Why has a state investigation into a 2016 Sandy Springs city election approached three years without a ruling? A state legislator and elections lawyer said lengthy investigations are not uncommon, but are part of an “insane” process lawmakers may need to change.
State Rep. Scott Holcomb (D-Atlanta), a lawyer who works with election cases, said having an election investigation take this long with little update isn’t acceptable, calling it “insane.”
“It is common, but it’s nuts,” Holcomb said. “It’s pathetic.”
Holcomb said the state legislators may need to look at ways to revamp the process. “It’s probably something the General Assembly needs to take look at,” he said.
The Secretary of State’s investigation into the May 2016 special election for the City Council seat representing District 3 began shortly before voting day. The election was held the same day as a county-run state primary election, but was conducted by the city itself at a single, separate polling place.
That meant that citizens who wanted to vote in both elections had to visit two separate polls, leading the state to investigate the city for possible polling place notification violations.
The investigation began under previous Secretary of State Brian Kemp, who became the state’s governor in January. Although a spokesperson for the Secretary of State’s office said the case was “in the final stages of review” in mid-2017, a hearing with the State Election Board, which rules on cases, has not been set. Tess Hammock, the spokesperson for new Secretary of State Brad Raffensperger, said the office could not discuss cases, but confirmed the hearing has not been held.
City spokesperson Sharon Kraun said the city has not received any updates on the case.
Vincent Russo, a lawyer who previously served as the general counsel to the Secretaries of State’s office under Kemp and Karen Handel, said there is no set time frame for the investigations. Depending on what occurred, it’s not uncommon for investigations to be lengthy, said Russo, who served as former Atlanta mayoral candidate Mary Norwood’s attorney during the close 2017 race eventually won by current Mayor Keisha Lance Bottoms.
“All investigations are different and they depend on the underlying facts and legal issues,” said Russo, who also serves as the general counsel to the Georgia Republican Party. Once the investigation does have its hearing, the Election Board can choose to dismiss the case, issue a “letter of instruction,” or forward the case to the state Attorney General’s office for legal action.
The city held the 2016 election on its own because it could not meet the county’s 90-day notification period and wanted the seat filled as soon as possible. The seat was eventually won by Chris Burnett in a June runoff. He still holds the seat.
When setting up the election, Mayor Rusty Paul and the City Council acknowledged potential confusion and the possibility of a state investigation if the election was not conducted properly. The city set up a special web page to explain the voting process.
The investigation has gone on long enough for one of those council members, Gabriel Sterling, to leave office, lose a race for Fulton County Commission chair, and be appointed as the chief operating officer to new Secretary of State Raffensperger.
Holcomb argued that taking years to complete an investigation is not only a problem because elections are unresolved, but it also can change the result.
“Time is not your friend,” he said. “The more time that passes the harder it is to overturn.”
The longer an elected official is in office, the harder it is to overturn the election, Holcomb said.
“It’s probably going to be a heavy lift,” he said. “As time goes by, it makes it difficult for a court to step in.”
But it’s not common for elections to be overturned to begin with, Holcomb said. It typically only occurs in rare instances where the violation could have changed the outcome of the election.
“It’s very rare,” he said. “It does happen if you can prove the rules weren’t being followed and it changed the outcome.”