The Case of the Vanishing Supreme Court Contest: Barrow v. Raffensperger Eliminates the Power of the People to Elect Their Appellate, Superior, and State Court Judges

• Jurisdiction: Georgia,United States
• Publication year: 2021
• Citation: Vol. 72 No. 3

The Case of the Vanishing Supreme Court Contest: Barrow v. Raffensperger Eliminates the Power of the People to Elect their Appellate, Superior, and State Court Judges

Ashley Mallon

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The Case of the Vanishing Supreme Court Contest: Barrow v. Raffensperger Eliminates the Power of the People to Elect their Appellate, Superior, and State Court Judges^*

I. Introduction

Imagine being elected a Georgia Supreme Court Justice. You have spent hundreds of thousands of dollars on your campaign and more than a year of your life running for election, only to have it all come crashing down. You've been informed that your win is now legally meaningless and void, even though you were chosen by the people. You are told that it is now an office that the current Governor gets to fill because the predecessor in the office to which you were just elected, intentionally chose to resign two months early. This political loophole and disenfranchisement of voters is now allowed in the State of Georgia by the Georgia Supreme Court's decision in Barrow v. Raffensperger.¹

Georgia has always been a state that supports elections. We elect everyone under the sun — from Supreme Court Justices to County Coroners.² In a highly contentious and publicized case, the Georgia

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Supreme Court in Barrow v. Raffensperger ultimately held that the Secretary of State is not legally mandated to hold an election for an office that will inevitably become vacated.³

This Casenote will address the events that led to an expedited appeal to the Georgia Supreme Court along with an explanation of the peculiar makeup of the Georgia Supreme Court that heard and decided this case. Further, this Casenote will discuss and provide a background of the law establishing both the elections and appointments of Georgia Supreme Court Justices. In its final points, this Casenote will evaluate the court's reasoning in this landmark decision and the implications that have already arisen as a result.

II. Factual Background

Justice Keith R. Blackwell was an Associate Justice of the Georgia Supreme Court, who began his term of office on January 1, 2015.⁴ His six-year term was set to expire on December 31, 2020.

On February 26, 2020, Justice Blackwell submitted a letter of resignation to Governor Brian Kemp, stating that he "'will conclude his judicial service at the end of the August Term of the Supreme Court,' and asked the Governor to 'please accept his resignation from the Supreme Court,'" effective November 18, 2020—only forty-three days from the official end of his term.⁵

Governor Kemp accepted Justice Blackwell's resignation that same day.⁶ Governor Kemp then notified Georgia Secretary of State Brad Raffensperger that he intended to fill the vacancy by gubernatorial appointment. Secretary Raffensperger then decided to cancel the scheduled May 19 election.⁷ He directed his staff to publicize the decision and notify the candidates who had submitted or attempted to submit the required qualifying fees and documents for the office.⁸

This case ensued when two political veterans, former U.S. Congressman John Barrow and former state Representative Elizabeth

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Beskin, attempted to qualify for this particular election.⁹ The Secretary of State's office would not accept their qualifying papers and fees, and informed Barrow and Beskin that the election had been cancelled.¹⁰ Shortly thereafter, both Barrow and Beskin filed separate petitions for writ of mandamus under O.C.G.A. § 9-6-20¹¹ against Secretary Raffensperger in Fulton County Superior Court.¹² Both petitions sought for the Secretary to accept their applications for Justice Blackwell's office and place the election back on the ballot.¹³

Following an expedited hearing, the trial court denied both Barrow and Beskin's claims in separate but similar orders.¹⁴ The court found that under Georgia law, once the resignation was accepted by Governor Kemp, a vacancy existed for him to fill.¹⁵ As a result, Secretary Raffensperger no longer had a statutory duty to hold the scheduled May 19 election.¹⁶ Additionally, the trial court reasoned that since the office would be filled by appointment before December 31, 2020, the appointee would serve a newly created term, which would now end on January 1, 2023.¹⁷ Immediately thereafter, Barrow filed an emergency motion with the Georgia Court of Appeals, pleading for expedited consideration of

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the trial court's decision.¹⁸ This motion was then transferred to the Georgia Supreme Court.¹⁹

Throughout the pending litigation, Barrow alleged collusion and manipulation by the Georgia Supreme Court Justices.²⁰ In a motion before the Georgia Supreme Court, Barrow called for all the high court's justices to recuse themselves due to their relationship with their colleague, Justice Blackwell.²¹ Barrow cited to the Georgia Code of Judicial Conduct and asserted that the Justices' impartiality could reasonably be questioned if they did not recuse themselves.²²

