Gov. Brian Kemp’s future appointee to the Georgia Supreme Court can serve without running for election until 2022, following a 6-2 decision from the high court issued Thursday.
The ruling went against former U.S. Rep. John Barrow and former state Rep. Beth Beskin, who tried to force an election to replace Justice Keith Blackwell before his resignation takes effect in November.
The Supreme Court took the case after Barrow and Beskin sued Secretary of State Brad Raffensperger in Fulton County Superior Court to get their names on the ballot and lost that case in March.
Blackwell’s seat was set for the May 19 general primary election, which is now postponed to June 9 due to fears of spreading COVID-19. But Blackwell announced in February his plans to resign less than two months before his term expires Dec. 31.
The governor told Raffensperger he planned to appoint Blackwell’s replacement, and Raffensperger told Barrow and Beskin qualfiying for the office was closed.
The maneuver creates a domino effect that could permit Kemp to fill judges’ seats in courts at several levels.
“Governors like having these kinds of powers, particularly on the Supreme Court,” said University of Georgia political science professor Charles Bullock. “Because what can happen is that the governor, in making the decision, then elevates someone off the court of appeals, or maybe the Superior Court, which then creates another vacancy that the governor can fill, the governor can then tap someone off the state court, that’s yet another vacancy for the governor to fill.”
Under the Georgia Constitution, a justice who is appointed with less than six months left in the prior justice’s term is not up for reelection “until January 1 of the year following the next general election which is more than six months after such person’s appointment.”
So, Blackwell’s replacement might not face an election challenge until 2022 for a second six-year term that will begin January 2023.
The 71-page majority opinion was written by Presiding Justice David E. Nahmias.
Nahmias said the state’s constitution “clearly provides that when an incumbent Justice vacates his office before the end of his term, his existing term of office is eliminated, and the successor Justice appointed by the Governor serves a new, shortened term that is unrelated to the previous incumbent’s term.”
Six Supreme Court justices removed themselves from the case and were replaced by Superior Court judges. Superior Court Judge Brenda Trammell and Judge Scott Ballard dissented, saying the ruling is a defeat for Georgia voters.
“The majority is ruling that the appointment power of the Governor trumps the voting power of the public,” Trammell wrote. “Let me be clear. This ruling means that even were the election to go forward and a winner be declared, the appointee defeats the electee.”
Atlanta attorney Michael Moore, who represented the candidates trying to qualify as Democrats, called the decision “pretzel reasoning, turning and twisting the law to make it fit a predetermined outcome.”
“Had Justice Blackwell simply finished his term – and to do that he only had to stay in office just over 40 more days – the people of Georgia would have been able to vote on a new justice to replace him,” Moore said. “The Supreme Court has determined that the power of the governor to appoint exceeds the right of the people to vote. The disconcerting reality is that the majority of the Supreme Court just surrendered the keys to the courthouse to whomever occupies the governor’s mansion.”
Bullock said eight of the state’s nine justices were originally appointed, so it’s not an unusual way to get a seat on the court.
“It’s been a while since I actually did a calculation, but I remember last time I did, something like two-thirds of the judges in Georgia, not just in the Supreme Court, were appointed initially rather than being elected,” he said.
Bullock said down ballot races like judges tend to be re-elected without much of a challenge.
“You go to the ballot box to vote for governor, president, senator, things like this,” he said. “You work your way down the ballot, you come to these judicial positions, and you’re a reasonably informed voter, but you don’t really study that because it doesn’t impact you, and judges tend not to run campaigns. You don’t see their names in the paper. So what do you do? You just go ahead and check the box for the incumbent.”
Trammell, who was appointed by Gov. Nathan Deal, said an important difference with this case is that Blackwell is not set to leave office until months after the election was scheduled to take place.
“I am not against gubernatorial appointments,” she wrote. “However, in this instance, when the resignation will not result in a vacancy in the office until (originally) almost six months after the election, I cannot in good conscience agree that the election should be cancelled and the will of the people thrust aside.”
Moore said there is a chance the case could continue in federal court.
Ann Glenn Weltner, the widow of former state Supreme Court Chief Chief Charles Weltner; Grady County school board member and south Georgia political strategist Laura Register and former NAACP president Francys Johnson are suing Raffensperger in U.S. District Court over Blackwell’s seat.
Barrow and Beskin could join that suit or file their own, although Beskin is now running to unseat Justice Charles Bethel.
“We will be looking at the federal options,” Moore said. “I think the Court’s reasoning is a vivid example of constitutional contortion. Can you imagine another situation where the arbiters of the facts are themselves the actual fact witnesses in the case? I think this would be of interest to the federal court.”