Second Candidate Demands Reinstatement of Canceled State Supreme Court Election
Former U.S. Rep. John Barrow is asking a judge to order the secretary of state to reinstate the election for state Supreme Court Justice Keith Blackwell's seat.
March 05, 2020 at 04:25 PM
5 minute read
A former congressman who planned to challenge Georgia Supreme Court Justice Keith Blackwell for his seat this spring asked a Fulton County court Thursday to force the secretary of state to hold an election for the post.
Former U.S. Rep. John Barrow said he filed a petition for a writ of mandamus after the state called off the election for Blackwell's seat in an apparent bid to substitute a political appointment in its place. Barrow said Secretary of State Brad Raffensperger's decision earlier this week to cancel the election for Blackwell's seat at the governor's request "breaks just about every rule in the book" and deprives Georgia voters" of the only opportunity they've got under the [state] constitution to choose a person who is going to serve on their Supreme Court."
Kemp's office has asserted that Blackwell's resignation means his seat is vacant, even though the justice's resignation doesn't take effect until November, according a letter from the secretary of state's general counsel to Barrow earlier this week. Because Blackwell resigned within six months of the state judicial election, the governor contends he has the legal right to pick Blackwell's successor, according to that letter.
"It's no exaggeration to say that the people's right to elect their Supreme Court justices is on the line in this case," said Barrow, an Athens attorney who lost the secretary of state race to Raffensperger in 2018. "And if they can do it in this case, they can do it in any case."
Barrow's mandamus petition is the second filed in the past 48 hours to force Raffensperger to reinstate the election for Blackwell's seat. Barrow is represented by Chuck Byrd, a partner at Georgia firm Pope McGlamry.
On Wednesday, former state legislator Beth Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary, filed a similar petition after she was informed she couldn't qualify to run for Blackwell's post either. Beskin is represented by Cary Ichter of Atlanta's Ichter Davis.
Blackwell's current term expires Dec. 31, and he was scheduled to face reelection in May. Qualifying as a candidate for the post ends Friday. But Blackwell notified Gov. Brian Kemp and the media last week that he intends to resign, but not until Nov. 18. Meanwhile, Blackwell remains active on the bench, participating in rulings, collecting a paycheck and building equity in his state judicial pension.
Raffensperger canceled the election earlier this week after consulting with the offices of Gov. Brian Kemp and Attorney General Chris Carr last weekend.The secretary of state's website initially listed Blackwell's seat as open but deleted it last Sunday, according to Beskin.
On Thursday, Ichter argued that, since Blackwell remains on the bench, "There is no vacancy. Given that you have no vacancy, the election has to proceed," he said.
In response to a request to interview Blackwell, the state Supreme Court spokeswoman said Wednesday that the sitting justice had "nothing more to say" about the matter.
Raffensperger's general counsel, Ryan Germany, notified Beskin and Barrow by letter on Tuesday that because the governor has accepted Blackwell's resignation, he considers it a vacancy he can fill by appointment, even though Blackwell won't actually vacate the post until Nov. 18—six months after the state's May 19 nonpartisan judicial elections.
Germany said that after consulting with Attorney General Chris Carr's office, Raffensperger deemed it "prudent" to cancel the election for Blackwell's seat.
The secretary of state's spokesman referred questions to the state attorney general and governor. Carr's spokeswoman declined to comment, citing attorney-client privilege. The governor's spokeswoman also declined to comment because of "pending litigation."
Barrow said Thursday that Blackwell's seat is not vacant and won't be until the justice actually leaves office in November. "You can't cancel an election except by an appointment to fill a vacancy before the election," he said. "You can't appoint someone to a vacancy before the office is vacant. An office is not vacant if someone is sitting in it and doing the job and drawing his pay and deciding cases that affect every Georgian. … Justice Blackwell's case violates all these rules."
At the heart of the legal dispute over Blackwell's resignation and the cancellation of an election to replace him is a provision of the state constitution that addresses the governor's right to fill judicial vacancies by appointment that are otherwise elected posts. Under that provision, an appointee's term will expire on Jan. 1 following the next general election, but only if the general election takes place more than six months after the appointee takes office.
But if a general election is scheduled less than six months from the date of the governor's appointment, that appointee will not have to run in the next scheduled general election—a buffer of more than two years to secure his or her position as an incumbent.
"The six-month provision was not intended to disenfranchise voters," the Supreme Court of Georgia held in 2004 in Perdue v. Palmour, a case that stemmed from a Chattooga County state court vacancy. Instead, the high court held that the drafters of the 1983 state constitution envisioned that the six month provision "gives voters the right to select the holders of elective office, yet affords the appointee a sufficient opportunity to demonstrate the merit, or lack thereof, of the appointee's service."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllGeorgia Appeals Court Cancels Hearing in Election Interference Case Against Trump
3 minute readJustice Department Says Fulton County Jail Conditions Violate Detainee Rights
6 minute readSupreme Court Rejects Push to Move Georgia Case Against Ex-Trump Chief of Staff Mark Meadows
3 minute read3 GOP States Join Paid Sick Leave Movement, Passing Ballot Measures by Wide Margins
5 minute readLaw Firms Mentioned
Trending Stories
- 1'The Show Must Go On': Solo-GC-of-Year Kevin Colby Pulls Off Perpetual Juggling Act
- 2Legal Speak at General Counsel Conference East 2024: Match Group's Katie Dugan & Herrick's Carol Goodman
- 3Legal Speak at General Counsel Conference East 2024: Eric Wall, Executive VP, Syllo
- 4Battle for Top Talent Accelerates Amid Profit and Demand Surge
- 5Friday Newspaper
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250