Hugh Esco, et al	:
	:
Petitioners,	:	Fulton Sup Ct File No: E-53493
V.	:	S 97 A 1483
Secretary of State of Georgia, et al	:
	:
Defendants	:

This ____ day of January, 1998.
 
 

______________________________

Hugh Esco, pro-se, appellant
 
 

Hugh Esco, et. al.	:
	:
Petitioner	:	Fulton Sup Ct File No: E-53493
V.	:	S 97 A 1483
Secretary of State of Georgia, et al.	:
	:
Defendent	:

This matter came before the Supreme Court for oral arguments on September 9, 1997. This supplemental brief responds to several assertions not previously briefed which were raised by the appellee in oral arguments and in the Appellee's supplemental brief. Appellees have agreed with Appellant that: "In Thompson, the Court held that a candidate has a right to have his votes counted despite the disqualification of the candidate to hold office citing the Georgia and United States Constitution." (Supplemental Brief on Behalf of State Appellees, p. 2). Even so, Appellee alleges :

(1) that this Court is without jurisdiction to hear this appeal because Appellant pursued a direct rather than a discretionary process and that appealable issues were not raised in the original complaint; and

(2) that Thompson ought to be reconsidered in light of Burdick, specifically with respect to:

1. a) whether the Thompson rule requiring that write-in votes be counted regardless of candidate eligibility is dicta and non-binding,
2. b) whether a voter has an absolute right to vote for their candidate of choice,
3. c) whether Burdick requires a ban on write-in votes,
4. d) whether there is any state obligation to record "individual protest votes",
5. e) whether Thompson should be modified by City of Jesup v Bennett with respect to not requiring the performance of a nullity, and
6. f) whether the statutory prohibitions against counting certain write-in votes and the statutory rules of candidate eligibility for office should have standing superior to the state Constitutional rights of voters to have their votes counted.

I. This matter is properly before this Court as a direct appeal

and raises reviewable questions.

A. Statutory and Case Law Authority

"(Title 5, Chapter 6, Article 2. deaing with Appellate Practice) shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein . . . " O.C.G.A. 5-6-30.

The state statute on Appellate Practice also provides that: "(Direct) Appeals may be taken to the Supreme Court . . . from the following judgements and rulings of the superior courts . . . : (6) All judgements and orders granting or refusing to grant mandamus . . . " (O.C.G.A. 5-6-34(a). "Appeals in the following cases shall be taken as provided (by the discretionary appeals process) in this Code section: (1) Appeal from decisions of the superior courts reviewing decisions of . . . state and local administrative agencies . . . " (O.C.G.A. 5-6-35(a)).

The Georgia Civil Practice Act provides in Chapter 6 dealing with Extraordinary Writs, Article 2. Mandamus. "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance, if there is no other specific legal remedy for the legal rights." (O.C.G.A. 9-6-20). "Mandamus cases shall be heard in the Supreme Court under the same laws and rules as apply to injunction cases." (O.C.G.A. 9-6-28(b)).

Appellate review of injunction cases follows the direct appeals process (O.C.G.A. 5-6-34(a)(4).

Appellee cites Prison Health Services Inc. v Georgia Department of Administrative Services, et. al., 265 Ga. 810 (1995) which found that mandamus "is subject to the discretionary application procedure if the underlying subject matter of the appeal is one contained in O.C.G.A. § 5-6-35."
 
 

B. Appellant sufficiently raised in the original complaint the

Constitutional issues upon which this appeal relies.

While it is true that the petition failed to cite any authority for those claims until the amended complaint, it is also true that appellant began this process as a pro-se plaintiff without any training or experience in the law and without the assistance of counsel. It was the opinion of the amicus that the state Constitutional issues, "Though perhaps unartfully stated, (were) fairly raised in the plaintiff's pro se complaint . . . "
 
 

C. Pro-se complaints

Appellant is a pro-se plaintiff who began his education in the practice of the law by filing the mandamus which is the subject of this appeal. This Court has ruled in a unanimous opinion by Chief Justice Benham that "A Court examining a pro-se complaint should hold it to less stringent standards than those applied to pleadings drafted by attorneys." Graham v Alt, 266 Ga. 367 (1996). The Georgia Court of Appeals ruled: "A pro-se complaint . . . should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Johnson v Jones, 178 Ga. App. 346, 349 (1986).