Following this motion, five of the eight remaining Justices chose not to participate in this decision.²³ However, the three remaining Justices, Chief Justice Harold Melton, Presiding Justice David Nahmias, and Justice Sarah Warren denied the motion filed by Barrow and insisted there was no conflict of interest.²⁴ To fill the seats of the five recused

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Justices, the Clerk of the Georgia Supreme Court randomly selected five Superior Court judges from a pre-existing list to hear and decide this case.²⁵

In a 6-2 vote, the Georgia Supreme Court affirmed the trial court's ultimate decision that Secretary Raffensperger was not legally obligated to hold the election for Justice Blackwell's office.²⁶ But, not for the reasons provided by the trial court.²⁷ In this hotly divided case, the majority held that the Secretary of State could not be compelled by mandamus to conduct an election that would become legally nugatory, based on the inevitable vacancy that was to occur in Justice Blackwell's office.²⁸

III. Legal Background

Since the ratification of Georgia's current Constitution in 1983, judges have been chosen "in two different ways for terms of two different types."²⁹ The following analysis provides a general overview of Georgia's constitutional provisions, statutory law, and prior precedent pertaining to the election and appointment of Georgia Supreme Court Justices that led to the decision in Barrow v. Raffensperger that the exception now takes precedent over the rule.³⁰

A. The Rule: Justices are elected by the people for six-year terms

The rule that Justices of the Georgia Supreme Court are to be elected to terms of office have been guaranteed since 1896 and has been affirmed in subsequent Georgia Constitutions: 1945, 1976, and 1983.³¹ Article VI, Section I, Paragraph I states: "All Justices of the Supreme

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Court . . . shall be elected on a nonpartisan basis for a term of six years."³² To fulfill this constitutional provision, O.C.G.A. § 21-2-9(b)³³ administers a nonpartisan election that coincides with the "general election next preceding the expiration of the term of office."³⁴ The officer with the statutory duty of conducting this nonpartisan election is the Georgia Secretary of State.³⁵

From 1983 to 2012, the elections for Georgia Supreme Court Justices were held in conjunction with the general election in early November of even-numbered years, with qualifying held several months earlier.³⁶ In 2011, the Georgia legislature passed an amendment to O.C.G.A. § 21-2-138,³⁷ shifting the election for Justices to coincide now with the general primary election for other offices, typically held in the summer of even-numbered years.³⁸ This modification meant that Justices would now be elected to their future offices approximately six months before taking office and created a shorter timespan to campaign between the qualifying period and the actual election.³⁹

B. The Exception: The Governor's Power of Appointment to A Specialized Term

Consequently, not all Justices initially take office by election for a term of six years.⁴⁰ Paragraph III of Article VI, Section I provides

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"[v]acancies shall be filled by the Governor except as otherwise provided in the magistrate, probate and juvenile courts."⁴¹

In order to determine whether an appointment is necessary, Georgia case law mandates that first there must be an existing vacancy.⁴² O.C.G.A. § 45-5-1 provides a roadmap as to how a vacancy may occur.⁴³ Section (a) of O.C.G.A. § 45-5-1 lists the various methods for which offices "shall be vacated," including "[b]y resignation, when accepted."⁴⁴ The language of Section (b) provides that a Governor's appointment will not become effective until the office has actually become vacated.⁴⁵ By contrast, the determination as to the definition of a "vacancy," and the term of an appointed Justice has not been as clear.

1. What is a "vacancy" under Georgia law?

The Georgia Supreme Court in Clark v. Deal⁴⁶ recently defined "vacancy" under Article IV, Section I, Paragraph III of the Georgia Constitution.⁴⁷ It held that "the ordinary meaning of the term 'vacancy' is in essence, a public office without an incumbent."⁴⁸ The court reasoned that when the 1983 Constitution was ratified, Black's Law Dictionary defined "vacancy" in a similar manner.⁴⁹ It rationalized that this definition was analogous to prior Georgia precedent and legal secondary authorities.⁵⁰ Therefore, the supreme court in Clark affirmed the definition for "vacancy" under Paragraph III of Article IV, Section I, as a "public office without an incumbent."⁵¹

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2. What is NOT a Vacancy under Georgia law?

The Georgia Supreme Court has also clarified what does not fit within the definition of "vacancy." In 1937, the Georgia Supreme Court in Mitchell v. Pittman⁵² explained that:

[An] office is not vacant so long as it is supplied, in the manner provided by the [C]onstitution or law, with an incumbent who is legally qualified to exercise the powers and

...