Rep. Dan Gasaway testifies before Senior Judge David Sweat during an election lawsuit hearing in Banks County on Sept. 18. (Daniel Purcell/Now Habersham)
Voters in Habersham, Banks, and Stephens counties will head back to the polls on December 4th to decide who’ll be their next state representative.
During a court hearing Wednesday in Banks County, Senior Judge David Sweat set the date and conditions for a primary “re-run” between incumbent Rep. Dan Gasaway and challenger Chris Erwin.
Only those who voted Republican or Nonpartisan in May and are still registered in HD 28 in November may vote in the December primary. Any otherwise eligible voter who’s been convicted of a felony since May will not be allowed to vote.
Since the deadline for write-in and third party candidates has passed, Gasaway and Erwin will be the only HD 28 candidates on the ballot. Whoever wins will be sworn into office. The Secretary of State’s Office says a general election will not be necessary.
Re-run ordered due to illegal votes
Erwin won the May 22nd HD 28 GOP primary by 67 votes. He went from Representative-elect to challenger after Judge Sweat voided those election results on Sept. 18. Sweat made his decision based on evidence presented in a court that showed dozens of voters were given the wrong ballots.
“It’s the court’s view that a new election will have to be held so that people will have confidence in the results,” Sweat said in handing down his ruling.
Erwin has 10 days to appeal but has not yet said whether he intends to do that.
The evidence
When Rep. Gasaway contested the election results and filed a lawsuit back in June, Habersham County joined with other defendants and tried to dismiss the case. Three months later, on Aug. 29, the county did a complete turnaround. Habersham County admitted 70 votes in the May 22nd primary were illegally cast by Republican voters who the county had assigned to the wrong State House districts.
Habersham County Board of Elections Supervisor Laurel Ellison testified 37 Republicans voted in the House District 10 primary when they should have voted in District 28 and 33 voters who cast ballots in District 28 belonged in District 10.
In all, Ellison says her office identified 402 misassigned voters in Habersham County. She mailed letters to those voters in mid-June and later publicly stated that the districting errors had been corrected.
Gasaway testified he first learned of the problem when his wife came home from school and told him a colleague who lived in his district couldn’t vote for him because his name wasn’t on her ballot. He contacted the Secretary of State’s Office which then quickly launched an investigation by the State Election Board.
Data analysis
Gasaway hired data analyst Mark Davis, president of Data Productions Inc., to research how many District 28 voters were misassigned. Davis used digital mapping, geo-coding, and the state certified voter list to determine that. He said he found 1,100 districting errors in House District 28 and adjoining areas. “It’s not just this district,” he said, “It’s all over the state.” Davis said these districting issues have existed for 20 years and “I’ve been working to try to fix them.”
Davis confirmed at least 70 illegal votes were cast in Habersham County in the May 22nd HD 28 primary. Two illegal votes were cast in Stephens County.
Most of the errors involve voters who live on or near district lines.
Stephens County Elections Superintendent Bill Cochran testified that a Franklin County couple was mistakenly assigned to House District 28 because their mailbox is in Stephens but their house sits over the line.
When Habersham County commissioners called for a new election on Aug. 29, Stephens County voluntarily agreed, but Banks County refused. Banks County Commission Chair Jimmy Hooper said they wanted to let the judge decide.
In court, Erwin’s attorney Brian Tyson challenged the methods used by Habersham County and Davis to identify the misassigned voters. He said it wasn’t specific enough. Tyson argued they should have used census blocks and had experts evaluate them. Gasaway’s attorney Jake Evans countered that argument, saying there’s nothing in state law to prohibit reliance on the methods that were used. He added, “Nothing was offered in the record to controvert it.”
Judge Sweat agreed.
After the hearing, Gasaway said he was relieved.
“This was the right ruling and this should encourage all citizens that people are looking out for their system,” Gasaway said. “I didn’t do this just for me.” The three-term incumbent added that “if votes aren’t counted right that should concern everybody in our country and everybody in our state and everybody in our counties. Votes should be counted right. There’s no reason for things like this to happen in the days of technology we have today.”
Erwin said he was surprised and disappointed by Judge Sweat’s ruling. “Absolutely, we felt we were in the right from the beginning with the information given to us,” he told Now Habersham after the hearing.
“Well, we felt we proved our case. We won the election originally. There were less than 67 votes. We presented those numbers to the judge,” Erwin said.
Despite his disappointment, the former Banks County School Superintendent remained upbeat. “This whole process for me has been new. It has been fantastic. All the people I met. The constituents that have come out and have talked to me and told me their issues.”
Erwin said he looks forward to getting back to serving people and said he’ll run his next campaign just like the last. “Just be honest, get out, meet our people, talk to ’em, and tell ’em what we’re about.”
Meanwhile, Habersham County commissioners have asked Ellison to work with the State Legislative and Reapportionment Office to verify voter district assignments in the county. And officials are still waiting on the results of the State Board of Elections investigation. Secretary of State spokesperson Candice Broce says that investigation is independent of the litigation. She says the state’s investigation is still “ongoing.”
Last updated 9/19/18@6:20pm
