The facts in this case are undisputed. After a recount of the votes cast in the statewide election held on July 20, 2004 to select a successor to Judge Frank Eldridge on the Court of Appeals of Georgia, Mike Sheffield ran second with 207,473 votes and Howard Mead finished third with 207,091 votes. Thus, by a 382-vote margin, Sheffield won the right to participate in a run-off election with Debra Bernes, who was the top vote-getter by over 100,000 votes. However, Mead filed suit, alleging that the number of illegal absentee ballots cast in Laurens County was sufficient to render the outcome of the election in doubt. In that county, some 481 absentee ballots containing the incorrect name “Thomas Mead,” rather than the correct name “Howard Mead,” were returned and counted. Of that number, 314 contained votes in the Court of Appeals race, with 71 cast for “Thomas Mead,” 58 for Sheffield, and the remaining 243 split among the other candidates. The trial court found against Mead’s claim, focusing on the 314 ballots which contained votes for candidates in the contested Court of Appeals race. According to its analysis, if Mead is credited with 71 votes, then the remaining 243 votes would not be sufficient to meet the 382-vote threshold for questioning the outcome of the election. Mead filed a notice of appeal, and this Court issued a stay of the election pending resolution of the appeal. OCGA § 21-2-284 c provides, in relevant part, that “the names of all candidates who have qualified . . . shall be printed on the ballots . . . .” “Shall” is generally construed as a word of command. O’Donnell v. Durham , 275 Ga. 860, 861 3 573 SE2d 23 2002. Although he was a qualified candidate, the name of “Howard Mead” did not appear on the disputed Laurens County absentee ballots. Instead, the name of “Thomas Mead” appeared thereon. The word “name” ” ‘has been defined as the word or combination of words by which a person is distinguished from other individuals’ and ‘consists, in law, of a given . . . name, and a family surname . . . . The . . . given name . . . has been used from early times to distinguish a particular individual from his fellows . . . . Consequently, it has always been considered an essential part of a person’s name . . . .’ Cits.” Cit. Maye v. Pundt , 267 Ga. 243, 245 1 477 SE2d 119 1996. As a matter of law, therefore, the 481 Laurens County absentee ballots did not comply with the mandate of OCGA § 21-2-284 c. The names of all of the qualified candidates in the contested Court of Appeals race were not listed on those ballots, since the name of “ Howard Mead” did not appear. Nothing could possibly constitute a more vitally essential element in any election than the contents of the official ballot furnished to the voters. If a legal ballot was supplied by the duly constituted authority omitting the name of an individual, but thereafter by reason of the action on his part a ballot prohibited by law containing his name was substituted, his action in doing so was illegal; and this being true, . . . the ballot itself, insofar as this candidate was concerned, was inherently and essentially illegal. Alexander v. Ryan , 202 Ga. 578, 582 3 43 SE2d 654 1947. Thus, adding an unauthorized name to a ballot makes it illegal. Likewise, where, as here, the voters are supplied with a ballot which omits the name of a qualified candidate, then the ballot itself is illegal as to that race. See Howell v. Fears , 275 Ga. 627 571 SE2d 392 2002 primary results invalid where ballot in one precinct omitted names of both qualified candidates.
Notwithstanding the illegality of the Laurens County absentee ballots, the trial court relied upon the principle that the plaintiff in an election contest ” ‘must show that a sufficient number of electors voted illegally or were irregularly recorded in the contest being challenged to change or cast doubt on the election. . . .’ ” Emphasis in original. Taggart v. Phillips , 242 Ga. 484, 487 249 SE2d 268 1978. Because the number of absentee ballots containing actual votes in the contested Court of Appeals race was only 314, which is fewer than Sheffield’s statewide margin of victory, this election contest was found to be without merit.
