The decision by a three-judge panel, published a week away from Election Day, affirms a preliminary injunction and effectively stops Georgia Gov. Brian Kemp, a Republican, from appointing a district attorney for the Western Judicial Circuit who would remain in the position until 2022.
Kemp and Secretary of State Brad Raffensperger had said a state statute allowed them to follow through with the plan after Ken Mauldin resigned from the post in February. However, in response to a brewing legal battle involving a former legislator trying to qualify for the race to replace Mauldin, the panel in August asked the Georgia Supreme Court to address whether postponing a district attorney election for two years violated the state's constitution.
The state's high court said it did, and the federal courts are "bound by [its] decisions ... on questions of Georgia law," the Eleventh Circuit wrote in its decision.
Bruce Brown, attorney for the plaintiffs, praised the decision on Tuesday and told Law360 that district attorneys must be "held accountable to people in the community" on issues including the police and criminal justice.
"Those are issues where people in the local community should have control over a public officer whose job it is to make important decisions," Brown said.
U.S. District Judge Mark H. Cohen in July first granted a preliminary injunction and ordered a Nov. 3 district attorney election after finding that former Georgia state Rep. Deborah Gonzalez's lawsuit against Kemp and Raffensperger was likely to succeed.
Gonzalez, a Democrat, sued the officials in May after unsuccessfully attempting to enter the district attorney race. Raffensperger did not permit her to qualify for the race, saying the election had been postponed to 2022 and citing a state law allowing election delays if a vacancy is not filled by governor appointment at least six months from election.
Gonzalez, who filed the complaint along with four other district voters, said the policy denied her right to candidacy and right to vote while also representing a violation of the First Amendment and her rights to due process. She also alleged Kemp had plenty of time to appoint a replacement who would still be subject to a November election.
The state quickly appealed Judge Cohen's decision, arguing, among other things, that it must ensure the valid enforcement of the statute in question and that it's part of its efforts to avoid "chaos and uncertainty" in election procedures.
"Given the Supreme Court of Georgia's answer to the certified question, we conclude that the preliminary injunction does not interfere with ... the enforcement of valid laws — because [the statute] as applied here, is invalid," the Eleventh Circuit said. "On the other side of the ledger, Gonzalez identifies a significant interest in favor of the preliminary injunction — her right to vote."
Gonzalez qualified for the race in August and is now among three candidates campaigning for district attorney. The election has appeared on ballots since Cohen's order in July calling for it to proceed, Brown said.
"It took a great deal of courage for Gonzalez, who was just trying to run for district attorney, to take on the state establishment after [it] canceled the election," Brown said. "This is a person running for office taking on the state. You need people who are willing to do that, to keep everyone in line."
The Georgia Attorney General's Office did not immediately return requests for comment.
Judges Beverly B. Martin, Jill A. Pryor and Elizabeth L. Branch sat on the panel for the Eleventh Circuit.
Gonzalez and the voters are represented by Bruce P. Brown of Bruce P. Brown Law LLC.
Kemp and Raffensperger are represented by Christopher M. Carr, Bryan K. Webb, Elizabeth T. Young and Miles C. Skedsvold of the Georgia Attorney General's Office.
The case is Deborah Gonzalez et al. v. Governor of the State of Georgia et al., case number 20-12649, in the U.S. Court of Appeals for the Eleventh Circuit.
--Additional reporting by Rosie Manins. Editing by Brian Baresch.
Update: This story has been updated to include comments from the plaintiffs' attorney.
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