CourtListener 10680536

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320 Ga. 733
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S24A1386. NELSON v. STRICKLAND et al.

PINSON, Justice.

Henry Strickland lost a close election for city commissioner in

Waycross, Georgia, and he filed a petition to contest the election.

The trial court granted the petition, concluding that the election had

used an outdated map of voting districts from 2005 and that, based

on the districts as set by the “right” map, 32 voters voted in the

wrong districts, which was enough to have potentially affected the

outcome of Strickland’s election. On that basis, the court vacated the

election and ordered that a new election take place in November

2024 using the most recent election map, which was adopted in

2011. Alvin Nelson, Strickland’s opponent and winner of the elec-

tion, appealed, and we granted his motion to stay pending the appeal

of the trial court’s order vacating the election and ordering a new

one.
We now reverse the trial court’s judgment. Strickland’s chal-

lenge is based on the assumption that the 2011 map was in effect for

the 2023 election, and that because the 2005 map was used instead,

enough votes were cast in the wrong districts to call the election re-

sults into doubt. But as Nelson contends, the 2011 map never be-

came effective, because none of the filings with the Secretary of

State and clerk of the superior court required by OCGA § 36-35-5 to

make the charter amendment effective have been made. Because the

2011 map was not effective at the time of the election, there is now

no basis in the record for the trial court’s conclusion that enough

illegal or irregular votes were counted to change or cast doubt on the

outcome of the election, which leaves no ground for vacating the elec-

tion. Strickland’s petition must therefore be rejected.

1. In 2011, the City of Waycross amended its charter to bring

its voting districts up to date after the 2010 national census. As ex-

plained further below, the City’s power to do that came from the

Home Rule Act of 1965, which imposes conditions and prescribes

procedures for home-rule charter amendments. Among other things,

2
amendments to a city charter made pursuant to a city’s home rule

powers do not become effective “until a copy of the amendment or

revision . . . has been filed with the Secretary of State and in the

office of the clerk of the superior court of the county of the legal situs

of the municipal corporation.” OCGA § 36-35-5. The City did not file

its 2011 charter amendment with either the Secretary of State or

the clerk of superior court. But the City used the 2011 voting dis-

tricts and the associated maps in city elections from 2011 until

2022.1

In 2022, the City transitioned from paper maps to digital maps.

At some point, the county election supervisor asked that the most

updated version of the digital map be sent to him by e-mail. Some-

how, the map that was sent to the election supervisor was not the

updated 2011 map, but a map from 2005 that had been prepared in

response to the 2000 census. As a result, the 2005 map was used in

city elections from 2022 forward.

1 The City did not update its districts or maps after the 2020 census be-

cause it determined that the population had not changed enough to justify an
update.
3
In November 2023, Nelson, the appellant here, was elected as

Waycross City Commissioner for District 5, in an election that used

the 2005 map. Nelson’s opponent in that election was Strickland,

one of the appellees here.

After the election was certified, Strickland filed a pro se elec-

tion contest under OCGA § 21-2-521. In his filings, Strickland al-

leged that the Board of Elections incorrectly used the 2005 map for

the election, and that using that map instead of the 2011 map had

resulted in 32 voters casting ballots in the “wrong” districts. Twenty-

three voters who lived in District 1 according to the 2011 map had

instead voted in District 5, and nine voters who resided in District 5

according to the 2011 map had instead voted in District 4 (and thus

did not vote in the election for District 5’s commissioner). The Ware

County Board of Elections — the other appellee here — stated in its

verified answer that 32 voters had voted “in an incorrect district.”

Strickland pointed out that Nelson won the District 5 election by

only 18 votes, and the Board expressed its belief that the discrep-

ancy “would warrant a re-vote.”

4
After a hearing, the court granted relief to Strickland. The

court denied Nelson’s motion to dismiss Strickland’s petition for in-

sufficient process and insufficient service of process, and it rejected

Nelson’s argument that the petition should have been dismissed be-

cause Strickland did not pursue it expeditiously. On the merits, the

court found that there were irregularities in the 2023 election based

on the use of the 2005 map rather than the 2011 map. The court

reasoned that the use of the older map had resulted in some voters

voting in the “wrong” district, by which it meant a district other than

the one established by the “right” 2011 map. The court therefore va-

cated that election and ordered a new election to take place “as soon

as practicable and in accordance with Georgia law.” The new elec-

tion was later set for November 5, 2024.

Nelson appealed both orders, and we granted his request for a

stay of the trial court’s orders pending appeal.

