Judge Emily Richardson, Fulton County Superior Court. (Photo: Jennifer Ward Davis/GDLA)

A Fulton County judge said she'll decide Monday morning whether to order the secretary of state to allow candidates to run for a seat on the Georgia Supreme Court that will be vacant in November.

Lawyers representing two would-be candidates for the seat argued that Gov. Brian Kemp and Secretary of State Brad Raffensperger "illegally manipulated" the system to deny voters the right to select a replacement for Justice Keith Blackwell, who last month announced he will step down effective Nov. 18. 

Former Congressman John Barrow and attorney Beth Beskin claim they were denied the right to seek office when Raffensperger refused to let them qualify to run for the seat, saying in a letter to Barrow that Raffensperger thought it was "prudent" to cancel the election because Kemp was going to appoint Blackwell's successor.

Lawyers for Barrow and Beskin subpoenaed Blackwell, Raffensperger, Kemp's executive counsel David Dove and the head of the state Judicial Nominating Commission to appear at Friday's hearing, but they did not appear, instead submitting stipulated statements to the court.

The judicial hopefuls have filed mandamus petitions asking Fulton County Superior Court Judge Emily Richardson to order Raffensperger to reopen qualifications, which ended last Friday.

Beskin's lawyer, Cary Ichter, and Barrow's attorney, Lester Tate, said Blackwell's resignation letter and stipulation proved the justice continues to serve and fulfill all his duties, and will continue to do so until he leaves in November.

"The seat is not now and has not been vacant," said Ichter, and the governor has no authority to halt an election to fill a seat that is already occupied.

"The vacancy is not effective until the resignation is effective," he said.

Blackwell's stipulation made clear that he is still hearing cases, authoring opinions and drawing a state paycheck, Ichter said.

"That is not a description of the activities of someone who has vacated their position," Ichter said. 

"The only inference is that there's been a systemic manipulation of the Georgia Constitution," said Barrow's attorney, Lester Tate.

Deeming Blackwell's letter announcing his intention to resign six weeks before his term would expire in November in no way creates a vacancy the governor can fill instead of the voters, Tate said.

"This case involves a twisting of words to thwart the plain meaning of the word 'vacancy,'" he said.

Raffensperger is represented by the state Law Department, and Senior Assistant Attorney General Russ Willard said the decision to bar the petitioners' from qualifying was clearly within the secretary of state's authority.

"They may not like the way the secretary of state has exercised his discretion," Willard said.

"The fact that Justice Blackwell's letter of resignation has been accepted by the governor is what created the vacancy," he said. 

There is no mention in the Constitution as to a required timeframe for the announcement of a judicial resignation to constitute a vacancy the governor can fill, Willard said.

"A vacancy is created by a resignation when it is accepted, not when it is tendered," he said.

The statute regarding such appointments "is troublesome on one level, because the voters expected to vote on May 19," Willard said. 

"But what they gloss over is that there is a vacancy here," he said, pointing to case law he said backed up his definition of "vacancy" in judicial elections.

The appointment process was authorized by the 1983 Georgia Constitution, Willard said.

Protestations that the people are being denied their right to vote are misplaced, he said.

"The people had their say in 1983," Willard said.

Richardson said she would consider the arguments and briefs over the weekend and is well aware that any ruling will go before the Georgia Court of Appeals.