Likewise, Appellant asserts that a pro-se complaint should not be dismissed for failure to follow every nuance of the state's intricate appellate process where due diligence has been exercised to present appealable questions impacting on significant rights in a manner which is not substantively more disruptive of functioning of the Court than any other action braught by an attorney.

Appellant spent nearly a week consulting with attorneys and judges to discern the distinction between a review of the decision of a state administrative agency (subject to the discretionary appeals process) and a mandamus (subject to direct review). In the end, when neither practicing attorneys nor judges were willing or able to advise him with any sense of their own certainty which appeals process was required, appellant reasoned that a mandamus was a mandamus and the law meant what Code Section 5-6-34 said.
 
 

D. The "underlying subject matter" &emdash; a decision" or an "official duty"

On reflection, further educated by the appellee's supplemental brief on this question, it is more apparent that the direct appeals process was the correct course of action. Appellee raises a question as to the "underlying subject matter." The question reduces to one of the distinction between a "decision" and an "official duty."

Appellant's original Brief addressed the "defect of legal justice" attributable to "a failure to perform." This case seeks redress from the abrogation of statutory and Constitutional rights of Georgia electors from the failure of a statewide elected official to perform an official duty which the people (see Amicus Brief for constitutional history) of Georgia said they "shall" perform. In this case, that duty is specifically to "certify . . . the names of all persons who have filed notices of intention to be write-in candidates with the Secretary of State." (O.C.G.A. 21-2-133(e)).

The word "decision" in O.C.G.A. 5-6-35(a) can be read in two ways. It can be viewed as a "decision" of the administrative appeals process. Or it can be seen as the routine "decisions" made by practically anyone employed by any agency of the administrative branch of state government. Practical wisdom suggests that the Supreme Court has more pressing business to attend to than reviewing routine administrative "decisions" made by state employees every day.

When the discretionary appeals process was enacted in 1979, Georgia Administrative Procedures Act was existing law. The Administrative Procedures Act makes clear that administraive law judges' "decisions" are subject to review by filing a Petition for Judicial Review (O.C.G.A. 50-13-19).

Code Section 5-13-20 provides that "An aggrieved party may obtain a review of any final judgement of the superior court under this chapter by the Court of Appeals or the Supreme Court, as provided by law." In the case of an appeal from an administrative law judge's decision, that law would be Code section 5-6-35(a)(1) and the discretionary appeals process.

The Georgia Administrative Procedures Act also provides that "This Code Section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law." (O.C.G.A. 50-13-19(a)).

Appellant chose to bring his complaint as a Writ of Mandamus and appeal it under Code Sections 9-6-28(b) and 5-6-34(a)(4), not as an Application for Judicial Review of an administrative "decision" to be appealed under Code Sections 50-13-19 and 5-6-35(a)(1).

Both cases cited as authority by Appellees &emdash;Rebich v Miles (264 Ga. 467) and Prison Health Services, Inc. v Georgia DOAS (265 Ga. 810) &emdash; deal with the review of quasi-judicial administative decisions.

The "underlying subject matter" of the case before this Court deals with a publicly elected servant's duty to "faithfully perform" their responsibilities and to not shift those responsibilities off onto subordinate Division Directors as a way of avoiding those duties. (O.C.G.A. 9-6-20).

Appellant asserts that the "underlying subject matter" involved here is an "official duty" &emdash; subjecting appeal to the direct process.
 
 

E. confusing voter's rights and candidate's eligibility

Apellee continues to confuse the candidate's eligibility rule with the rights of voters to have their votes counted under O.C.G.A. 21-1-133(e), 21-2-358, the 1983 Georgia Constitution Art. II, Sec. I, Par. II. and Georgia Supreme Court precedent. The appeal to the court to dismiss this claim as having failed to follow the discretonary appeals process is indicative. Appellees would assert that the underlying subject matter of this action is an administrative decision (R-35) of the Director of the Elections Division that because the newspaper published notice one day later than required, Appellant failed to publish notice in a timely manner as required by the candidate eligibility rule of O.C.G.A. 21-2-133(a).

In doing so, Appellee ignores the duty affirmed by the courts time and time again that Georgia electors have a state constitutional right to have their votes counted. This case affects not just the Appellant but seeks to vindicate the constitutional rights of all Georgia voters who may have cast a write-in ballot for the candidates named in the complaint. This appeal rests on appellant's rights as a voter, not on his ability or inability to effectively perform ministerial duties of a party election coordinator.