2. Under our Election Code, a candidate for office may contest

an election on the ground that “illegal votes have been received or

legal votes rejected at the polls sufficient to change or place in doubt

5
the result.” OCGA §§ 21-2-521; 21-2-522 (3). If a petitioner is able to

prove that enough illegal or irregular votes were counted to change

or place in doubt the result of the contested election, a court has the

power to vacate that election. See Martin v. Fulton County Bd. of

Registration and Elections, 307 Ga. 193, 222 (3) (a) (835 SE2d 245)

(2019). In making that showing, the petitioner “need not establish

for whom the disputed electors cast their ballots,” only that enough

disputed ballots were counted that the result of the election could

have been affected. See Smith v. Long County Bd. of Elections and

Registration, 312 Ga. 306, 311-312 (1) (862 SE2d 517) (2021). That

was the nature of Strickland’s election contest here. He alleged that

the 2011 map reflected the election districts in effect at the time and

should have been used for this election, and that because the 2005

map was used instead, 32 voters voted in the “wrong” districts, in an

election decided by only 18 votes. The trial court agreed and vacated

the election on that basis.

On appeal, Nelson disputes the premise that the 2011 map was

the map in effect at the time of the election here. He contends that

6
a step required by statute to make the 2011 map effective — making

certain filings with the Secretary of State and the superior court

clerk — has not happened. If Nelson is right, then Strickland’s claim

that 32 voters voted in the “wrong” districts — which is based en-

tirely on the assumption that those voters were supposed to vote in

the districts set by the 2011 map — would lack any basis in the rec-

ord. All of which is to say that the merits of this election contest turn

on whether the 2011 map was effective at the time of the election.

So that question is our focus here, and we review de novo the trial

court’s legal conclusion that the 2011 map was the effective map at

the time of the election. See Parham v. Stewart, 308 Ga. 170, 176 (4)

(839 SE2d 605) (2020) (applying de novo review to legal question of

whether summary judgment was proper in a post-election contest).

The City’s authority to enact new election district maps comes

from the Municipal Home Rule Act of 1965. See OCGA § 36-35-1 et

seq. The Home Rule Act generally gives municipalities the legisla-

tive power to adopt “clearly reasonable ordinances, resolutions, or

regulations relating to its property, affairs, and local government”

7
that are not inconsistent with the Constitution or preempted by

state law. OCGA § 36-35-3 (a). The Act also authorizes certain spe-

cific local laws. Relevant here, the Act allows a municipality, after a

national census, to “reapportion the election districts from which

members of the municipal governing authority are elected.” OCGA

§ 36-35-4.1 (a). And the Act lays out the procedural steps through

which a municipality can exercise that power: A city that wants to

reapportion its electoral districts “shall by ordinance amend its char-

ter.” OCGA § 36-35-4.1 (b). That ordinance must be “duly adopted at

two regular consecutive meetings of the municipal governing au-

thority,” OCGA § 36-35-3 (b) (1), and the city must publish notice of

the proposed amendment beforehand, see id. And finally, at issue

here, OCGA § 36-35-5 requires certain filings to be made to make

the amendment effective. That provision says that

[n]o amendment or revision of any charter made pursuant
to this chapter shall become effective until a copy of the
amendment or revision, a copy of the required notice of
publication, and an affidavit of a duly authorized repre-
sentative of the newspaper in which the notice was pub-
lished, to the effect that the notice has been published as
provided in this chapter, has been filed with the Secretary

8
of State and in the office of the clerk of the superior court
of the county of the legal situs of the municipal corpora-
tion.

OCGA § 36-35-5.

Under the plain language of OCGA § 36-35-5, an amendment

or revision of a charter made pursuant to a city’s home rule powers

is not effective until a copy of the charter amendment or revision

(among other things) has been filed with the Secretary of State and

the superior court clerk. That language provides that “[n]o” such

amendment or revision “shall become effective” until those steps are

taken. When the word “shall” is accompanied by a negative word

(like “not” or “no”) in this way, the phrase including the “shall” is

ordinarily read as denying permission to do a thing or, as here, not

permitting a thing to happen. Put another way, the use of “shall” in

that kind of phrase is generally mandatory — “shall not” means

“may not” rather than “should not.” See, e.g., Premier Pediatric Pro-

viders, LLC v. Kennesaw Pediatrics, P.C., 318 Ga. 350, 360 (4) (898

SE2d 481) (2024) (explaining that the statutory language “[n]o ap-

peal shall be dismissed by the appellate court” in OCGA § 5-6-48 (c)

