Justice Keith Blackwell, Supreme Court of Georgia. Photo: John Disney/ ALM

The Supreme Court of Georgia decided Wednesday that the secretary of state cannot be compelled to hold an election for Justice Keith Blackwell's seat. 

The high court ruled 6-2 that Fulton County Superior Court Judge Emily Richardson was right to deny petitions by former U.S. Rep. John Barrow and former state Rep. Beth Beskin seeking to compel Secretary of State Brad Raffensperger to reinstate the election for Blackwell's seat.

But the majority opinion, written by Justice David Nahmias, held that while Richardson's ruling was correct, her legal reasoning was wrong. Nahmias is one of three justices who refused to recuse. The others are Chief Justice Harold Melton and Justice Sarah Warren, both of whom concurred in the majority ruling.

Blackwell and five other colleagues recused. Two of their replacements—Ocmulgee Circuit Superior Court Judge Brenda Trammell and Fayette Circuit Superior Court Judge Scott Ballard—dissented, calling a gubernatorial appointment to fill Blackwell's seat unlawful.

Barrow, an Athens attorney, and Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary, sought mandamus writs after Raffensperger's staff informed them the election had been canceled.

Raffensperger did so at Gov. Brian Kemp's request after he was notified that Kemp intended to appoint the justice's replacement. Blackwell, who would have faced reelection this year, announced in February he will step down Nov. 19.

In the 71-page opinion, the majority held, "A vacancy in a public office must exist before the governor can fill that office by appointment, and a vacancy exists only when the office is unoccupied by an incumbent."

But the majority said that because Blackwell remains in office, "The trial court erred in concluding that his office is presently vacant" and thus Kemp's appointment power to replace Blackwell "has not yet arisen."

However, Nahmias wrote: "Even if Justice Blackwell's office is not vacant yet, if his accepted resignation will undoubtedly create a vacancy in his office on November 18, his term of office will go with him, and the next six-year term of his office that would begin on January 1, 2021, will never exist."

"So an election held on May 19, 2020 for a term of office that will never come to exist would be legally nugatory, and the secretary could not be compelled by mandamus to conduct it," he said. The May 19 election was postponed and is currently scheduled to take place June 9.

The majority also held that Blackwell's slated resignation is irrevocable, so "a vacancy in his office is inevitable by Nov. 18."

In a separate concurring opinion, Melton concluded, "The governor has the constitutional authority to appoint a new justice to this court in response to the vacancy created by Justice Blackwell's resignation."

"The genius of our democracy is that, to the extent the people of Georgia now second-guess the system of elections and appointments they ratified in the 1983 Constitution, they have the power to seek amendment to that foundational document," he said. "But it is not the job of judges to usurp that power by rewriting constitutional provisions ratified by the people, or by rewriting laws enacted by the people's democratically elected representatives."

In a 25-page dissent, Trammell, joined by Ballard, said that appointing Blackwell's replacement is "unlawful."

She criticized the majority for giving "greater weight" to constitutional provisions allowing gubernatorial appointments, saying that the power of appointment "is an exception to the general rule requiring that justices be elected."

She also called appointment "constitutionally inferior."

"The majority would cancel the scheduled election to allow the governor to make an appointment that cannot be made until after the scheduled election," Trammel said. "Why? The majority says that the winner would not be permitted to take office because of the anticipated appointment, so the election need not be held."

On Thursday, Barrow called the decision "tainted" but thanked the dissenting judges "who actually did the work of proving that the voters who ratified our constitution never intended anything like this."

"Judges should not manipulate the law the way Brian Kemp and Justice Blackwell have manipulated the election," he said.

Former U.S. Attorney Michael Moore, now a Pope McGlamry partner and one of a team of attorneys representing Barrow, on Thursday called the majority opinion "pretzel reasons—turning and twisting the law to make it fit a predetermined outcome."

"Had Justice Blackwell simply finished his term—and to do that he only had to stay in office just over 40 more days—the people of Georgia would have been able to vote on a new justice to replace him," Moore said. "This seat on the court was sold for the price of a judicial pension and barely 40 days. The Supreme Court has determined that the power of the governor to appoint exceeds the right of the people to vote."

"The disconcerting reality is that the majority of the Supreme Court just surrendered the keys to the courthouse to whomever occupies the governor's mansion," Moore said.

Barrow co-counsel Lester Tate, former chairman of the state Judicial Qualifications Commission which polices Georgia judges' ethical conduct, said he was struck by the fact that the three justices who he said should have recused "are the only reason the state won."

"If Justice Warren, Justice Nahmias, and Justice Melton had recused like every other judge in the state would have been required to do if they had been sitting in judgment of a colleague's conduct, there easily could have and would have been a different result."

Beskin's attorney, Cary Ichter, a partner at Atlanta's Ichter Davis, said he and his client "are deeply distressed" by the ruling.

Ichter said the ruling would allow an incumbent who runs for office and loses to resign before the end of his term "and empower the governor to appoint him (the loser) for a shortened appointment term," negating the election.

"The court's decision ensures that a mechanism to thwart the 'legal meaning' of elections will always be available for seats on the court," he said. "It is frightening to think the court has issued a decision so shortsighted with respect to its potential unintended consequences. The entire scheme … is likely subject to serious constitutional challenge."