Georgia Legislator tries to overturn his second election loss

ATLANTA (FOX 5 Atlanta) - A North Georgia legislator has returned to court to try to overturn his election loss - for the second time. Banks county representative Dan Gasaway lost his first election, appealed, got it overturned, then lost again in the second election.

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FOX 5 Senior I-Team reporter Dale Russell has covered this case for weeks and was in court for Gasaway's latest appeal.

They came to court to make sure that every vote counted - especially their own vote. 

“It upsets me that I voted and it didn't count,” Sandra Denton testified.

“They just threw my vote away and I didn't like it,” Michael Burrell added.

Michael Burrell and Sandra Denton were two of the key witnesses in State Rep. Dan Gassaway's attempt to get a third shot at winning his state house seat. He is suing the Habersham and Banks county board of elections, claiming at least 21 voters either voted in the wrong race or didn't get to vote in the right race. Gasaway lost by only 2 votes.

“It's not rocket science,” Gasaway’s attorney jake Evans told the judge, “there has to be accountability, this has to be corrected.”

Back in September Gasaway and his attorney Jake Evans went to court to throw out the first House District 28 election results. Gasaway lost the primary by 67 votes to Chris Erwin. There was no Democratic opponent. 

Using the county's own elections official's testimony and detailed sophisticated mapping, attorney Jake Evans convinced the judge at least 70 people voted in the wrong districts. Enough to potentially change the results. 

“It's going to be necessary to conduct a new election,” specially appointed judge David Sweat said at the time.

Judge Sweat ordered a new election. Gasaway lost again. This time by 2 votes. And once again, he challenged the results, arguing in court at least 21 people's votes were wrong. 

Banks and Habersham county lawyer, Bryan Tyson, told the judge during his opening statement that there is a process in the law that allows for people to move out of district and still vote there. 

He also said at most Gasaway has only one improper vote.

High school principal, Carrie Akers, admitted in court that she had moved out of the Gasaway's house district long before the election, but voted in the election anyway.

The most controversial allegation made during the legal challenge is that Banks county Sheriff Carlton Speed was ineligible to vote, because he really lives on the other side of the Banks county line - in Franklin county. 

Sheriff Speed vehemently denies it and the told the I-Team that weeks ago.

“My residence was called into question several years ago and it was decided in court,” Sheriff Speed told us.

Banks and Habersham county attorney Bryan Tyson told the judge it is not as simple as Dan Gasaway argues. Tyson plans to introduce evidence that the law allows for a process where who moved outside of Gasaway's district can to still legally vote there.

The defense has yet to begin its case, which will resume on Wednesday.