9
means that “an appellate court may not dismiss an appeal” under

that statute); Collington v. Clayton County, 318 Ga. 29, 31 (1) & n.4

(897 SE2d 361) (2024) (statutory language in OCGA § 36-92-3,

providing that a person suing a local government entity under the

statutory waiver of sovereign immunity for motor vehicle claims

“shall not name the local government officer or employee individu-

ally,” means that claims against a government employee in his indi-

vidual capacity were improper and foreclosed); Ford Motor Co. v. Co-

sper, 317 Ga. 356, 358 (2) (893 SE2d 106) (2023) (statutory language

in OCGA § 51-1-11 (b) (2), which provides that “[n]o action shall be

commenced pursuant to this subsection with respect to an injury af-

ter ten years from the date of the first sale for use or consumption of

the personal property causing or otherwise bringing about the in-

jury,” means that claims filed under that subsection more than ten

years after the first sale for use or consumption of the product are

“completely barred”). Accord Dep’t of Homeland Security v. Thurais-

sigiam, 591 U.S. 103, 112 (I) (B) (140 SCt 1959, 207 LE2d 427) (2020)

(statutory language of 8 USC § 1252 (a) (2) (A) (i) providing that “no

10
court shall have jurisdiction to review” executive determinations

about expedited removal means that courts “may not” review those

determinations); Ross v. Blake, 578 U.S. 632, 638-639 (II) (A) (136

SCt 1850, 195 LE2d 117) (2016) (statutory language of 42 USC

§ 1997e (a) providing that “[n]o action shall be brought” until admin-

istrative remedies are exhausted is “mandatory” and means, when

“said more conversationally,” that prisoners “may not bring any ac-

tion” until they have exhausted administrative remedies). And that

is the best reading of the language here, too. We see no “contextual

basis” for a different reading, Bell v. Hargrove, 313 Ga. 30, 34 (2) n.5

(867 SE2d 101) (2021), like a qualification of or exception to the stat-

ute’s clear declaration that “[n]o amendment or revision . . . shall

become effective until” the required filings happen. So we conclude

that an amendment or revision of a charter made pursuant to a city’s

home rule powers is not effective until a copy of the amendment or

revision has been filed with the Secretary of State and the superior

court clerk.

The trial court erred by treating OCGA § 36-35-5 as “directory”

11
rather than mandatory because failing to file a copy of the amend-

ment did not “prejudice . . . the substantial rights of interested per-

sons,” citing Barton v. Atkinson, 228 Ga. 733 (187 SE2d 835) (1972).

In that case, we said that

this court has held that language contained in a statute
which, given its ordinary meaning, commands the doing
of a thing within a certain time, when not accompanied
by any negative words restraining the doing of the thing
afterward, will generally be construed as merely directory
and not as a limitation of authority, and this is especially
so where no injury appeared to have resulted from the fact
that the thing was done after the time limited by the plain
wording of the Act.

Barton, 228 Ga. at 739 (1). Putting aside whether that statement

from Barton remains an accurate statement of law,2 it does not apply

here, where the language at issue does not “command[ ] the doing of

a thing within a certain time” but instead sets conditions that must

2 This statement from Barton is out of step with how we have assessed

the “mandatory or directory” question in our more recent decisions, which focus
on context to determine the meaning of the word “shall” rather than assessing
prejudice. Compare, e.g., Bell, 313 Ga. at 34 (2) n.5 (explaining that “‘shall’ is
‘generally construed as a mandatory directive’” unless “the context in which it
is used indicates a permissive instruction” (quoting Carr v. State, 303 Ga. 853,
865 (5) (a) n.15 (815 SE2d 903) (2018))).
12
be satisfied before a particular kind of legal act becomes effective.3

For its part, the Board contends that the 2011 map should still

be considered effective because the City “substantially complied”

with the requirements for amending its charter. The Board points

out that the City complied with most of the statutory requirements

for amending its charter and it has been using the 2011 map for

more than a decade. This is good enough, the Board says, and in

support, it relies on Jackson v. Fraternal Order of Police Atlanta

Lodge No. 8, 234 Ga. 906 (218 SE2d 633) (1975). In Jackson, we up-

held a city’s charter amendment where the city had already operated

3 The trial court also concluded that applying OCGA § 36-35-5 to “inval-

idate” the 2011 map would “violat[e]” the constitutional mandate of “one per-
son, one vote.” The trial court’s order offers no basis for that statement in the
law or the record of this case, and it is not clear what role, if any, it played in
the trial court’s analysis. To the extent the trial court was suggesting that the
statute should be interpreted differently under the doctrine of constitutional
avoidance, that doctrine applies only when the statute in question is ambigu-
ous, see Nordahl v. State, 306 Ga. 15, 20 (1) (829 SE2d 99) (2019) (“[T]he canon
of constitutional avoidance is a tool for choosing between competing plausible
interpretations of a statutory text, resting on the reasonable presumption that
[the legislature] did not intend the alternative which raises serious constitu-
tional doubts.”) (citation and punctuation omitted), which OCGA § 36-35-5 is
not, so any such argument would fail. As for any underlying question under
the United States Constitution, Strickland did not challenge the constitution-
ality of the 2005 map that was used in the 2023 election, under a “one person,
one vote” theory or otherwise, so no freestanding constitutional claim was
properly before the trial court in this case.
13
under the amendment for months and had shown “substantial com-

