Despite a decision by Statesboro City Council last week, the issue of whether to hold the special election for the vacant District 5 council seat on May 22 or Nov. 6 is back on the agenda for Tuesday’s 5:30 p.m. regular meeting.

Since the four remaining council members unanimously voted to call the election for May 22, they have received legal advice that two sections of the state laws governing elections contradict each other. According to this advice, holding a separate city special election on the same day as either regular statewide election and complying with all sections of the law is a “literal impossibility,” but the city attorney suggests in his memo that Nov. 6 would be a somewhat safer option for avoiding a lawsuit.

To Mayor Jonathan McCollar, who opposed the May 22 special election as a rushed job that would not allow all potential candidates sufficient time to prepare, the need for council to choose Nov. 6 now seems clear. But one council member remains adamant for the May 22 date, and whether the others will take up a proposed resolution changing the date remains to be seen.

“What happened was exactly what I was concerned about,” McCollar said Friday. “With it being such a fast turnaround, it just was not enough time for us to dot our i’s and cross our t’s.”

He noted that information from attorneys and the Georgia secretary of state’s office shows that one legal code section on holding a stand-alone election conflicts with another.

“And so doing a May election puts us in violation of two of the codes, whereas in November it puts us in violation of one code,” McCollar said.

The March 6 resignation of Travis Chance, District 5 council member for 10 years, created the vacancy. Chance, who plans to move to a house outside the city limits later this year, is now running for a county commission seat.

At the March 13 meeting that council members called to set the election for May 22, McCollar objected that this “cuts the democratic process so short.”

During that meeting, Eric Cumbee, representing the AllOnGeorgia website, noted that the secretary of state’s office recently advised the city of Reidsville that it was too late to hold a special election with the May 22 Tattnall County primary.

However, Bulloch County Election Supervisor Patricia Lanier Jones told the Statesboro council that this would be true for adding a city election to a county ballot, but not for Statesboro’s city elections because they are held on separate ballots.

Sought advice

After last Tuesday’s meeting, McCollar contacted the secretary of state’s office, as he confirmed Friday.

“Absolutely,” McCollar said. “It’s my responsibility to protect the city at all costs, and so I wanted to make sure, and thank God that I called and inquired about it, because if I had not, we would have been making a mistake.”

An exchange of legal opinions followed, with input from secretary of state’s General Counsel Kevin Rayburn and Bulloch County Attorney Jeff Akins, who advises the county Board of Elections, as well as from Statesboro City Attorney Cain Smith.

Smith detailed the discussion and laws in his memo to the mayor and council. One section of the state legal code, OCGA 21-2-540, requires calling a special election at least 29 days before the election date, but also states that if held in conjunction with a statewide general primary or general election, a special election “shall be called at least 90 days prior” to election day.

The next subsection states that 90-day requirement does not apply to special elections “conducted completely separate and apart” from the statewide elections by “using different ballots or voting equipment, facilities, poll workers, and paperwork.”

The same law then lists the statewide election days as the only allowed days for special elections.

But the next section, 21-2-541, requires that if a special election is held along with a regular election, the candidates or questions “shall be included on the ballot for such general primary or election.”

Different districts

However, in Bulloch County, when a special city election has been held on the same date as a regular county election in recent years, separate ballots have been used.

In his memo, Smith quoted Akins as stating, “In the case of the Statesboro special election, it is literally impossible to place the candidates for the vacant city council seat on the same ballot as the general primary or general election because of the difference in the city and county precinct lines. Therefore, it is literally impossible in this case to comply with 541(b) whether the special election is held in May or November.”

Smith told the mayor and council that he relies of Akins’ opinion.

“Even if the election was held in November there would be a violation of 541 due to the ‘literal impossibility’ of compliance that Mr. Akins references; my sole opinion is that there is significantly less chance of a legal challenge regarding a November election on those grounds as there is one less,” Smith wrote.

Boyum unconvinced

A resolution to reverse last week’s decision and call a Nov. 6 election is on the agenda for Tuesday. But District 1 Councilman Phil Boyum said Friday he won’t change his position.

“No, and I’ll tell you why,” Boyum said. “Everyone I have talked to has said it’s better to hold the election sooner than later, because District 5 residents deserve representation. The mayor was not elected to vote for residents of District 5 – he’s elected to be the mayor – and our council is designed to have five members. When we have a vacancy it is our obligation to fill it as quickly as possible as allowed by state law.”

Boyum also noted the “literal impossibility” advice.

“Given this literal impossibility, it is the consensus that we can hold it, and we’ve already contracted with the Board of Elections to do so,” he said.

District 3 Councilman Jeff Yawn said he finds himself in “one of those awkward places” for decision makers, trying to understand all of the facts.

Discussion Tuesday

“I just want to get together Tuesday and weigh it all out,” Yawn said. “Certainly we don’t want to put the city in a vulnerable position legally, but then again we have an obligation to the citizens of District 5 to represent them as well as possible and as quickly as possible.”

District 2 Councilman Sam Lee Jones said he made his decision last Tuesday based on the information that was available.

“With this new information I’m just going to look forward to doing my own research, gathering some more information before I make a final decision,” Jones said.

District 4 Councilman John Riggs was not reached for comment Friday.

Herald reporter Al Hackle may be reached at (912) 489-9458.