Bryan Sells. (Courtesy photo)

A group of Waycross-area residents hoping to oust Circuit District Attorney George Barnhill have asked a federal judge to strike down Georgia's requirement that the people circulating a recall petition be eligible to vote in the recall election.

The complaint, filed Monday in Atlanta at the U.S. District Court for the Northern District of Georgia, said the requirement places an unconstitutional burden on those attempting to gather enough signatures to place a recall vote on the ballot, particularly given the tight time constraints imposed by the state Recall Act.

The suit names Secretary of State Brad Raffensperger in his official capacity as the sole defendant; the plaintiffs include a Waycross pastor and another circuit resident, and a woman who lives in Henry County and is thus unable to help circulate the petition, which has yet to be approved.

Barnhill is under fire for his role in the delayed investigation into the shooting death of Ahmaud Arbery, killed in February after being chased at gunpoint by Travis McMichael and his father, Gregory McMichael, through a neighborhood near Brunswick.

Both McMichaels and a third man, William "Roddie" Bryant, are facing murder charges, and both Barnhill and Glynn County DA Jackie Johnson are the subjects of federal and state investigations.

"Georgia's Recall Act, which was enacted in 1989, requires a lot of signatures in a very short time," said Atlanta civil rights lawyer Brian Sells, who filed the complaint.

"As a result of the Ahmaud Arbery investigation and George Barnhill's alleged misconduct, my clients and a lot of other folks in the Waycross area would like to get George Barnhill on the November ballot for recall," Sells said. "They'd like to have as many folks as possible circulating the petition, and there are a lot of people outside the circuit who would like to help, and to see some small measure of justice for the Arbery family."

Raffenspergers' office and a spokeswoman for Attorney General Chris Carr declined to comment on the suit.

The Daily Report also forwarded the complaint to Barnhill, who is not a named party; he did not reply. 

The Recall Act has three steps. In Barnhill's case, the first is the filing of an application for the petition with Raffensperger's office containing at least 100 signatures of sponsors. Sells said that application was filed Monday and had more than 200 signatures, which must be reviewed within five days.

The next step is the circulation of the petition: In this case, those seeking the recall have 45 days to gather the signatures of at least 30% of the eligible voters in Barnhill's last election, which the complaint said is about 22,000 registered voters.

The election superintendent then has 30 days to review the petition. If there are enough valid signatures, the question is placed on the ballot.

"The Voter-Registration Requirement The Recall Act of 1989 provides that 'no person other than an elector of the electoral district of the officer sought to be recalled shall circulate a recall application or petition,'" the complaint said. 

It argues that the provision violates the First and Fourteenth Amendments to the U.S. Constitution and seeks an injunction barring its enforcement.

Sells also filed a motion for temporary restraining order barring enforcement of the provision, arguing that is "patently unconstitutional under the Supreme Court's decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), and a mountain of other cases."

That case "addressed a nearly identical voter-registration requirement for initiative petition circulators … and concluded that strict scrutiny should apply because the requirement impinged upon core political speech," it said. 

Sells said Georgia's law is "something of an outlier, but only because most states in the South don't have any restrictions on who can circulate petitions. We don't have restrictions on who can circulate a nomination petition to get someone on the ballot, but for some reason Georgia had this requirement in the Recall Act."

Sells said the act is used so rarely in Georgia that the provision may have not been challenged before.

Sells noted that, under the act, Barnhill also has the right to file a lawsuit challenging the petition.

District Judge Leigh May set a Monday deadline for Raffensperger's office to file a response, and scheduled a hearing for next Thursday. 

Barnhill involved himself in the Arbery case one day after the young man was killed. 

Although it occurred in Glynn County, on Feb. 24 Barnhill—whose office was not handling the case at that point—advised the Glynn County Police department that he didn't think there was any reason to arrest anyone for Arbery's death.

On Feb, 27, Glynn County DA Jackie Johnson recused, because the elder McMichael had worked for her office, and Barnhill was assigned the case.

More than a month later, Barnhill announced that he was going to recuse because of connections between Gregory McMichael and Barnhills' son, a lawyer in Johnson's office; before doing so he again advised Glynn County police not to make any arrests. On April 7, he recused, and AG Carr subsequently appointed Cobb County DA Joyette M. Holmes to take over the case. 

Last month, Carr asked both the U.S. Department of Justice and the Georgia Bureau of Investigation to look into the handling of the Arbery case.