This article was updated to clarify that the case against Tommy Davis for alleged illegal campaigning will be dismissed through a letter of instruction from the State Election Board.

ATLANTA — Newton County’s sheriff was among Georgians the State Election Board referred to the attorney general’s office for alleged violations of election laws Wednesday, Aug. 18.

The Board voted to send the case against Sheriff Ezell Brown for possible criminal prosecution on a charge of illegal campaigning rather than dismissing it and giving him a letter of instruction as the board’s staff recommended.

Brown’s attorney, Ed Tolley, said the sheriff was asking the board to dismiss the complaint against him for actions he took at an advance voting site at the County Administration Building in October 2020. 

One part of state law governing sheriffs’ duties conflicts with state election laws requiring a candidate to remain at least 25 feet from a line of voters, he said. 

“It’s not an option for him to not attend,” Tolley said. “It is actually a misdemeanor for the sheriff to fail to attend the polls.”

Board member Ahn Le said questions from her and other members about Brown’s actions led her to conclude it was “a contested issue” and she moved for the board to refer the case to the state attorney general’s office. 

The case against Brown stemmed from his assertion that he was at a polling place on Oct. 12, 2020, because state law requires the sheriff to check “the place or places of holding an election at the county site, on the day of an election, from the opening to the closing of the polls, and to take under his charge all subordinate officers present, as police to preserve order.”

Brown was a candidate for reelection in a contested race on the ballot that day when he traveled to the administration building on the first day of the three-week advance voting period. 

The line of voters at times snaked around the rear of the building before circling the block along Pace, Usher and Elm streets on the first day of advance voting Oct. 12 before the election.

Chief Investigator Frances Watson of the Georgia Secretary of State’s office said an investigation found that Brown was talking to those in line to cast ballots.

The action appeared to violate state law barring anyone from soliciting votes within 25 feet of a voter standing in line at a polling place.

Watson said Brown denied to an investigator he was campaigning.

“He stated he was there to assess the situation of long lines and to respond to a medical emergency,” Watson said.

“However, there were several sheriff’s deputies ... at the precinct and there were no dispatched calls for service at the administrative building on that date.”

Watson said the elections director told Brown he “could not be present at the polling precinct and he agreed to leave.”

She said he returned to the precinct a few days later and gave the director a copy of the state law that he said authorized him to be at any polling precinct.

Tolley said Brown went beyond the mandated limit from the polling place specifically to speak with the election director. He also told the Elections Board state law requires Brown to be at voting precincts.

He said if the Georgia General Assembly intended to prevent a sheriff who is also a candidate from attending a polling location it “could have easily done so.”

“You have a conflict in the statute. The sheriff is mandated to go to the polling places. If he doesn’t go, he violates his duty,” Tolley said.

“It’s not up to the state Election Board that they want to apply one statute over the other,” he said. 

Board member Matt Mashburn said he was a poll watcher for many years and always knew the location of the 150-foot limit anyone must observe when campaigning.

“Based on my personal experience, I feel the sheriff can fulfill his duties under (state law) from 150 feet away,” Mashburn said. “If anything needed to be handled closer in he could send a deputy.”

Le said the law which includes the 150-foot rule was designed to “level the playing field” for all candidates.

However, Tolley replied that state law does not specifically limit a sheriff to remaining 150 feet from a polling place.

Brown said in a statement after the board’s vote: “On Oct. 14, 2020, the Secretary of State’s office received a complaint from a local citizen, Scott Jay, accusing me of campaigning illegally outside the Newton County Administrative Building during early voting. Mr. Jay said I was seen speaking with voters in line.

“I was present outside the Administrative Building, but I was not campaigning. I was there in response to a telephone call from Sgt. (Victoria) Hammond, supervisor of Court Services section of the sheriff’s office, advising me of a voter who was experiencing a medical emergency and had passed out while waiting in line. Sgt. Hammond asked me to review the situation and instruct her how to handle the situation.

“Before I could handle the emergency and leave, the election supervisor intervened and advised that I could not be present at the polling precinct.

“After investigating the allegations, the Secretary of State’s office found a potential violation of the state election code because his investigator found, “There is evidence to suggest Newton County Sheriff Ezell Brown violated O.C.G.A. section 21-2-414(d)” which provides that no person whose name appears on the ballot shall physically enter any polling place except to vote.

“I was completely within my rights and duties as sheriff to be at the polling place on an election day. The investigator, election supervisor, and the State Election Board were apparently unaware of a specific a law pertains to Georgia Sheriffs’ duties.

O.C.G.A. Section 15-16-10(a)(10) provides it is the duty of the sheriff to attend at the place or places of holding an election from the opening to the closing of the polls, and to take under his charge all subordinate officers present, as police to preserve order.

“Subsection (b) of that same code section says if any sheriff fails to comply with this code section he or she shall be fined for contempt of court. This law was first passed by the Georgia General Assembly in 1799 and has been law ever since.

“My lawyers tell me I am on solid legal ground and I have not violated the election code. 

“Because of the confusion and apparent conflict between these provisions of the law, my lawyers asked that the complaint be forwarded to the Attorney General’s office for review and disposition. I will gladly let you know how it turns out. I am confident about my legal position.”

In a related case, the State Election Board voted to send a letter of instruction to dismiss charges against Interim Coroner Tommy Davis, who also faced allegations of illegal campaigning on the same day.

According to Watson, Davis said he was within the distance limit to voters in line at the Administration Building on Oct. 12. He said he was traveling with a campaign sign on his personal vehicle on one of the roads around the building because it was the shortest route to his destination at the time, Watson said.

The State Election Board issues letters of instruction in cases where it believes a technical violation may have occurred, but it does not rise to the level of referring the violation to the Attorney General’s office for further action, said Secretary of State spokesman Walter Jones. 

Jones said a letter generally is issued because a violation was judged to be inadvertent, due to a lack of understanding, or something that the respondent shows has been corrected and will not occur again. 

They are designed to ensure the infraction is not repeated in lieu of pursuing fines, criminal prosecution or other penalties, he said.