Bruce P. Brown. Bruce P. Brown Law LLC, Atlanta.

Plaintiff voters in a federal lawsuit over who will choose Georgia Supreme Court Justice Keith Blackwell's successor have upped the ante in the fight—asking a federal judge for an injunction that would reinstate the canceled election to replace him. 

Plaintiffs counsel Bruce Brown sought the injunction after the Supreme Court of Georgia signaled it would not expedite consideration of a state appeal by two would-be candidates who were denied the opportunity to run for Blackwell's post. The ruling affirmed Gov. Brian Kemp's right to appoint Blackwell's successor.  

But a federal injunction would require Georgia Secretary of State Brad Raffensperger "to do what he intended to do before he made the errant decision to cancel the election: take all steps necessary to conduct the nonpartisan general election previously set and noticed," Brown said.

Brown said an injunction is needed so that an election for Blackwell's seat will take place during the general primary, now scheduled for June 9, when the largest number of eligible voters will likely participate. He also said there is no time for delay because absentee ballots are already being mailed to voters.

"It cannot be in the public interest to allow the governor to appoint a Supreme Court justice when he does not have the statutory or constitutional right to do so," Brown said.

The motion, filed Friday in U.S. District Court in Atlanta, contends that Raffensperger's decision to cancel the election violates federal civil rights laws. Brown represents Anne Glenn Weltner, the widow of former Georgia Supreme Court Justice Charles Weltner; 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. The case is before Senior Judge Orinda Evans. 

Federal Judge Orinda Evans.

Kemp intends to appoint Blackwell's successor once Blackwell steps down next November, and his Judicial Nominating Commission has already recommended four finalists for the post.  Blackwell submitted his letter of resignation on Feb. 26. 

The central question in both the federal case and the state appeal is whether Blackwell's February resignation letter stating that he will not step down until next November creates an actual vacancy for Kemp to fill. The state attorney general contends it does. 

But Brown argued, "If, as a matter of law, Justice Blackwell's resignation is effective in February 2020, then Justice Blackwell has no right to receive the compensation and employment benefits he is receiving until November 18, 2020."

"The state cannot have it both ways," he said. "It cannot keep Justice Blackwell on the bench and pay him, but treat him as retired for purposes of enabling Governor Kemp to appoint his successor."

Katie Byrd, a spokeswoman for Georgia Attorney General Chris Carr, whose staff attorneys are defending Raffensperger and Raffensperger spokesman Walter Jones declined comment.

Brown also argued that the federal case can, and should, proceed independently of the pending state appeal, which asks the state Supreme Court to reverse a Fulton County judge's refusal to issue writs of mandamus compelling Raffensperger to hold the election.

Brown argued that because the state appeal is over mandamus writs, the state Supreme Court may not even address whether canceling the election runs afoul of both the state and U.S. constitutions. Former U.S. Rep. John Barrow and former state Rep. Beth Beskin both sought the writs after Raffensperger's staff refused to allow them to qualify to run for Blackwell's post. 

"I'm hopeful that the federal court will give the plaintiffs a full evidentiary hearing, as it seems that the federal case may be the only way to save this election," said Barrow lawyer Michael Moore, a former U.S. attorney and Pope McGlamry partner.  "The Georgia Constitution provides for our Supreme Court justices to be publicly elected at the ballot box, not secretly selected in the governor's office.  I don't know what could possibly be taking the Supreme Court so long to do the right thing.  Dragging their feet isn't going to make Blackwell's seat any more vacant today than it was on qualifying day."

"There is a difference between offering a future resignation and creating a current vacancy," Beskin counsel Cary Ichter of Atlanta's Ichter Davis said.  "If the Supreme Court says Justice Blackwell's seat is vacant as Justice Blackwell continues to work with the other justices each and every day, the credibility of the court will be a distant memory."