Atlanta council seat hangs on court decision

By TY TAGAMI
The Atlanta Journal-Constitution
Published on: 12/21/05

It's been more than a month since Atlanta voters went to the polls, yet the outcome of one city council race still hangs in the balance.

Anne Fauver, who has represented the area around Piedmont Park for the past four years, beat challenger Steve Brodie by five votes. Brodie, however, is demanding a run-off election, asserting in court that Fauver did not win a majority of all votes cast.
The outcome hinges on what constitutes a countable vote. Under state law, a write-in vote for city council does not count if it is cast for someone who is not a certified write-in candidate. To become an official write-in candidate in Atlanta, a person must file paperwork with the city clerk and notify the public with an ad in the Fulton County Daily Report, a legal newspaper. No one did so in the District 6 race.

In oral arguments in Fulton County Superior Court Tuesday, a special judge heard lawyers for both candidates assail and defend the constitutionality of the state law on write-in votes.

The law is in question because nine voters in the District 6 election chose to mark the write-in portion of their ballots, instead of selecting Fauver or Brodie. In accordance with law, Fulton County election officials did not count those nine votes in the total, and calculated Fauver had a majority of all votes cast. But Brodie notes that if those nine votes are counted toward the total, then Fauver has only 49.97 percent of the vote.

If no candidate garners a majority, then a run-off election is required under Georgia law.

Attorney Michael Coleman, arguing for Brodie, said those nine voters were cheated of their right to vote. "The failure to count a write-in vote is tantamount to taking a vote away," he said, adding that the Georgia Legislature violated the state constitution when it required that votes for people who aren't candidates be ignored.

But Robert Highsmith, an attorney for Fauver, argued that the state constitution delegated to the Legislature the authority to dictate how elections are decided. The Legislature passed a law requiring that the outcome of city council races be decided by majority vote, so the basic assertion of Brodie's camp — that Fauver did not win by a majority — is not a constitutional question, Highsmith said.

"Nowhere in the constitution is a majority vote required," he said.

One election expert said the case poses an interesting question: if citizens essentially throw their votes away by casting ballots for someone who isn't a candidate, should their votes be counted? "It's an odd situation that voting for someone who has no chance of winning effects the outcome of the race," Emory law assistant professor Michael Kang said. He predicted that if the case reached the federal level, Brodie would have a hard time winning because the federal courts tend toward pragmatism in election law. He said they consider it more important to count votes for viable candidates and to conclusively decide elections than to count protest votes.

There is pressure to decide the case quickly. The winner of the election is scheduled to be sworn in Jan. 3. The special judge assigned the case, retired DeKalb County Superior Court Judge Hilton M. Fuller, said he hoped to have a decision by next week. He gave no indication Tuesday how he would rule.

The losing side could appeal the decision to the Georgia Supreme Court.