Justice Keith Blackwell (left) and Bruce P. Brown. (Photos: John Disney/ALM)

Three Georgia voters—including the widow of former state Supreme Court Chief Justice Charles Weltner—filed a federal lawsuit Tuesday challenging the Georgia secretary of state's cancellation of an election for sitting Justice Keith Blackwell's seat. 

Anne Glenn Weltner joined with Statesboro civil rights attorney and former Georgia NAACP president Francys Johnson Jr. and Laura Register, a former member of the Grady County Board of Education, to sue Secretary of State Brad Raffensperger over claims he violated state law, and a civil rights statute barring voter disenfranchisement.

Weltner, a former U.S. congressman who was the only member of Georgia's congressional delegation to vote for the Civil Rights Act of 1964, retired in 1966 rather than swear a loyalty oath to the state Democratic Party that would have required him to support Lester Maddox. Appointed to the state Supreme Court in 1981, Weltner was only the second person selected by the John F. Kennedy Presidential Library to receive the John F. Kennedy Profile in Courage Award in 1991.

The suit seeks a court order directing Raffensperger to reinstate the nonpartisan general election he canceled after Blackwell resigned Feb. 26. His resignation does not take effect until Nov. 18. it has been assigned to U.S. District Senior Judge Orinda Evans.

Raffensperger canceled the election after Kemp's staff notified him that Blackwell's resignation created a vacancy that the governor intends to fill by appointment. Blackwell's six-year term was set to end Dec. 31.

Citing a string of federal voting rights suits dating back to 1886, the new suit contends that canceling the election for Blackwell's seat "is an absolute restriction on the plaintiffs' right to vote." 

The Constitution does not require that state justices be elected, the federal suit contends. But once the state decides justices are to be elected, "The state may not invidiously, arbitrarily, or unreasonably disenfranchise voters."

The plaintiff voters are represented by Atlanta attorney Bruce Brown, co-counsel on an ongoing federal case intended to force Georgia, for security reasons, to conduct future elections by paper ballot.

The suit also mirrors pending state challenges of Raffensperger's decision to cancel the election put forth by two would-be candidates for Blackwell's seat—Athens lawyer and former U.S. Rep. John Barrow and former state Rep. Beth Beskin, a partner at the Atlanta office of Mathis Freeman & Gary. After their attempts to qualify for Blackwell's post were rebuffed by Raffensperger's staff, both attorneys unsuccessfully sought writs of mandamus that would order Raffensperger to reopen qualifying and reinstate the election.

Their emergency appeals are currently pending before the Supreme Court of Georgia. Blackwell and four of his seven fellow justices have recused.

Respresentatives for the secretary of state and the state attorney general, whose office is defending Raffensperger in the state litigation, declined comment on the federal suit.

But Attorney General Chris Carr argued in an appellate brief that once Blackwell's resignation was accepted, he can't rescind it and  "is legally bound to leave his office on the effective date of his resignation." Therefore, his seat on the Supreme Court is vacant, Carr contended, even though Blackwell has stipulated that he continues o serve as an active member of the bench and perform all his judicial duties. 

"The governor is now constitutionally obligated to fill the vacancy by appointment before the end of Justice Blackwell's term," Carr concluded. 

Like the pending state litigation, the federal suit argues the governors's appointment power has not been triggered because Blackwell's seat isn't vacant, and won't be until six months after the scheduled May 19 election. In canceling the election, the suit contends that Raffensperger broke state law and disenfranchised Georgia voters, including the three plaintiffs, in violation of the 14th Amendment's due process guarantees. 

The suit also contends the only circumstance under which Raffensperger would be legally authorized not to hold an election would be if Kemp appointed Blackwell's successor, who assumed his office, effectively ending Blackwell's term.

"Georgia law does not give the secretary [of state] the authority to deem an occupied seat on the Georgia Supreme Court vacant," the suit states. "The only purpose served by Justice Blackwell's advance notice of his anticipated resignation, and the governor's immediate acceptance of that advance notice, was to allow Justice Blackwell to serve for all practical purposes his entire term, but at the same time give the governor and the secretary of state an argument (thin as it is) to cover an otherwise naked exercise of executive power to appoint a justice that the people of this state are entitled to elect."