proven otherwise this week,” Fleming said, adding, “ I’m not going in the gutter. They want to play dirty tricks. This is simply politics of desperation.”
Jimmy Alexander, attorney for Fleming, called the actions of the Vinson campaign to disqualify Fleming after the Republican primary, a “ cheap shot.”
Though Oeland said the Vinson campaign had known for some time about Fleming’s homestead exemption, they decided to not raise a challenge until Georgia Secretary of State Karen Handel issued a release stating homestead exemptions should be viewed as the legal residence of individuals running for office.
“ I’m a lawyer. Randy looks to me for legal advice and frankly I didn’t understand the issue enough legally to be able to act on it until after the [ Public Service Commissioner candidate Jim] Powell decision and the secretary of state made her statement that I think is clearly on point with the facts that we have here,” Oeland said.
Because of the inconclusiveness of the BOE’s decision, Oeland said the campaign is currently weighing what their next step should be and is considering requesting an opinion on the matter from the secretary of state’s office.
“ The trouble that we’re running into now is the board of elections didn’t make a decision. To appeal something there has to be a final decision made at the lower level before your appellate rights kick in,” Oeland said, adding that because both motions to uphold and deny the challenge to Fleming’s candidacy failed, there is no clear ruling from the BOE.
Questions on Georgia law
An earlier challenge to Fleming’s candidacy filed by Jerry Childers, first vice chair of the Newton County Democratic Party, was thrown out by the BOE when they ruled that it was not filed within the two weeks after qualification ends, as Georgia law requires for voters.
At the request of Oeland, the BOE then voted to open its own hearing based on its role as elections supervisor for Newton County because of evidence Fleming does have a current homestead exemption filed for a home not in District 5.
“ I’m going to have to make a motion that we make a challenge for the simple reason of upholding this Georgia election code,” said BOE member Edwards, adding “ nothing personal against Mr. Fleming.”
A hearing was then immediately convened with the consent of Fleming. The meeting was attended by a number of Newton County Democrats and Republicans including State Sen. John Douglas ( R- Social Circle) and Republican Party Chairman Steve Bray, who both spoke on Fleming’s behalf.
Fleming’s attorney, Alexander, entered into evidence as proof of his residency in District 5 a lease/ purchase agreement to buy a house on Floyd Street from Esther Fleming, Tim’s father and the District 3 commissioner.
Copies of utility bills for the Floyd Street home, Fleming’s driver’s license and his federal income tax bill were all also entered to show that Fleming physically resided in the Floyd Street home, which he testified he moved into in late March.
Newton County’s election code requires candidates running for county office to have resided within the district they are seeking to represent for at least six months immediately preceding the date of the general election.
Since qualifying Fleming said he has spent many hours campaigning around the district and has spent thousands of campaign dollars.
Oeland then told the board that regardless of where Fleming physically lived, Georgia law states the house where a homestead exemption is filed is viewed as the person’s true residence.
“ Sometimes where you live, where you stay from night to night, is different than your residence or domicile for purposes of standing for election,” Oeland said.
Both Oeland and Alexander cited the Jim Powell case to bolster their side of the argument. Powell, who is running as a Democrat for the state’s Public Service Commission, has been disqualified from running for office, despite winning his party’s nomination, by Secretary of State Karen Handel, a Republican.
In disqualifying Powell from running for office, Handel cited a homestead exemption he had filed for a home located outside of the district for which he is campaigning. Powell successfully appealed Handel’s decision with the Fulton County Superior Court, which ruled he should be allowed on the ballot.
Powell’s case is set to be heard by the Georgia Supreme Court, after Handel appealed the Fulton County ruling.
In Porterdale last fall, Elections Superintendent Tom Fox ruled an existing homestead exemption filed by Gigi Shinall was enough to disqualify her from running for the Porterdale City Council, even though Shinall was able to prove her physical residence was within the city’s limits.
The BOE’s attorney, Peter Olsen seemed to weigh in on the side of Fleming when he noted that the Georgia Supreme Court when ruling on residency cases in the past has looked favorably on the “ intent to reside” — where individuals physically live, rather than where they may have a homestead exemption claimed.
“ You have to look at the totality of the circumstances that determine the intent of the candidate,” Olsen said.