In the November 7, 2006 general election for the District 1 seat on the McIntosh County Board of Commissioners, Nathaniel Grovner was declared the winner over George Deverger by a vote of 534 to 530. After a hearing on Deverger’s petition contesting the election results, the trial court found that in District 1 four votes had been wrongfully rejected and four additional votes had “irregularities” rendering them illegally cast. Given the slim margin of victory, it found these problems sufficient to invalidate the election and ordered that a new election be held on March 20, 2007. Grovner appeals in Case No. S07A0922; the McIntosh County Board of Elections and the McIntosh County Board of Registrars “McIntosh County” appeal in Case No. S07A0921. Motions for supersedeas filed by Grovner and McIntosh County were granted and the appeals consolidated. Although we find that the trial court’s ruling was error as to the illegally cast votes, it was correct as to the wrongfully rejected votes and thus, for the reasons that follow, we affirm. 1. An election may be contested “when illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result.” OCGA § 21-2-522 3. When illegal voting has been alleged, “it is only necessary to show 1 that electors voted in the particular contest being challenged and 2 a sufficient number of them were not qualified to vote . . . . Cit.” Emphasis in original. Taggart v. Phillips , 242 Ga. 454, 455 249 SE2d 245 1978 decided under prior version of OCGA § 21-2-522. See also Jones v. Jessup , 279 Ga. 531, 532 615 SE2d 529 2005; Mead v. Sheffield , 278 Ga. 268, 274-275 601 SE2d 99 2004 Hunstein, J., concurring specially recognizing distinction between illegal voter cases and irregular ballot cases; Bailey v. Colwell , 263 Ga. 111 428 SE2d 570 1993. The party contesting the election has the burden of making this showing, as election returns are presumed to be valid. Jones , supra at 531. Here, Deverger failed to show that the votes deemed illegally cast by the trial court, i.e., those of Nancy M. Shirah, Ernestine Moran, Dell Patrone and David E. Shepherd, were cast in the challenged race. Thus, they should not have been considered in assessing whether the results of the election have been placed in doubt.
2. As for the votes the trial court deemed wrongfully rejected, Deverger “need not establish how the rejected voters would have voted; he need only establish that sufficient legal votes were rejected to change or place in doubt the result. Cits.” Whittington v. Mathis , 253 Ga. 653, 655 2 324 SE2d 727 1985 decided under prior version of OCGA § 21-2-522. Thus, we must consider whether the four voters at issue were improperly disenfranchised.
