Gov. Brian Kemp will appoint a Republican to Georgia's Supreme Court after GOP cancels election

Kemp's move will allow the GOP to retain a court majority for two more years after Tuesday's election was scrapped

By Igor Derysh

Senior News Editor

Published May 19, 2020 6:03PM (EDT)

Brian Kemp (AP/Getty/Salon)
Brian Kemp (AP/Getty/Salon)

Georgia Gov. Brian Kemp will appoint a fellow Republican to the state Supreme Court after his secretary of state canceled Tuesday's election to select a replacement for a retiring justice.

Justice Keith Blackwell, a Republican whose term expires at the end of the year, announced his retirement in February, and the state was supposed to hold an election on Tuesday to select his replacement. Because Blackwell said he would step down shortly before his term expires, Kemp announced plans to appoint a replacement instead.

Georgia Secretary of State Josh Raffensperger, a fellow Republican, decided to cancel Tuesday's election even though it was unclear how Kemp had the power to appoint someone to serve on the court beyond the end of Blackwell's original six-year term.

The constitutionally dubious move drew lawsuits from Democratic candidate John Barrow, a former member of U.S. House of Representatives, and Republican candidate Beth Beskin, a state lawmaker.

The lawsuits went to the state Supreme Court. Six of the court's regular justices recused themselves from the case and were replaced with five lower court judges, who heard the case in their stead.

The unusual court panel on Friday ruled 6-2 in favor in Kemp's favor, allowing the governor to appoint a replacement who would serve on the court until the 2022 election, giving Republicans control of the court for an additional two years.

The decision turned on "poorly drafted language in the state constitution," Vox reported.

The state constitution says 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 their terms "shall begin the next January 1 after their election," suggesting that an election must be held to replace Blackwell.

But a separate provision in the constitution allowing the governor to temporarily fill Supreme Court vacancies says "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."

Since Blackwell is stepping down in November, the next general election is not until 2022. The Supreme Court panel ruled that the second provision effectively overruled the first.

"When an incumbent justice vacates his or her office before the end of his or her term," the majority said, "the incumbent's unexpired term disappears with the incumbent, along with any hypothetical future terms associated with that incumbent."

Vox's Ian Millhiser noted that the decision set a precedent that is "likely to prove very easy for retiring justices to game," allowing governors of their party to appoint their successors if they step down ahead of the official end of their term.

Superior Court Judge Brenda Trammel, who heard the case, issued a dissenting opinion criticizing the decision.

"Because I feel that this denies the people the right to elect their justice as provided by the constitution," she wrote, "I cannot agree."

Barrow criticized the justices who did not recuse themselves from a case involving their colleague.

"It's clear that these justices had an interest in deciding this case, and it's not hard to see where their interests lay," he said. "We'll continue to see these justices blaming the voters for their bad decisions — until we replace them."

Attorney Wade Tomlinson, who represented Barrow, told Newsweek that the decision created a dangerous precedent. A sitting justice who doesn't run for re-election but does not like their elected successor could technically resign to void the election results.

"This gives an awful lot of opportunity to manipulate the system," he said, "to take away the right to vote, and in some circumstances, nullify a vote that actually occurred."

Kemp has repeatedly bent the Georgia political system to his will. He continued to serve as Georgia's secretary of state as he campaigned for governor, effectively overseeing his own election. During the campaign, Kemp blocked tens of thousands of voter registration applications in his capacity as secretary of state, arguing that they had violated the state's "exact match" law, which requires information to be identical to that on file with the state's Department of Driver Services and the Social Security Administration. An Associated Press analysis later found that 70% of the voters impacted by the move were black, a population which overwhelmingly tends to vote Democratic.

Kemp also purged about 1.4 million people from the voter rolls and shuttered hundreds of polling sites. Days before the election, he baselessly accused the state Democratic Party of trying to hack the state's voter registration system.

Kemp eventually eked out a win over Democratic rival Stacey Abrams by about 55,000 votes.

The Appeal's Jay Willis argued that the Supreme Court move was just the latest example of Kemp's "sham democracy."

"Time and again, Kemp and the Republican Party have made clear that they view free elections not as legitimate checks on their job performance, but as tiresome obstacles to the Republican Party's accumulation of power," he wrote. "The simplest method of keeping power, it turns out, is building a system in which it is never meaningfully at risk."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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