Even so, this does not prevent this Court, hearing a direct appeal on the voting rights claims (related to a failure to faithfully perform an official duty) from also allowing Appellant's prayer to invalidate the publication rule. As Justice Sears wrote (with the concurrence of the entire Court in 1994) " . . . decisions of this Court . . . have liberally applied 5-6-34(d) so as to permit an order that is not directly appealable by itself to be appealed along with a separate, directly appealable order. . . . we conclude that Yancey, 258 Ga., (which had found differently and created a conflict on this point) was erroneously decided." (Martin v Williams, 263 Ga. 707 at 709).
 
 

F. the mootness of the jurisdictional question

Even if this Court were to find (1) that "decision" within the meaning of the discretionary appeals process included the Secretary of State's decision to avoid his official duty to certify write-in candidates or in some other way fulfill the rights of Georgia electors and (2) that a pro-se party should be held responsible for understanding such subtleties of Georgia's Civil Practice rules, the question is now moot anyway.

The Supreme Court has already heard oral arguments on this matter. If the Court had not been interested in hearing this appeal it would never have granted the Appellant's Request for Orals. Given that Orals were granted it seems likely that the Court would have been disposed to grant an application for discretionary appeal, as well. At any rate, it has been nearly eight months since the initial Notice of Appeal was filed and four months since Appellee first raised a question as to this Court's jurisdiction in this matter. To date, this Court has not dismissed this matter as has been urged by the Appellees.

This Court has jurisdiction over this matter if this Court chooses to exercise it.
 
 

II. Burdick demands no reconsideration of Thompson

Appellee alleges thatThompson ought to be reconsidered in light of Burdick, specifically with respect to the issues briefed below.
 
 

A. Thompson's finding that "a refusal to count his vote completely

ignores it and is tantamount to a refusal to allow him to cast it" was

necessary to the ruling in that case and is binding as precedent on

this case.

The Georgia Supreme Court (in Dooly v Gates, 194 Ga. at 793) followed the U.S. Supreme Court on what is and is not dicta and quoted the federal findings in Union Pacific Co. v Mason City Co., 199 U.S. 160 which said: "Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can in no just sense be called mere dictum;" and "where there are two grounds, upon either of which the judgement of the trial court can be rested, and the appelate court sustains both, the ruling on neither is obiter, but each is the judgement of the court and of equal validity with the other."

The Thompson appeal was from a mandamus asking the Court among other things, to "declare certain portions of the city charter void as unconstitutional." Chief Justice Duckworth wrote for the Georgia Supreme Court, "We therefore hold that so much of (the Savannah municipal charter) as prevents voters from voting for persons whose names do not appear on the printed ballot is unconstitutional and void." Without a ruling on the right of voters to a complete count of their write-in votes, the Court would have lacked a basis for this declaration of the unconstitutionality of the disputed portions of the Savannah charter.

The right of electors to have their write-in votes counted "fairly arose" in the course of the trial in Thompson and was one of the "grounds" upon which the judgement rested, giving it "equal validity" with the finding of the Court that mandamus was the appropriate course of action.

But while Thompson may have made this point most eloquently, it was not the only time that this Court has spoken to this principle. In oral arguments, Appellant cited three other cases which came to similar conclusions. These and others are cited in the next section of this Brief.

The constitutional rule challenged by Appellee as dicta was necessary to the findings, was an alternative basis for the decision and is supported by similar rulings in other cases. For these reasons, it is binding as precedent in this case.
 
 

B. Georgia electors have an "unshackled right"

to cast their ballot for the candidate of their choice.

In 1923, the Georgia Supreme Court dealing with Savannah's earlier refusal to count write-in votes, wrote: "[the state constitutional provision] 'shall be an elector and entitled to register and vote at any election by the people' are unequivocal, and the entire provision amounts to a constitutional guaranty of the right of suffrage, which though subject to reasonable regulation, cannot be absolutely denied or taken away by legislative enactment." (Stewart v Cartwright, 118 SE at 861).

In a 1928 Cartersville case, this Court again ruled on a case involving a refusal to count write-in votes. They wrote: "Even if the respondents were ineligible to the offices to which they were elected by a majority of the votes cast in the election, the effect would not be to give the offices to the person having the next highest number of votes, but to invalidate the election; and in such case a new election should be ordered." (Adair v McElreath, 167 Ga. 294, 1928).

