The defendants in a lawsuit filed over illegal voting in House District 28 have dropped their appeal to the state supreme court. Attorneys for State Rep.-elect Chris Erwin and the election boards of Habersham, Banks, and Stephens counties withdrew their appeal Monday. Attorney Bryan Tyson filed a notice of withdrawal in Banks County Superior Court after the Georgia secretary of state certified Erwin as the winner of the April 9 special Republican primary.
The move ends nearly a year of contentious legal wrangling over electoral contests between former House District 28 incumbent Dan Gasaway and Erwin. It does not, however, end all of the litigation. There’s still a motion pending in court to determine whether Gasaway can recoup $90,975 in legal fees from the defendants. Erwin may be considering a similar move. He said in court papers that he is considering whether to seek legal fees from his opponent to cover the cost of litigating the motion, according to Daily Report.
The fight over fees follows court rulings that saw two district GOP primaries overturned due to voting irregularities and illegal votes in Habersham County. Erwin won a decisive victory in the third primary on April 9.
Gasaway did not ask for legal fees after successfully challenging the results of his first primary contest against Erwin. But, when more voting problems surfaced in the election do-over in December, he and his counsel put the defendants on notice.
Fight over fees
“If there is any case where an award of attorneys’ fees is warranted, it is this case,” Gasaway’s attorney Jake Evans told Daily Report. “Two votes decided the election [on Dec. 4]. They admitted one vote was illegal. The remaining three illegal votes were affirmed by live undisputed witness testimony, and clear Georgia law.”
In his fee motion, Evans says he presented evidence of illegal voting to the defendants after the December primary. Gasaway’s counsel asked the defendants to admit the votes were illegal and to concede. The defendants refused. Gasaway notified them he intended to ask for legal fees and expenses if the election was overturned a second time.
It was and he did.
“Despite Mr. Gasaway requesting that Respondents save everyone from additional costs by conceding, they refused, doubled-down and forced this case to go through a four-day hearing,” Evans’ motion states. “Respondents’ refusal to concede was not based upon law or facts, but was interposed for harassment, and unnecessarily expanded the proceeding to the detriment of all.”
Erwin’s attorney Bryan Tyson refutes those claims.
“Despite his obvious sour grapes, Mr. Gasaway has not submitted any evidence that Rep.-elect Erwin unnecessarily expanded the proceedings, harassed the defendants, or otherwise engaged in improper conduct,” he states in court papers. Tyson disputes any assertion that Erwin and the other defendants abused the system. He says Erwin and the others were defending election results they presumed were valid.
Both Tyson and Habersham County Attorney Donnie Hunt have filed paperwork opposing Gasaway’s motion for legal fees.
The court has not yet set a hearing date.
