The state of Georgia was supposed to hold an election Tuesday to fill a seat on the state Supreme Court. Justice Keith Blackwell, a Republican whose six-year term expires on the last day of this year, did not plan to run for reelection. The election, between former Democratic Rep. John Barrow and former Republican state lawmaker Beth Beskin, would determine who would fill Blackwell’s seat.
But then something weird happened: Georgia’s Republican Gov. Brian Kemp and the state’s Republican secretary of state, Brad Raffensperger, canceled Tuesday’s election. Instead, Kemp will appoint Blackwell’s successor, and that successor will serve for at least two years — ensuring the seat will remain in Republican hands.
On May 14, the state Supreme Court handed down a decision that effectively blessed this scheme to keep Blackwell’s seat in the GOP’s hands. The court’s decision in Barrow v. Raffensperger is unusual in many regards — among other things, six of the state’s regular Supreme Court justices recused from the case, and they were replaced by five lower court judges who sat temporarily on the state’s highest court. The court’s decision in Barrow turns upon poorly drafted language in the state constitution, which does suggest that Blackwell, Kemp, and Raffensperger’s scheme was legal.
The scheme, briefly explained
In late February, just a few days before the deadline for candidates to file to run to replace Justice Blackwell was about to expire, Blackwell sent a letter to Kemp announcing that he intends to resign his seat, effective November 18. That means that Blackwell will leave office a few weeks before his term was set to expire on December 31.
Shortly after receiving this letter, Kemp formally accepted Blackwell’s future resignation. The governor then informed Raffensperger, the state’s chief elections officer, that he intended to fill Blackwell’s seat by gubernatorial appointment. In response, Raffensperger canceled the election to fill Blackwell’s seat, which was scheduled for May 19.
Both Democratic candidate Barrow and Republican candidate Beskin filed lawsuits seeking to reinstate the election, but these pleas were rejected by the state Supreme Court in a 6-2 vote.
The court’s decision in Barrow turns on the tension between two provisions of the Georgia Constitution. The first provides that “all Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years,” and that the terms of these judges “shall begin the next January 1 after their election.” Because this language refers to “all Justices,” it suggests that an election must be held to fill Blackwell’s seat, and that whoever prevails in that election shall join the state Supreme Court on the first of January.
But a separate provision of the state constitution permits the governor to temporarily fill vacancies on the state Supreme Court, and it provides that “an appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person’s appointment.”
Thus, while the first provision suggests that an election must be held to fill Blackwell’s seat — with the winner taking office on January 1, 2021 — the second provision indicates that an appointed justice may serve much longer. When Blackwell resigns on November 18, the “next general election which is more than six months” after that date won’t occur until 2022.
So the second provision seems to suggest that an appointed justice may serve until January 1, 2023 — and longer, if that justice eventually wins the 2022 election. The new justice will also be able to run with all the advantages incumbency provides.
A majority of the state Supreme Court concluded that the second provision effectively trumps the first provision’s suggestion that the primary method of choosing Georgia Supreme Court justices is an election. “When an incumbent Justice vacates his or her office before the end of his or her term,” the court explained, “the incumbent’s unexpired term disappears with the incumbent, along with any hypothetical future terms associated with that incumbent.”
Kemp’s appointee, in other words, will not simply serve out the remaining few weeks in Blackwell’s term. They will serve those remaining few weeks plus an additional two years.
The court’s decision in Barrow will be very easy to game
As a practical matter, this decision is likely to prove very easy for retiring justices to game if they belong to the same political party as the incumbent governor. Indeed, under the court’s decision in Barrow, Blackwell likely could have announced that he would resign effective December 30 — just one day before his term would have expired — and Kemp still would have gained the power to name Blackwell’s replacement.
Indeed, Kemp could potentially even appoint Blackwell to fill the vacancy created by Blackwell’s early resignation. That would effectively give Blackwell an eight-year term, rather than a six-year term. And nothing would prevent Blackwell from running for election again in 2022.
The upshot of Barrow is likely to be that when a justice who belongs to the same party as the governor wishes to retire, they will submit a postdated resignation similar to the one Blackwell submitted to Kemp. That will effectively give that justice’s party an extra two years to hold on to the justice’s seat before the next election takes place.