state in his official capacity is a party
defendant . . . shall be void unless it affirmatively appears as a
matter of record . . . :
(1) That the Attorney General was given five days’ advance
written notice by the adverse party or his attorney of the
time set for the particular trial, hearing, or other
proceeding[.]
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“examined nomination petitions.” The Secretary did not produce the
requested discovery by the hearing date. Bell never filed a motion to
compel discovery. The court denied Bell’s application orally at the
September 15 hearing and by written order on September 17, ruling
that Bell failed to assert a clear legal right to relief, as required for
mandamus, and that Bell failed to demonstrate that he submitted
the required number of verified signatures or that the rejected
signatures were rejected in error.
On September 22, 2020, Bell filed in this Court an “Emergency
Application for Appellate Review” of the trial court’s order, which
was docketed as an application for discretionary appeal and then
granted under OCGA § 5-6-35 (j) on October 16. Bell filed a notice of
appeal in the trial court on October 5, and after the appeal was
docketed here on October 16, he filed his brief in this Court on
October 29. Bell never moved for expedited treatment of this
appeal.3
3 We recognize that OCGA § 21-2-171 (c) provides in part as follows:
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The ballots for the November 3, 2020 general election were
printed on September 15. Early voting began on October 12 and
ended on October 30. Since this appeal was docketed in this Court,
the November 3, 2020 general election and January 6, 2021 run-off
election have both occurred, the results of those elections have been
certified, and the seat for the next term as representative of House
District 85 has been filled by the previous incumbent, Karla
Drenner.
From any decision of the superior court an appeal may be taken
within five days after the entry thereof. It shall be the duty of the
appellate court to fix the hearing and to announce its decision
within such period of time as will permit the name of the candidate
affected by the court’s decision to be printed on the ballot if the
court should so determine.
Bell never invoked the latter sentence of this provision in his application
or initial briefing. By the time his appeal was docketed here and it was clear
from his brief that he was enumerating as error a superior court decision on a
nomination petition under OCGA § 21-2-171, his appeal was already moot, as
we explain below. But we take this opportunity to emphasize that an appellant
seeking to rely on the expedited-review provision in OCGA § 21-2-172 (c)
should alert the Court that the appeal involves a decision on a nomination
petition by filing a motion for expedited appeal citing that provision. See, e.g.,
Lewy v. Beazley, 270 Ga. 11, 12 (507 SE2d 721) (1998) (deciding on the merits
an appeal from the denial of mandamus under OCGA § 21-2-271 (c) when,
“[a]fter timely filing her notice of appeal, Lewy applied to this Court for an
expedited appeal pursuant to OCGA § 21-2-171 (c), which was granted by the
Court”).
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1. Bell claims that he did collect the required number of
signatures to be placed on the November 3, 2020 general election
ballot for the House District 85 race as an independent candidate
and that the trial court erred in denying his application for a writ of
mandamus and injunctive relief to compel the Secretary to place him
on the ballot. We need not address the merits of Bell’s claims
because this appeal must be dismissed as moot.
When a nomination petition is denied by the Secretary, a
petitioner may seek review of that decision by a superior court “upon
an application for a writ of mandamus to compel the granting of such
petition.” OCGA § 21-2-171 (c). Under the procedures outlined in the
statute, the decision of the superior court may then be appealed to
this Court. See id.
An appeal, however, must be dismissed “[w]here the question[]
presented has become moot.” OCGA § 5-6-48 (b) (3). “An appeal
becomes moot if the rights insisted upon could not be enforced by a
judicial determination.” Randolph County v. Johnson, 282 Ga. 160,
160 (1) (646 SE2d 261) (2007). Put another way, when “the act that
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is the subject” of the requested relief “is completed, then the matter
is moot and no longer subject to appeal.” City of Comer v. Seymour,
283 Ga. 536, 537 (661 SE2d 539) (2008) (applying mootness doctrine
to a request for injunction); see also Baez v. Miller, 266 Ga. 211, 211
(465 SE2d 671) (1996) (same as to a writ of mandamus).
This mootness principle applies in the election context. We
acknowledge, however, that some of our election-contest cases have
simply declared an appeal moot due to the occurrence of the general
election rather than analyzing whether various claims on appeal
were moot in light of the specific relief sought.4 To be clear: an appeal
4 See, e.g., Bodkin v. Bolia, 285 Ga. 758, 759-760 (684 SE2d 241) (2009)
(mandamus action to force the Secretary to print candidate’s name on the
ballot deemed moot by occurrence of the general election); Randolph County,
282 Ga. at 160 (1) (challenge to writ of prohibition preventing a hearing on the
qualifications of a candidate whose name was on the ballot deemed moot by
occurrence of the general election); Brooks v. Brown, 282 Ga. 154, 154-155 (646
SE2d 265) (2007) (challenge to the date of the election deemed moot by
occurrence of the general election); Palmer v. Conner, 247 Ga. 35, 36 (273 SE2d
612) (1981) (“Because the general election has already taken place, it is too late
to conduct a second primary run-off and this appeal must be dismissed as
moot.”); Barker v. Cook, 242 Ga. 780, 780 (251 SE2d 553) (1979) (challenge to
candidate’s qualifications deemed moot by his loss in the general election). We
need not go back and review the details of each of these prior cases in order to
determine whether they all correctly applied the mootness doctrine, as this
opinion clarifies the proper approach. See DeKalb County School District v.
Gold, 307 Ga. 330, 335-336, 336 n.5 (3) (834 SE2d 808) (2019).
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is moot when this Court can no longer provide the specific relief
requested; election cases are no exception.
Here, Bell asks this Court to reverse the trial court’s order and
direct the trial court to grant him the specific mandamus and
injunctive relief he requested: to either compel the Secretary to put
his name on the November 3, 2020 general election ballot or prohibit
the Secretary from printing ballots without his name on them. But
the ballots for the November 3, 2020 general election had been
printed a month before Bell’s appeal was docketed in this Court, and
early votes had been cast using those ballots for two weeks before
Bell filed his brief. The November 3, 2020 general election, including
the House District 85 race, is now over, and the election result has
been certified. Therefore, through injunction, to the extent that
injunctive relief is even available in a case of this type, and
mandamus, Bell seeks to stop the printing of ballots that have
already been printed, cast, and counted, and he seeks to compel the
Secretary to place his name on a ballot that no longer exists for an
election that has already occurred. This Court is no longer capable
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of granting the type of relief Bell requests, so this appeal is moot.
See Bodkin, 285 Ga. at 759-760; see also Merry v. Williams, 281 Ga.
571, 571–572 (1) (642 SE2d 46) (2007) (mandamus petition to compel
a new election for a city’s mayor pro tempore for 2006 was moot
when “the year 2006 ended and Defendants performed the public
duty of electing a new Mayor Pro Tempore for 2007”).
Because Bell’s claim for mandamus and injunctive relief is
moot, this appeal must be dismissed.
Appeal dismissed. All the Justices concur.
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