The Georgia Supreme Court heard a 1949 case involving Floyd County's refusal to count ballots which voted for only one of two open seats contested in the election. The Court ruled: "The right to vote against someone is held as sacred by some as the right to vote for another, and the fact that an elector exercises both rights at the same time, where the opportunity to do so is afforded, would not render his ballot illegal, and prevent it from being counted." (Griffin v Trapp, 205 Ga. 176).
 
 

C. Georgia electors' statutory right to cast a write-in vote is protected

by the Georgia Constitution which "may confer greater rights and

benefits" than the Federal Constitution.

In their Supplemental Brief, Appellees assert that "The appropriateness of (Thompson) is called into question upon review of Burdick v Takushi." But Burdick does not control here because, according to Justice Thompson, the " . . . Georgia Constitution (may) confer greater rights and benefits than the federal constitution. See Grissom v Gleason, 262 Ga. 374, 376, n. 1 (418 SE2d 27) (1992)." (Christensen v The State, 266 Ga. 474 at 475, 1996). Justice Sears dissented from the position of the majority in this case. But still she found that, "Because it is firmly established that the Georgia Constitution . . . accords Georgia citizens greater protections than does its federal counterpart, this Court is in no way bound by federal case law on the constitutional issues involved in this appeal." (Id. at 480-81).

In fact the procedural history of Burdick shows that the the federal district court certified three questions to the Supreme Court of Hawaii to determine whether the plea for a count of banned write-in votes might be granted under state Constitutional grounds. The Federal questions were reached only when the Hawaii Courts held the "write-in" ban Constitutional under state law.

This Court has said that the state constitution may extend to Georgians rights which are not provided under federal constitutional law. Georgia's constitutional framers and voters have decided that write-in votes must be counted for reasons given in the Amicus Brief. A failure to count them is unconstitutional. For these reasons, the Appellee's arguments which rely on Burdick are irrelevant.
 
 
 
 

D. The facts of this case do not offer an opportunity to rule on the

state's obligation to "register individual protest votes."

Ralph Nader was on the ballot in twenty-two states and was a write-in candidate in several others. Mr. Nader placed fourth in the count of the popular vote, ahead of the Libertarian Party which is on the ballot in Georgia and all fifty states. Winona LaDuke as Nader's running mate was on most of those same ballots. (R-11).

The Natural Law Party submitted a nominating petition requesting ballot access for their candidates. Their petition was signed by over 45,000 people. None of these electors' signatures were certified due to a technical problem arising from the use of a notary public who also circulated their petition (R-45).

Both Appellant Hugh Esco and Ralph Harris submitted nominating petitions requesting ballot access for their candadicies. Esco's petition was signed by 1354 people, 746 of whom were certified as eligible electors by the Secretary of State (R-9). Harris' petition was signed by 600 people, 348 of whom were certified as eligible electors by the Secretary of State (R-9).

For these reasons, the facts of this case do not support a determination on whether the Georgia Constitution requires the state to count "individual protest votes."
 
 

E. Counting the votes cast for the candidates named in this action,

including the Presidential ticket which placed fourth in the national

popular vote, does not constitute a nullity and the state is not

relieved under the Constitution from its obligations to count and

report fully the votes of Georgia electors by its assertion that to do

so would be a nullity.

The Jesup case settled a dispute about the validity of a legislative act to annex new land into the City of Jesup. The Act said turn "east". The Court ruled that the word could be read as "west" since that would obviously honor the intent of the legislature to annex the new land into the City.

Citing Burdick, Appellees state that "The function of the election process is to separate out all but the 'chosen candidates' not to 'provide a means of giving short-range political goals, pique, or personal quarrels.'" This is not inconsistent with the prayer of the appellant that all the votes cast be counted.

Appellees offer no evidence to suggest that the candidates named in this case were motivated by "short-range political goals, pique, or personal quarrels." In fact its hard to imagine the required petition drives organized on such a petty foundation. The Green Party has organized in the United States since 1984, years longer than the Reform Party which does have ballot access and whose votes were counted.

On the other hand, the very legitimacy of the election process in the eyes of the public depends on a complete accounting of the ballots cast. Appellant asserts that among the reasons why the United States has one of the lowest voter turn-outs in the democratic world is the laws and practices which tend to discount the political views of those outside the Democratic and Republican Parties. The Constitution conveys no superior right to a complete count of the vote of the political organizations recognized as "political parties" under O.C.G.A. 21-2-2(21) vis-a-vis those seen as "political bodies" under O.C.G.A. 21-2-2(19) vis-a-vis voluntary associations which might conduct a write-in campaign, either on their own or in cooperation with other political parties and organizations in other states.

