ATLANTA (AP) — A would-be candidate for a seat on Georgia's highest court on Wednesday asked the state's lower appeals court to step in after a judge this week said the governor had the right to fill the position even though a judge who's resigning won't leave until November.
Georgia Supreme Court Justice Keith Blackwell, whose six-year term ends in December, told Gov. Brian Kemp last month that he planned to resign but would remain on the bench until Nov. 18. Kemp's office then told Secretary of State Brad Raffensperger that the Republican governor intended to fill the seat by appointment, and Raffensperger canceled the scheduled May 19 election for the position.
John Barrow, a former Democratic congressman from Athens, and former Republican state lawmaker Beth Beskin of Atlanta had both planned to challenge Blackwell. They filed separate lawsuits in Fulton County Superior Court saying the election had been illegally canceled and asking a judge to order Raffensperger to put it back on the calendar and allow candidates to qualify.
Judge Emily Richardson on Monday ruled that according to the Georgia Constitution and state law, Blackwell's seat became vacant Feb. 26, when Kemp signed a letter accepting the justice's resignation. Raffensperger was no longer required to hold an election for the seat once the governor signaled his intent to appoint someone to fill it, she wrote.
Even though the effective date of Blackwell’s resignation is after the May election, it is still within his current term, which ends Dec. 31, meaning Kemp has the authority under the state Constitution to fill the vacancy by appointment, Richardson wrote.
Barrow on Wednesday filed an emergency request with the Georgia Court of Appeals, arguing that Richardson was wrong and asking the court to take up the case. Beskin's lawyer, Cary Ichter, said in an email that they intend to do the same on Thursday.
“The Constitution clearly requires a vacancy as a condition precedent to the Governor’s power to appoint,” Barrow's lawyers wrote. They added that the state Supreme Court has previously ruled that “a vacancy occurs when the office is unoccupied and when there is no incumbent lawfully qualified to exercise the powers of the office.”
Since Blackwell remains in office, the post is not vacant, the filing says. Therefore, the governor has no power to appoint his replacement, and candidates should be allowed to qualify to challenge him, Barrow's lawyers argue.
A spokeswoman for the state attorney general's office, which represents Raffensperger, declined to comment.
After she was denied the opportunity to qualify to run for Blackwell's seat, Beskin qualified to challenge incumbent Georgia Supreme Court Justice Charlie Bethel in May. But she has argued that if an election for Blackwell's seat was put back on the calendar, she would withdraw herself as a candidate for Bethel's seat and qualify to run for Blackwell's.
Blackwell, 44, had served two years on the Georgia Court of Appeals before then-Gov. Nathan Deal in 2012 tapped him to join the state Supreme Court. Blackwell appeared on a list of potential U.S. Supreme Court nominees that President Donald Trump made public during his 2016 campaign.
Blackwell said in his resignation letter to Kemp that he had decided that returning to private practice would be in the best interest of his family.