Keaton and Davis are two of three candidates vying to replace retiring Cobb Superior Court Clerk Jay Stephenson. Powder Springs attorney John Skelton is also running.
The board met for about three hours late Monday afternoon, listening to testimony in a cramped room in the elections office off Whitlock Avenue, with some attendees spilling into the hallway. Cobb NAACP Chair Deane Bonner, Cobb GOP Chairman Joe Dendy and Stephenson were in the audience.
Four of the board members — Guy Drexinger was absent — sat at a front table with board attorney Gregg Litchfield.
They first heard the Davis case, with Davis and her attorney, Sims W. Gordon Jr. of Atlanta, sitting at one table, and Barry J. Schwartz, who lives in the Cumberland area, and his attorney, Alan Manheim, sitting at another.
The two sides presented their arguments from about 4 to 6 p.m., at which point the board entered executive session, coming out about 15 minutes later to deny Schwartz’s request to keep Davis off the ballot in a 4-0 vote.
Manheim argued that Davis should be kept off the ballot because she listed “lawyer” as her occupation on her declaration of candidacy but has been disbarred by the Supreme Court of Georgia since February.
After meeting in executive session, board chair Beverly Smith asked Litchfield to issue an opinion on the matter. Litchfield said nowhere in Georgia law does it require a candidate for Superior Court clerk to have a particular occupation.
However, Litchfield went to read another Georgia law about who can call themselves a lawyer.
“‘It is unlawful for any person other than a duly licensed attorney at law to assume or use the title’ — and they specifically quote ‘lawyer’ l-a-w-y-e-r — ‘or equivalent terms in any language in such a manner as to convey the impression that he is entitled to practice law or is entitled to furnish legal advice, services or counsel,’” said Litchfield, noting that it was a fact that Davis had been disbarred.
Litchfield went on to cite another law.
“‘Any person knowingly making any false statement in connection with qualifying as a candidate for party nomination commits the offense of false swearing,’” he said. “It also states … ‘that the district attorney shall commence prosecution of any person when it appears that a violation of this code section has occurred.’”
While Litchfield said it is not within the election board’s jurisdiction to determine if the offense of false swearing occurred, he said he believes the board should notify the Cobb District Attorney “of this violation.”
Davis was mostly happy with how the hearing turned out.
“I think it was a proper ruling,” she said. “They followed the law, just as I followed the law.”
But she objected to handing the case over to the district attorney.
“There is no false swearing,” she said. “We covered that pretty appropriately, that it simply said what was the profession. I said ‘lawyer’ only because of law school, but the prohibition they’re worried about is I’m not supposed to hold myself out as having the ability to practice law, which I’m not doing that because … you can’t in this position.”
Manheim said he was considering appealing the board’s decision to Cobb Superior Court, “but we also will follow the board’s mandate and recommendation to refer this to the district attorney’s office.”
In his original complaint, Manheim had listed a second reason for Davis to be bumped from the ballot, which was that she listed existing chief deputy clerk Elva Dornbusch as who she would appoint chief deputy clerk if elected. Manheim dropped that complaint against Davis during the hearing, but still brought it up, saying it spoke to Davis’s character. Testifying to the elections board, Dornbusch said that she never agreed to serve with Davis and would never agree.
Next up, the board considered the challenge to Keaton’s candidacy by attorney Michael Carvalho of west Cobb. Carvalho argued that Keaton failed to follow election rules, which state that on the date of qualifying for office, the candidate must specify with the Cobb Probate Court who they would appoint as their deputy clerk if elected.
Carvalho said Keaton qualified on May 24 but didn’t file the name of Jason Shepherd as her running mate with the Probate Court until the day after. Later that day, she amended that filing by swapping out Shepherd’s name for that of Kimberly Carroll.
Carvalho sat alone at one table while Keaton, flanked by Marietta attorney Tom Browning and his son, attorney Tyler Browning, sat at another.
In arguing for Keaton, Tom Browning pointed out that there is a general law that covers Superior Court clerks across the state and then there is local legislation that only pertains to Cobb County. General law allows citizens to challenge candidates based on such qualifications as whether they are a citizen and whether they live in Cobb. The local legislation requires the candidate to select a deputy clerk on the same day the candidate qualifies. That requirement is not included in the general legislation, which trumps the local legislation, Browning said.
The board agreed in a 4-0 vote.
Carvalho said he would consider over the next 10 days whether to appeal.
“The rules are important, and I think it’s even more important that somebody that holds a position of clerk know the rules,” he said. “Is it a technicality? Yeah, but that’s what the board gets to choose.”
Keaton said she had expected the board to rule in her favor.
“I really wasn’t worried about it,” she said. “He’s a lawyer and he doesn’t even know the law, so that’s what’s kind of comical. He’s busy talking about the statute of limitations. All the things that he was talking about were things that lawyers have to do, not clerks.
“He misses his statute of limitations, that’s not my problem as a clerk.”
During the hearing, Davis objected to two of the board of elections members — Rob Garcia and Pat Gartland — participating because they are listed on Keaton’s website as endorsing her for office.
Yet Litchfield said he does not believe they had to recuse themselves.
“This board is political by its very nature,” Litchfield said. “The Republican Party appoints a member, the Democrat Party does, the Legislative Delegation does, and the chairman does … They can give money, they can support candidates.”