SCHMITZ v. BARRON, DIRECTOR

Warren Schmitz lost the November 2020 election for Georgia House District 52 to Shea Roberts by 377 votes. He filed a timely petition in Fulton County Superior Court challenging the results, naming county election officials as defendants but not naming Roberts herself, even though the law required her to be notified as a candidate in the race. Months passed without Roberts ever being formally served with the special legal notice the law requires. When Roberts intervened in the case and pointed out she had never been served, the trial judge gave Schmitz more time, but he still failed to show he had made real efforts to get her served. The superior court dismissed the whole case, and Schmitz appealed to the Supreme Court of Georgia, arguing the law didn't require serving Roberts and that dismissal was improper. The Supreme Court of Georgia disagreed and affirmed the dismissal, holding that candidates like Roberts must be served and that Schmitz did not show the diligence the law demands once he learned service was missing.

Under Georgia's election contest statute (OCGA § 21-2-524 (f)), a person contesting an election must ensure that any candidate named in the petition, not just official defendants, is served with special process, and once notified of a service problem must exercise the greatest possible diligence to fix it or risk dismissal.

The ruling confirms that anyone challenging a Georgia election must ensure every named candidate is properly served, not just election officials, and must act with urgency once problems with service come to light. This affects how future election contests are litigated statewide, especially in close races.

Affirmed

1. Georgia law treats election contests as expedited proceedings because of the strong public interest in quickly and finally resolving who won an election, so courts disfavor delay and place the burden on the challenger to move things along.
2. The statute governing election contests (OCGA § 21-2-524 (f)) requires the court clerk to issue a 'special process,' a formal notice that must be served by the sheriff not just on the named defendants but on any other candidate in the race, meaning Roberts had to be served even though she was not formally named as a defendant.
3. The court applied its earlier decision in Swain v. Thompson, which held that once a challenger becomes aware that someone has not been properly served, he must show 'the greatest possible diligence' to fix that problem, especially after receiving a motion to dismiss raising the issue.
4. Reviewing only the evidence that was before the trial court at the time it ruled, the court found that Schmitz gave no proof of actual efforts to get Roberts served, even though he had known since her intervention and motion to dismiss that service was missing.
5. Because the trial court's factual findings about lack of diligence were not clearly wrong, and because dismissing the case for failure to timely serve a candidate was within the trial court's discretionary authority, the Supreme Court of Georgia found no abuse of discretion.
6. The court rejected Schmitz's argument that Swain didn't apply because Roberts wasn't a named defendant, explaining that the statute's text applies the service requirement equally to defendants and to any other candidate named in the petition.

• election contest
• House District 52
• service of process
• Fulton County election
• legislative race dispute