HOMER – An election challenge by former Georgia House District 28 Rep. Dan Gasaway got underway in Banks County Superior Court on Monday and will continue later this week.
On Monday, Gasaway’s case against the boards of elections and registration in Banks, Habersham and Stephens counties and against current House District 28 Rep. Chris Erwin began before Senior Judge David Sweat.
Sweat was designated by the 10th District administrative judge to hear the election challenge.
During a group administration of oaths Monday morning, at least a dozen witnesses in the audience of the packed courtroom were sworn for testimony later in the case, then sequestered about 9:30 a.m.
That was followed by a discussion about the inclusion of Banks County Sheriff Carlton Speed.
Gasaway’s lawsuit asserts Speed and family do not live within House District 28. All of Banks County is located within House District 28.
Jake Evans, attorney for Gasaway, argued strongly against the inclusion of Speed in the case.
After discussion, Sweat granted the motion to intervene for Speed for the sole purpose of the legitimacy of his vote.
Evans said election irregularities are a bigger issue than just those who are party to the case.
“We are here merely to ensure that elections are properly done, to make sure that the democracy on which this country was founded is maintained and the people across Georgia, across the country, but especially in House District 28 feel that their elections were properly administered,” Evans said during his opening arguments. “It is more important in this case than just about any case I’ve ever dealt with, and that’s because it was decided by two votes.”
Evans argued the court must throw out the Dec. 4 House District 28 re-do results where Erwin unseated Gasaway for the second time and order yet another House District 28 election.
“This is bigger than all of the people and issues in this courtroom,” Evans argued. “If we don’t order a new election, any other result undermines the public confidence in the electoral system, undermines American democracy, and condones a failure to properly administer elections and fosters a lack of accountability.”
After determining that Gasaway’s legal counsel did not intend to challenge any Stephens County voters, sequestered witnesses and other parties from Stephens County, other than County Attorney Brian Ranck, were excused about 10:30 a.m.
Homer resident Sandra K. Denton testified that when she voted in the House District 28 Special Election on Dec. 4 she selected “Previous” to review her ballot before casting but the electronic voting machine in Banks County kicked out the voter card before she could make sure her ballot reflected her choice for the office.
“I did not hit cast,” Denton said.
Michael Charles Burrell of Mt. Airy testified he went to First Baptist Church of Cornelia about 5:30 p.m. Nov. 30 to cast a ballot for the Dec. 4 House District 28 Special Election. When he checked in at the polling location, he was told he had already cast a ballot on Nov. 28.
Burrell testified he did not vote on Nov. 28 and the signature on the voter certificate for the person who voted two days earlier did not match his own. After about 25 minutes of consultation with elections officials, Burrell said he was allowed to vote.
Gasaway said his legislative office in Atlanta was contacted by Burrell shortly after the election to alert him about the problem. Initially, Gasaway said he thought it might have been someone playing a prank on him but later learned that was not the case.
Burrell testified he only met Gasaway in October 2018 at a Currahee Military Weekend event in Stephens County, where Gasaway was campaigning.
After investigating Burrell’s concerns, Gasaway told Burrell that based on information obtained from the Georgia Secretary of State’s Office Elections Division, Burrell received credit for whoever cast a ballot in his name on Nov. 28, not the ballot he cast at First Baptist Church of Cornelia on Nov. 30.
“That’s very important to me,” Burrell said. “It’s my right to vote. I didn’t like it … my vote was not counted.”
Gasaway took the stand about 11:30 a.m. and was sworn by Sweat.
“I’ve had some anecdotal reports of errors like the previous witness [Burrell] that contacted my office,” Gasaway testified. “At that point I was certainly looking for errors. We found numerous errors.”
Gasaway said the number of errors that occurred during administration of the Dec. 4 House District 28 Special Election exceeds even the number specified in his lawsuit that challenges the outcome of the House District 28 Special Election on Dec. 4.
Gasaway’s complaint lists nearly 60 voting irregularities, but he said in the interest of time he only intended to prove 21.
“I’ve had people reporting errors to me of disenfranchising in Banks County in the past week that aren’t part of the litigation,” Gasaway said.
