This Lawyer Just Overturned an Election—Again

This Lawyer Just Overturned an Election—Again



"This is a big win for the candidates and the voters, both of whom deserve fair elections," said prevailing petitioner counsel Jake Evans of Greenberg Traurig in Atlanta.

September 04, 2024 at 04:29 PM

What You Need to Know

• Judge orders new election in race for Tift County Board of Education.
• Under consent order, candidate Ambrose B. King Jr. will have another opportunity to run for District 1 seat in new Nov. 5 election.
• Litigation pit Greenberg Traurig petitioner counsel against Tifton respondent counsel from Hall Booth Smith and Spurlin & Spurlin.

Atlanta attorney Jake Evans has done it again.

Philip George (left) of Greenberg Traurig and Ambrose B. King Jr., Tift County Board of Education candidate. (Courtesy photos)

For a third time, the Greenberg Traurig shareholder has helped overturn an election.

With the aid of firm of counsel Philip George, Evans has convinced a Tifton Judicial Circuit Superior Court judge to grant candidate Ambrose B. King Jr. another shot at winning a seat on the Tift County Board of Education, following a narrow and questionable defeat in the May 21 primary election.

With a new election now ordered for Nov. 5, Evans is hailing the outcome as “a big win for the candidates and the voters, both of whom deserve fair elections.”

‘Full of Irregularities’

It’s been more than three months since petitioner King refused to accept defeat.

 Marilyn R Burks, Tift County Board of Education District 1 Incumbent.

King had been running against incumbent Marilyn R. Burks as Democratic contenders vying for the District 1 seat on the county school board. Election results certified by Georgia Secretary of State Brad Raffensperger recorded Burks as obtaining 50.32% of the 310 votes cast in the primary race on May 21.

But according to a challenge filed by King on May 29, petitioner counsel noted the election results had been “highly unusual.”

“The Election was full of irregularities and errors that, in total, cast in doubt the Election’s results, which currently show Respondent Marilyn R. Burks leading by only two votes,” read King’s petition. “These irregularities and errors include, but are not limited to: (1) proper votes being wrongfully rejected; (2) an initial tally by the Georgia Secretary of State showing 313 votes being cast, but a final official tally by the county of 310 votes being cast; (3) irregularities regarding absentee ballots; (4) individuals voting that were not eligible to vote in the Election, including, but not limited to, by not residing in District 1, and thus illegally voting in the Election; and (5) other election discrepancies. Because the irregularities, wrongly rejected votes, an illegal votes in the Election exceed the margin of victory of two, the Election must be invalidated, and a new election held.”

Read: Petition

King’s petition named Burks and the Tift County Board of Elections and Registrations as respondents.

‘Fails to State a Claim’

John Crawford Spurlin of Spurlin & Spurlin in Tifton defended Burks’ interests in the challenge, while Tifton attorney Jennifer Dorminey Herzog of Hall Booth Smith defended the county election board.

In answers filed June 7 by respondent counsel, the respondents both challenged the validity of the petition.

Prepared by Spurlin, Burks’ answer launched six defenses, one of which ascertained King’s petition to be “vague and ambiguous.”

Respondent counsel argued that the petition failed to “set forth with particularity any specifies, any details, any names of qualified voters whose votes were not counted, any names of unqualified voters whose voles were illegally counted, any names of any voters who were not eligible to vote but did vote, any names of any voters who cast improper absentee ballots or early votes, or any other specific facts sufficient to cast doubt on the outcome of the election.”

“Accordingly, petitioners petition fails to state a claim or cause of action upon which relief can be granted,” Burks’ answer contended.

Read: Burks’ Answer | Tifton County BOE’s Answer

 Jennifer Dorminey Herzog of Hall Booth Smith in Tifton, Georgia. (Courtesy photo)

In the election board’s answer, respondent counsel Herzog countered that King’s petition “fails to state any claim or cause of action against respondent TCBOER and fails to assert any acts, omissions or improper conduct on the part of this Respondent.”

Respondent counsel also argued that King’s request for a new election as outlined in his petition “are barred due to insufficiency of process and service of process upon Respondent TCBOER as it was not properly served with notice of a proper summons as required by Georgia law and O.C.G.A. § 21-2-524.”

Herzog also homed in on a potential residency constraint on King’s eligibility to bring the election challenge.

