Friday, August 22, 2008


Given the political capital Secretary of State Karen Handel would expend in another appeal, the strange little case of Powell vs. Handel may soon fade into the political ether.

But still I have this irritation and it's an itch I'm just going to have to scratch one more time. Whether Judge Wendy Shoob followed the law or not is a question for the Court of Appeals. Whether Democrats, positively glowing in the wake of victory, continue to ignore the law is a question for political arena. So, here we go.

There are two relevant points of law.

First, the crux of the matter - residency requirement.

O.C.G.A. 21-2-27 section 14 states "The specific address in the county or municipality in which a person has declared a homestead exemption, if a homestead exemption has been claimed, shall be deemed the person's residence address".

That is crystal clear. If you claim homestead that is your residence. There's a reason it is called homestead. But it wouldn't be the law if there wasn't a twist.

O.C.G.A 21-2-27 section 15 states "For voter registration purposes, the board of registrars and, for candidacy residency purposes, the Secretary of State, election superintendent, or hearing officer may consider evidence of where the person receives significant mail such as personal bills and any other evidence that indicates where the person resides".

As is usual in the craft of law, the legislature provided a little wiggle room to allow for common sense to rule over absolutes. But the two little words Democrats continue to ignore are "may consider". May - not have to, not required to - may. It is absolutely within the Secretary's rights to ignore all other evidence no matter how compelling.

Certainly Handel's motivations for ignoring other evidence can be questioned. But what also has to be questioned is Powell's motivation for continuing homestead in Cobb County. The obvious answer is the tax savings. When confronted with this reasoning, most Democrats respond with some version of "So what? Wouldn't you?". Weak.

But back to the law. Those two little words are about to become very important.

Second, what powers does a judge have on appeal?

Very limited ones.

O.C.G.A 21-2-5 states "The court shall not substitute its judgment for that of the Secretary of State as to the weight of the evidence on questions of fact". In other words, the judge absolutely cannot factor whether the Secretary chose to exercise the option give in 21-2-7(15) of considering other evidence.

Given Judge Shoob's comments regarding the relevance of homestead to residency, it is difficult to believe she followed the letter of the law here.

So what can the judge do? Affirm, Remand or Overturn. And there are very specific requirements for all three.

21-2-5 goes on to state "The court may affirm the decision or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions of the Secretary of State are..."

It then goes on to list the conditions which must be met to show prejudice. Let's look at them one at a time:

1. In violation of the Constitution or laws of this state. (Nope)

2. In excess of the statutory authority of the Secretary of State. (Handel clearly followed statute)

3. Made upon unlawful procedures. (Handel clearly followed all procedure)

4. Affected by other error of law (Nope)

5. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record (Maybe)

6. Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record (The Dems would love to say this one but it does require actual evidence and not just speculation)

The Democrat's case and Judge Shoob's ruling appear to rely solely on test 5. In my mind "clearly erroneous" would be someone having homestead in one county but the Secretary ruling they must run in a different county, but others take a more expansive view of the clause.

One would think if the justification for a ruling relies on the vague terms of test 5, the error would be clearly delineated and explained in detail. Instead, we get a Judge questioning the relevance of a clearly stated statute and a hastily hand written ruling containing the briefest of explanations - not the brightest moment in the history of the judiciary.

But it is the Democrats. And they rarely win. So maybe they get a pass this time. But if the preening gloating continues - maybe not.


Bill said...

Basically the JACKASSES are attempting to talk away our freedom with a bunch of "Legalese". I hope you don't take the bait. It's a loosing proposition. Can you interpolate what's going on in a paragraph or less? Thanks.

griftdrift said...