During his time on the witness stand, Gasaway responded to questions from Evans about many of the voters named in the lawsuit, pulling up warranty deeds, voter certificates, absentee ballot applications and other documentation on a computer projection.
About 3:15 p.m., Sweat expressed concern that a number of witnesses remained sequestered and had given up their day of work or other activities to comply with subpoenas served for the case.
During cross-examination by Erwin’s attorney Brian Tyson, Gasaway responded to the question of whether he believes election registration is a function of the county.
“I think there’s a state component to it as well,” Gasaway said. “And there’s a citizen component. I’m not an expert.”
Later in questioning, Tyson asked Gasaway for his current employment.
“Currently, I’m full-time fighting election lawsuits,” Gasaway said.
In response to an objection by Gasaway’s attorney for the relevance of the question, Tyson said, “I think it goes to the question of Mr. Gasaway’s interest in getting back into the legislature.”
The judge then addressed Evans’ objection with his own questions.
“So, do you think there might be any income if he succeeds in this lawsuit and eventually has another election?” Sweat asked. “Would that be a financial motivation?”
Evans asserted any potential financial gain by Gasaway is not relevant to the legal standard that calls for a new election due to irregularities.
“I think it’s clear that he wants a new election, but I don’t know how it’s relevant [to discuss that],” Evans said.
Evans went on to call to the stand Carrie Akers, who he asserted has a mailing address in Cornelia that is different from where she currently resides in the Banks County side of Alto. That Cornelia land address appears on Akers’ voter documentation.
“I was asked to put in my mailing address, which is exactly what I did,” Akers testified, saying that address is where she receives mail.
Gasaway had argued earlier that no home exists on the 13-acre property where Akers receives her mail outside Cornelia.
Akers testified grading for a house has been conducted, but no house is located on the property at this time, but that she didn’t believe she had done anything wrong.
In response to cross-examination by Erwin’s attorney, Akers said she learned she was a part of the case last Thursday when she was served with a subpoena from Evans, but after talking with Gasaway’s attorney thought signing an affidavit stating she sold her Mt. Airy house in 2017 would prevent her from having to testify in court.
“I was told that if I signed a subpoena, I would probably not have to appear in court,” Akers said. “I’m sorry, it was an affidavit.”
After consulting an attorney, Akers said she submitted a modified affidavit to Evans that also address the property where she receives mail.
Akers said she felt Gasaway’s attorney told her she had committed a crime.
“Mr. Evans did say to me that I had committed perjury and that that was an offense and he did not want to put me on the stand and embarrass me,” Akers testified.
Evans again questioned Akers.
“Do you think it is a fair characterization to say that when we spoke on Friday that I threatened to bring a criminal action on you?” Evans asked Akers.
“Yes,” Akers said, after Evans refused to accept her, “I don’t judge your character” answer and demanded a yes or no answer.
In response to Evans asking in what way Akers perceived the conversation that way, she said, “It was accusing me of committing a crime and I had no idea. I didn’t know I was doing anything wrong. I thought I was doing the right thing by voting.”
Evans said he didn’t feel Akers was giving a fair characterization of their conversation, but said “to the extent it was, I apologize.”
After about 25 minutes on the stand, Akers was dismissed, and Patricia Bower was called to testify.
Questioned by Evans about different addresses listed for her on an Oct. 23, 2018 absentee ballot application and the voter certificate for the Dec. 4 House District 28 Special Election, Bower said her previous address was printed on the absentee ballot application and was not something she did.
Bower testified she updated her driver’s license within the roughly 30 days after she moved and thought that would take care of updating her voter registration. It wasn’t until she learned from others that her eligibility was questioned after the late 2018 elections that she visited the elections office in Habersham County.
Bower produced a voter registration card issued by Habersham County that shows she resides in House District 28.
Evans then called to the stand Constance Franklin, who testified she didn’t realize her new address outside Clarkesville does not fall in House District 28 and that she did not immediately have time to update her driver’s license after moving due to her work schedule.
“I never looked to see what district I was in,” Franklin said. “When I realized I needed to change my address, I filled out a change of address form.”
Sweat agreed to resume the case mid-morning Wednesday, depending on the impacts of the anticipated winter weather event.
At that time, Evans said he plans to call Gasaway’s expert witness, whose testimony could take another couple of hours.
