John Barrow. (Courtesy photo)

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."