pliance” with the Home Rule Act by following all the statutory re-

quirements — including filing the amendment with the Secretary of

State — but did not file the amendment with the clerk of superior

court. See id. at 913 (1). Under those circumstances, we said we were

“unwilling to hold that the mere failure to also file the completed

ordinance in the office of the clerk of court made it an ineffective

charter amendment.” Id.

Jackson’s implicit holding that “substantial compliance” with

the law is all that is required to effectively amend a city charter un-

der the Home Rule Act is subject to question. Substantial compli-

ance is a concept that has ordinarily applied to excuse relatively mi-

nor or immaterial failures of public officers to comply with duties or

requirements imposed on them by law, or similarly minor “discrep-

ancies in format or phraseology” between what a statute requires

and what a person does. See, e.g., OCGA § 1-3-1 (c) (“A substantial

compliance with any statutory requirement, especially on the part

of public officers, shall be deemed and held sufficient[.]”); Martina v.

14
Elrod, 293 Ga. 538, 539 (1) (748 SE2d 412) (2013) (explaining that

“[t]he doctrine of substantial compliance, though tolerant of varia-

tions in the mode of expression utilized to satisfy statutory requi-

sites, nonetheless requires actual compliance as to all matters of

substance,” and that “minor discrepancies in format or phraseology

are acceptable, but the omission of substantive elements is not”) (ci-

tations and punctuation omitted). But as we just discussed, OCGA

§ 36-35-5 does not impose a duty or command the doing of anything;

it simply identifies conditions that must be satisfied before a charter

amendment becomes effective, and it denies permission to treat such

an amendment as effective in the absence of those conditions. It is

not at all clear that the concept of “substantial compliance” maps

onto this kind of statute.

Despite these concerns, we need not disturb Jackson here.

Even assuming substantial compliance is enough to allow a charter

amendment to go into effect, the City here did not even substantially

comply. As the trial court found, although the redistricting charter

15
amendment was published and adopted by the City, none of the re-

quired filings were made, with anyone. That makes this case differ-

ent than Jackson, where the City filed a copy of its amendment with

the Secretary of State but not with the superior court clerk. And that

difference matters, because filing with the Secretary of State is how

a municipal charter amendment is recorded in the published laws of

the State.4 In any event, making no filings of any kind could hardly

be considered “substantial compliance” with a statutory require-

ment that consists entirely of making filings, see OCGA § 36-35-5.

Because the conditions set by OCGA § 36-35-5 for making the

charter amendment here effective were not satisfied, the 2011 elec-

tion map for the City of Waycross was not effective at the time of the

2023 election at issue.5 And with that premise gone, Strickland’s

challenge fails. The challenge relied on the assumption that the 2011

4 The statute requires the Secretary to “provide for the publication and

distribution of all such amendments and revisions at least annually,” see
OCGA § 36-35-5, and an affidavit from a member of the Secretary’s office con-
firms that municipal charter amendments are published in the Official Code
of Georgia Annotated, under Local and Special Laws, once they are filed with
that office.
5 Nothing in this decision should be read to preclude the City from mak-

ing the filings required by OCGA § 36-35-5 to make the 2011 map effective.
16
map was in effect and thus should have been used for the 2023 elec-

tion. That assumption about the map was the sole basis for Strick-

land’s contention, and the trial court’s conclusion, that enough votes

were cast in the wrong districts to call the election results into doubt.

Because the 2011 map was not effective at the time of the election,

there is now no basis in the record for that conclusion, so this elec-

tion challenge fails. See Martin, 307 Ga. at 222-223 (3) (a).

Judgment reversed. All the Justices concur, except Boggs, C. J.,
not participating.

17
Decided January 28, 2025.

Election. Ware Superior Court. Before Judge McCorvey, Senior

Judge.

Grubman Warner & Berry, Joseph J. Siegelman, Jeremy T.

Berry, for appellant.

Glahn Law, Travis M. Glahn; Steffen Law Firm, Joseph J. Stef-

fen, Jr., Brandy S. Mai; Hall Booth Smith, Jennifer D. Herzog, Nich-

olas A. Kinsley, for appellees.

Rusi C. Patel, amicus curiae.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: January 28, 2025