2012 Elections Keeping Georgia Legal Team Busy

Kathleen Baydala Joyner

Daily Report

10-11-2012

With Election Day still a month off, Georgia Secretary of State Brian Kemp already has had to deal with an unusually high volume of election law challenges this year. The flurry of activity has kept his top two in-house lawyers, General Counsel Vincent Russo and Deputy General Counsel Cam-Anh Le, particularly busy.

Since the beginning of the year, they have fielded 16 challenges to state legislative and judicial candidates' eligibility, with claims focusing on allegedly unpaid taxes or residency disputes.

They also had to deal with a challenge to President Barack Obama's placement on the Democratic primary ballot based on allegations that he faked his birth certificate.

A dispute also arose with the U.S. Department of Justice this summer over whether Georgia complied with absentee voting requirements pertaining to overseas troops, which resulted in a lawsuit now pending before a federal judge.

With each of those cases, Secretary of State Brian Kemp turned to Russo and Le, two of the agency's 10 in-house lawyers.

Russo, who earned his law degree in 2006 from Emory University, joined the office in December 2008 during Karen Handel's administration. Prior to that he worked as an associate at Weinstock & Scavo handling commercial litigation.

Le practiced real estate law with Zion, Tartleton & Siskin before joining the Secretary of State's office in 2011.

Kemp has eight other attorneys embedded with other divisions including securities, professional licensing and corporations. They handle a variety of legal work including contracts and securities fraud investigations, often in tandem with the state Attorney General's office when a case involving the Secretary of State goes to court.

This year, Russo and Le were tasked with reviewing all of the challenges to determine whether the people who made them were qualified to do so and that they included adequate supporting evidence before submitting them to an administrative law judge (ALJ).

"To make a challenge, one has to be a registered voter. So, we check the records for that," Le said. "We do do a rudimentary check [of the facts], but we don't do the whole analysis, because that's really left up to the administrative law judge."

Challengers must "present their evidence. We don't collect evidence for them to help bolster their case or destroy their case," Russo added.

Russo said the Elections Division avoids sending clearly frivolous cases to an administrative law judge, because each case that is transmitted costs an average of $1,200 to $1,500.

"That's taxpayer dollars," he said. Given the estimated average, the office of Secretary of State spent between $13,000 and $17,000 to adjudicate challenges this year, not including the challenge to Obama's candidacy.

"That one was a little more expensive," Russo said.

Once an ALJ makes a decision, Russo and Le analyze it and draft a final determination for Kemp to approve or reject.

"We advise Secretary Kemp on whether we think it's a good decision or a bad decision and the implications of that decision and how it would play out if we accepted the ALJ's decision or not," Russo said.

Any registered voter can file a challenge, but most were brought by opponents of the targeted candidates. They tended to claim candidates were ineligible because they owed back taxes or did not live within the contested districts. (Kemp also may file his own challenges if an issue arises more than two weeks after candidate qualifying, when the window for voters to file challenges closes.)

Of the 16 challenges this election cycle, Kemp adopted the ALJ's decision in nine and rejected two. The remaining five were either voluntarily withdrawn by the challenger or dismissed immediately and not sent to an ALJ for review.

Only one of the challenges actually went to court—the next step if a party objects to Kemp's ruling. Last week, Fulton County Superior Court Judge Kimberly Esmond Adams denied an appeal challenging the residency of Atlanta lawyer Ronald Mabra Jr., who is representative-elect for Georgia House District 63.

In July, an ALJ found Mabra was not qualified to be on the ballot because he wasn't a resident within the district, which includes portions of Fayette, Clayton and south Fulton counties. Kemp laterfound that Mabra was eligible because he met the technical requirements of state statute. Last week, Adams essentially affirmed Kemp's findings. However, Linda Pritchett, who lost to Mabra in the runoff and filed the unsuccessful residency challenge, said she will petition the state Supreme Court to hear the case.

Kemp also rejected the ALJ's decision in the challenge to Fulton County Superior Court hopeful Clarence Johnson Jr.'s candidacy based on nonpayment of taxes. Kemp allowed Johnson, a solo practitioner who ultimately was unsuccessful in his bid to unseat incumbent Judge Todd Markle, to stay on the ballot after Johnson agreed to set up a payment plan with the state.

Kemp's spokesman Jared Thomas chalked up the increase in challenges since 2010 to the economy—"Because it's a tough economy, people have fallen behind" on taxes, he said—and the recent legislative redistricting.

"They are running in new districts in which they haven't before," Thomas said. District lines are redrawn once every 10 years, "so you have issues that arise from it."

A few of the challenges involved candidates who made "an honest mistake" about whether they live in the boundaries, he said.

Russo added that access to public records, such as tax liens, allows more people to find fodder for challenges.

"That's where people begin to search to see if their opponent or a candidate has tax issues," he said.

The challenge to Obama's candidacy, while unusual, arose like any other challenge filed by a voter, Russo said.

"So, we went through the process like we always do," he said, despite the failure around the country of challenges to Obama's qualifications.

Russo added that the legal staff in Kemp's office often is insulated from politics, Russo said.

"We don't necessarily want to be picking and choosing which challenges that are filed by an electorate are the ones we're not going to move forward on," Russo said. "I think that's part of our role as an agency that makes decisions as to whether someone is eligible or qualified to be on the ballot—to try to remain neutral and to treat all cases the same."

"I just look at the issue, focus on that, research it and come up with an answer based on the law or the supporting text or whatnot," Le added. "I don't really know what party they belong to. It really doesn't come into play."

In February, Kemp adopted Office of State Administrative Hearings Deputy Chief Judge Michael Malihi's initial decision that Obama met the state's eligibility requirements and could remain on the March 6 primary ballot.

Four months later, Kemp's lawyers again found themselves in the midst of the political arena when the U.S. Department of Justice threatened to sue the Georgia Secretary of State for failing to give deployed military troops enough time to receive and return absentee ballots in compliance with the Uniformed and Overseas Citizens Absentee Voting Act unless the state delayed declaring winners of the Aug. 21 primary runoff by a week. Kemp refused, and the DOJ filed suit on June 27.

"UOCAVA requires states to have a plan if they have runoff elections. We had a plan based on how the law is structured. We provided that to the DOJ, and they a couple of months later sent us a notice that they were going to file suit," Russo said. "Once they file a suit, the Attorney General's Office represents us—we talked to the AG's office," he added.

In July, a federal judge ordered Kemp to extend the absentee ballot deadline for the August primary runoff. In August, State Attorney General Sam Olens, who represents Kemp when cases go to court, filed to have the DOJ's suit dismissed because Kemp complied with the July order regarding the primary runoff and does not anticipate the need for a general runoff election in December.

The case, United States v. Georgia, No. 1:12-CV-02230, is still pending.

This article originally appeared in the Daily Report.