Fitzgerald’s petition tossed
Sheriff candidate vows to appeal BER’s decision
By Brandon Park
The Morgan County Board of Elections rejected all 47 pages of sheriff candidate Keith Fitzgerald's petition to run as an Independent Tuesday. Fitzgerald needed the petition to be verified by the board in order to launch an independent candidacy for sheriff.
A motion was made byboard member Lauren DuPree to vote in favor for rejecting the entire petition. She also suggested the board consider a motion to vote against rejecting the petition and consider throwing out the one page in question. Board Chairman John Milliken directed the board to vote on rejecting the entire petition.
In a split vote, with DuPree and board member George Holt voting in favor of rejecting the entire petition, and board member Avery Jackson and board member Helen Butler voting against rejecting the petiton, Milliken was forced to break the tie.
Milliken voted to deny the entire 600 plus signatures on the petition. The motion passed 3 – 2 and, barring a successful appeal of the board's decision, ended Fitzgerald's bid to become sheriff.
Fitzgerald said he would appeal the decision made by the board as soon as possible.
The issue initially came to light at a special called meeting of the Board of Elections on July 7. At that meeting the board voted to table the decision until attorney Christian Henry could research past precedent in similar cases.
According to Henry, a 1994 Supreme Court case addressed this very issue. In that case, the notary public served as a circulator for one of the pages in the petition. Because the current language of Georgia Election Code 21-2-170 that states, "No notary public may sign the petition as an elector or serve as a circulator of any petition which he or she notarized. Any and all sheets of a petition that have the circulator's affidavit notarized by a notary public who also served as a circulator of one or more sheets of the petition or who signed one of the sheets of the petition as an elector shall be disqualified and rejected," was not included in the statute at that time, the Supreme Court only rejected that one particular page.
That language was added in 1999.
"In my opinion, it is very clear that, according to the code, all pages of the petition notarized by a notary who also signed as an elector ought to be disqualified and rejected," Henry said.
Terry Massey, Fitzgerald's attorney, said he thought Fitzgerald did the right thing. "He went to Mr. [Bobby] Howington and said, 'I think [the notary public] may be in there. I have looked but I can't find it and I would pull it out if I could. But Mr. Howington told him that it would be OK, saying, 'If we find it, we will just pull it out for you.' Following Mr. Howington's advice, he filed the petition. I would say fundamentally, it is unfair."
Massey also added that during an amendment to last meeting minutes the board stated, "We want to do what is fair and correct."
"I don't see how we can say accepting the petition to the government of over 600 electors is the wrong thing to do," Massey said. "I think the right thing to do is to honor the petition signed by more than 600 citizens in Morgan County."
In response to suggesting Howington misled Fitzgerald, Milliken said, "Mr. Fitzgerald acknowledged that he knew what the law said. The notary signed just below on the state form with the copy of the state law written just above it. So, the signing of the document did not take place with the advice of an employee of this office. That was an after-the-fact. I can not personally endorse the concept that this employee led or misled Mr. Fitzgerald into an unfortunate situation."
Board Member Jackson added his thoughts to the discussion before the final decision was made.
"I don't think this board is going to go against the legislature," he said. "As per the law, one sheet can be disqualified. If we disqualify that one sheet, we are not impeding Mr. Fitzgerald from going ahead with his candidacy. Six hundred people want to see him on the ballot. That has weight." he said.