“ In order to have standing to maintain and bring this election challenge with respect to the office at issue, Petitioner must be a legal resident of District 1 in Tift County. Upon information and belief, Petitioner resides and works in Dekalb County and has lived there for at least the duration of the past school term,” read the election board’s answer to King’s petition. “Respondent respectfully requests that prior to a substantive hearing on the election challenge, this Court inquires into Petitioner’s domicile and/or legal residence, his eligibility for this office, and his standing to bring this action.”

‘Could Have Changed the Outcome’

On July 19, Pataula Judicial Circuit Chief Judge T. Craig Earnest exercised his authority as the administrative judge of the Second Judicial Circuit to appoint Senior Superior Court Judge Howard E. McClain to preside over the election challenge.

 Senior Superior Court Judge Howard E McClain.

Following the announcement of a September hearing date in the matter on Aug. 19, McClain issued a consent order granting King’s request for a new election. In the Aug. 30 ruling, McClain noted irregularities supported the need for an election do-over.

“There were an irregular number of ballots sufficient to change or place in doubt the result of the Election as set forth in O.C.G.A. § 21-2-522(1). The margin of victory in the Election was only two votes, and at least six voters were in the affected area that did or could have received an irregular ballot,” McClain’s order read. “With the goal of upholding the integrity of elections and confidence of the public in that integrity, the parties therefore consent that a sufficient number of irregular ballots could have changed the outcome of the vote and further consent to a new election be held so as to allow all qualified District 1 citizens to exercise their right to vote.”

Read: Consent Order

As word of the overturned election spread, the Daily Report reached out to counsel for all parties. As of midday Wednesday, respondent counsel for Burk had not responded to the Daily Report’s request for comment. 

As respondent counsel for the county election board, Herzog provided the Daily Report with the following statement when reached for comment:

“Petitioner Ambrose King, Jr. filed a Petition to Contest Election Results & Request for New Election for the May 21, 2024, Tift County, Georgia Board of Education District 1 election. Petitioner King and Respondent Marilyn Burks were the only candidates in the election at issue, and the margin of victory was only two votes. With all parties having the goal of fair, safe, and accurate elections, the parties exchanged documents in preparation of the hearing. Through that exchange, TCBOER discovered that Casey’s Court Apartments was inadvertently and incorrectly designated in District 6, when it should have properly been designated in District 1. Because there were so few votes determining the election at issue, the irregular number of ballots resulting from the district-mapping error were sufficient to place in doubt the result of the election as set forth in O.C.G.A. § 21-2-522(1),” Herzog told the Daily Report Wednesday. With the goal of upholding the integrity of the election process and ensuring confidence of the public as to that integrity, the parties therefore consented that a sufficient number of irregular ballots could have changed the outcome of the election and further consented to a new election being held so as to allow all qualified District 1 citizens to lawfully exercise their right to vote.”

Meanwhile, prevailing petitioner counsel Evans applauded the ruling.

“I am happy for candidate Ambrose King Jr. as he looks forward to a new election,” Evans said.

Prior Election Victories

This isn’t the first time Evans has succeeded at overturning an election in Georgia.

Evans also overcame litigation hurdles ranging from procedural requirements to high proofs of burden to persuade another judge to overturn the same congressional race, twice.

 North Georgia Judge Throws Out State House Primary Results

 Senior Superior Court Judge David Sweat.

In September 2018, Evans persuaded a senior Superior Court Judge David Sweat to overturn the Republican primary election for House District 28, citing at least 74 voters who had been given the wrong ballots.

Evans represented Dan Gasaway, who’d battled for a fourth term as the district’s state representative against challenger Chris Erwin. Absent any Democratic or third-party candidates, Gasaway lost the race by 67 votes.

After subpoenaing at least seven voters to the witness stand, Evans succeeded at establishing the likelihood that district mismanagement impacted the integrity of the election results.

Petitioner counsel’s efforts convinced Sweat to void the results and call a new election for Dec. 4, 2018.

How to Overturn a State Election … Twice

But after Gasaway lost the do-over election in December, Evans again challenged the election results. This time, Evans contended ineligible voters, who’d relocated from the district, had continued to vote in the election. Having compared voter certificates to property deeds, Evans succeeded at leading Sweat to conclude that four illegal votes had been cast, opening the door for another new election.

“Getting a new election once is virtually unheard of,” Evans told the Daily Report at the time. “Getting a new election twice may never have been done. I am really proud of the result and excited that Mr. Gasaway is getting a fair shake.”

Following the consent order executed Friday by McClain, Evans’ now has a third tally mark in his column of successfully overturned elections.