Jake Evans of Thompson Hine (left) and Bryan P. Tyson of Strickland Brockington Lewis

The order, issued from the bench by Superior Court Senior Judge David Sweat, gives state Rep. Dan Gasaway, R-Homer, a second shot at retaining the office he has held for three terms. At the end of a six-hour trial, a senior judge in Banks County on Tuesday declared the May 22 Republican primary for state House District 28 invalid and ordered a new primary election slated for December.

Republican opponent Chris Erwin narrowly beat Gasaway by 67 votes in the May primary, finishing with 3,111 votes to Gasaway's 3,044. The district includes parts of Habersham, Banks, and Stephens counties in northeast Georgia.

But following the election, Gasaway discovered his name had not appeared on the ballot for some voters who lived in his district, he contended in a lawsuit naming Erwin and the Habersham County elections supervisor as defendants. All of the affected voters lived in Habersham County, where Gasaway lives.

In ordering a new election, Sweat held that Gasaway presented “sufficient evidence to change or place in doubt” the May primary results, said Gasaway counsel Jake Evans of Atlanta's Thompson Hine.

Evans said evidence presented at trial showed that at least 402 registered Habersham County voters were erroneously assigned to the wrong district. At least 74 voters in Habersham and Stephens counties—parts of which are in District 28—who actually voted received the wrong ballots, he said. That was enough to convince Sweat that the close election required a do-over, he said.

The new District 28 primary is slated to be held in December, after the Nov. 6 midterm election. No Democratic candidate entered the District 28 race, so the primary winner is the presumptive winner of the election.

“I am very happy for Rep. Gasaway,” Evans said. “It has been a strenuous journey to get to this point, especially considering we did have a concession from Habersham County that a new election should take place. I wish him the best of luck in his new campaign, and I am confident he will do very well.”

Erwin's attorney, Bryan Tyson of Atlanta's Strickland Brockington Lewis, said Erwin is currently “considering his options” regarding a possible appeal. “Mr. Erwin will make his mind up in the next few days,” Tyson said. And, he added, Erwin “definitely will run for election in the Dec. 4 second primary.”

Gasaway began to suspect some voters in his home county were given the wrong ballots shortly after the primary, according to a petition he filed formally contesting the results and asking for a new election. Using voter registration data, Gasaway plotted voter addresses on a district map and realized that at least 350 voters with addresses in his district were erroneously included on a list of District 10 voters, according to the petition. A number of those voters said they would have voted for Gasaway had his name appeared on their ballots, according to the petition.

State law permits Georgia elections to be contested if the total number of illegal or inaccurate ballots cast is sufficient to change an election or place it in doubt.