If the argument of the Appellee were to be extended to its logical conclusion, where would the line be drawn between counting the votes to name the "chosen candidate" and counting the votes as a nullity?

The votes for President of the United States cast by Georgia electors gave a plurality of the votes and all thirteen presidential electors from Georgia to Republican Senator Bob Dole. Dole received 1,080,843 votes or 47% of the votes cast in Georgia. He was followed by Democratic President Bill Clinton (second place with 1,053,849 votes), the Reform Party candidate Ross Perot (third place with 146,337 votes), the Libertarian candidate Harry Browne (fourth place with 17,870 votes) and finally to the three write-in candidates who were certified: Howard Phillips (fifth with 145 votes), Charles Collins (sixth with 15 votes) and James Harris seventh with 12 votes).

In the nationwide popular vote, the results (including place, number of states with ballot access, candidate (where known), party and vote tally) were:
 
 

 

1	50 states	Bill Clinton	(Democratic Party)	45,628,667 votes
2	50 states	Bob Dole	(Republican Party)	37,869,435 votes
3	50 states	Ross Perot	(Reform Party)	7,874,283 votes
4	22 states	Ralph Nader	(Green Party)	580,627 votes
5	50 states	Harry Browne	(Libertarian Party)	470,818 votes
6	40 states	Howard Phillips	(U.S. Taxpayers Party)	178,779 votes
7	45 states	John Hagelin	(Natural Law Party)	110,194 votes
8	12 states		(Workers World Party)	29,118 votes
9	12 states	James Harris	(Socialist Workers Party)	11,513 votes
10	5 states	Charles Collins	(write-in candidate)	7,234 votes
11	5 states		(Socialist Party)	3,376 votes

(followed by ten other candidates and parties on the ballot in fewer than five states)

SOURCE: Ballot Access News November 12, 1996 page 3.

(ALL FIGURES ABOVE ARE UNOFFICIAL AND INCOMPLETE)

While it is important to examine the intent of the legislature in interpretation of statutory meaning, it is more important still to examine the intent of the legislature and the people in understanding the meaning of the Constitutional authority under which those statutes operate. The Amicus Brief (at page 10) describes the Constitutional standing of the reincorporated constitutional provisions which were the subject of settled case law as to their meaning. It is not a "futile and useless thing," in fact it is a compelling governmental interest, to protect the "legitimacy" of the election process. By their act of reincorporating the existing language on elections and the rights of voters into the 1983 Georgia Constitution, the legislature has shown their intent on this question.

Neither is it a "futile and useless thing" to comply with International agreements to which the United States is a signatory. The United States is a Participating State in the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE which was formulated and adopted by the Commission on Security and Cooperation in Europe. Known as the Copenhagen Agreement, it provides that:

To ensure that the will of the people serves as the basis of the authority of government, the participating States will . . . ensure that votes are cast by secret ballot . . . and that they are counted and reported honestly with the official results made public . . . " (Copenhagen Agreement, I.(7) and (7.4))

F. Constitutional rights have standing before this Court

superior to legislative enactments.

 

1. This action does not question the power of the legislature to

establish qualifications for candidates for public office.

Whether the right of a Georgia citizen to have his or her write-in vote counted under the state and federal Constitution is lost because of the write-in candidate's failure to comply with O.C.G.A. 21-2-133?

2. The legislature lacks the power to prohibit the performance

of a duty required by the Constitutional rights of voters.

Although they would have the Court dismiss this action for other reasons, the Appellee agrees with the contention of this appeal that Thompson requires that write-in votes be counted "despite the qualification of the candidate to hold office." For the reasons stated above, Appellant prays that this Court find that this appeal has sufficiently raised reviewable constitutional issues, that this Court has jurisdiction to hear a direct appeal in this matter and that the position of this Court in Thompson is binding and has not been modified by the U.S. Supreme Court's ruling in Burdick nor the Georgia Supreme Court ruling in City of Jesup v Bennett. Finding in this way, Appellant prays the Court will remand this matter with the instructions outlined in his original Brief.

Respectfully submitted, this ___ day of ____________, 1998.
 
 
 
 
 
 

__________________________

Hugh Esco, pro-se

P.O. Box 5332

Atlanta GA 30307

770/ 368-2805