Brad Raffensperger, Georgia secretary of state. (Photo: John Disney/ALM)

A federal judge in Atlanta has ordered Georgia's secretary of state to reinstate a district attorney election he canceled so that Gov. Brian Kemp could appoint a replacement. 

U.S. District Court Judge Mark Cohen also held that a 2018 state law intended to expand the governor's authority so that appointed DAs could remain in office longer before they must face election violates the Georgia Constitution.

Cohen said in his order granting a preliminary injunction to former legislator Deborah Gonzalez that nothing prevents Kemp from filling the vacancy created in February when Western Circuit District Attorney Ken Mauldin resigned.  But Cohen said the governor must do so before the close of a special qualifying period the judge set. Cohen also ordered Secretary of State Brad Raffensperger to conduct a special election for Mauldin's vacated post on Nov. 3. The circuit seat is in Athens.

Gonzalez announced last year that she intended to challenge Mauldin.  But instead of running for reelection this year or completing his term, which was slated to expire Dec. 31, Mauldin announced in early February that he was resigning, effective Feb. 29. Kemp began accepting applications to appoint Mauldin's replacement but has not yet filled the vacancy. 

The case mirrors an ongoing legal battle over Raffensperger's decision to cancel a scheduled election for Georgia Supreme Court Justice Keith Blackwell's seat. Blackwell submitted his resignation last February rather than face reelection this year, but with a proviso that he will remain on the bench until Nov. 11.  

Former U.S. Rep. John Barrow, an Athens lawyer, and Atlanta attorney Beth Beskin were prevented from qualifying to run for Blackwell's seat. Both unsuccessfully sought court orders that would have compelled Raffensperger to reinstate the election after the governor's staff informed him Kemp intended to appoint Blackwell's replacement.

Although the Supreme Court of Georgia ruled against Barrow and Beskin, a separate federal suit brought by several Georgia voters is pending in front of Senior Judge Orinda Evans. Barrow is an intervenor in that case.

At issue is a provision in the state Constitution that permits a judge appointed by the governor to fill a vacancy that occurs within six months of a general election to serve until the next election. But Cohen said in his order the state Constitution has no similar provision for district attorneys.

Cohen was dismissive of Raffensperger's claim that the Georgia Supreme Court intended for the six-month provision to apply to all judicial offices, including district attorney.

Gonzalez attorney Bruce Brown said Thursday that Cohen's injunction order means the Georgia Legislature "obviously cannot try to amend the Georgia Constitution, which plainly says the people have the right to vote for district attorney, and candidates like Ms. Gonzalez get the right to run for the office every four years without exception. Period."