Brad Raffensperger, Georgia secretary of state. (Photo: John Disney/ALM)

A Georgia political action committee that raises money to support diverse candidates for judicial office has asked to intervene in a case seeking to reinstate the canceled election for a departing state Supreme Court justice's seat. 

Alarmed by the March 1 cancellation of the election to replace Justice Keith Blackwell, the Advocacy for Action Fund sought permission Wednesday to intervene in support of a pending mandamus petition by former congressman and Athens attorney John Barrow, a would-be candidate for Blackwell's seat. Blackwell announced Feb. 28 he will step down next November.

Barrow and Beth Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary who also intended to run for Blackwell's post, are both seeking writs of mandamus that would force Secretary of State Brad Raffensperger to reinstate the canceled election. A hearing is scheduled before Fulton County Superior Court Judge Amy Richardson on Friday morning. 

Raffensperger canceled the election after Gov. Brian Kemp said he intended to appoint Blackwell's replacement, even though Blackwell will not step down until Nov. 18. Blackwell's term ends Dec. 31, and he would have faced a reelection with likely challengers in May if he had not announced on Feb. 28 his intention to resign nine months from now. The state Judicial Nominating Commission began soliciting nominees for Blackwell's post last week. 

The fund's petition argues that eliminating an election for Blackwell's seat "sets an untenable precedent" for future state judicial elections.

"Permitting the secretary [of state] to cancel a scheduled election because the governor anticipates a vacancy in the incumbent's position after the scheduled election degrades the constitution," the petition argues "It also diminishes the confidence of attorneys who are members of historically oppressed communities who seek election to judicial office that they will ever benefit from free and fair elections."

The motion was signed by Joyce Lewis and Adam Sparks of Atlanta's Krevolin & Horst.

Lester Tate, a former president of the State Bar of Georgia and one of three attorneys representing Barrow, said Thursday that Barrow will likely not oppose the fund's motion to intervene. Tate is co-counsel with Pope McGlamry lawyers Chuck Byrd and former U.S. Rep. Buddy Darden.

"Our concern is that this matter get adjudicated as quickly as possible so that we can get John on the ballot, along with whomever else gets appropriately qualified and have an election," he said. "I have no concern with them being in the case. I just want to make sure that everyone who gets in the case is aware that we need to move with all deliberate speed to get this matter adjudicated."

Atlanta attorney Suzy Ockleberry, the PAC's co-convener, said Blackwell's maneuver in resigning his seat but not stepping down until November "seems to be a way around allowing the people to elect the next Supreme Court justice for that seat."

Ockleberry said Blackwell's resignation announcement and Raffensperger's decision to cancel the election happened so quickly—in less than 72 hours—that there wasn't time to allow people to assess whether they could have qualified.

She said that at least one potential candidate, Superior Court Judge Horace Johnson Jr. of the Alcovy Judicial Circuit, could have entered a race for Blackwell's seat. Johnson was running for retired Justice Robert Benham's seat until Benham upended Johnson's campaign last December by announcing he would step down early and allow the governor to name his replacement. Johnson had raised more than $126,000 in that race before it was canceled. Barrow also was campaigning for Benham's seat when the justice decided to retire rather than complete his term. 

Although Johnson's name was submitted to the state Judicial Nominating Commission as a candidate to replace Benham, he was not included in the JNC's finalist list. 

"What we are seeing is an erosion of the ability of the people to elect judges, particularly for these higher courts," Ockleberry added. "That's disheartening for our organization, especially when you are talking about trying to increase diversity on the bench."

Lewis said the PAC decided to intervene because, "Over the past 20 years, we have had five, total, five incumbent appellate judges or justices who have faced opposition in elections. Every single one of them has retained their seat."

"It doesn't take a lot of imagination to expect that lawyers who are aspiring to the appellate bench feel like they have to wait until there is an open seat before they run for election. The opportunities to do that are few and far between. … With the few opportunities that there are for elections for open seats on the appellate bench, it is concerning when one of those opportunities gets taken away."