Gov. Brian Kemp and Secretary of State Brad Raffensperger are trying to reverse a federal district court's order for the state to hold a Nov. 3 election for a district attorney position vacated in February. The state wanted instead to appoint someone to the role and have a special election for the seat in two years, but a qualified candidate and several voter constituents said that is at odds with Georgia's constitutional requirement for district attorneys to be elected every four years.
Elizabeth T. Young of the Georgia attorney general's office, one of the state's lawyers, said the governor can constitutionally delay through appointment planned elections under a 2018 state law that allows this when an election for a position falls within six months of it being vacated.
"The statutory language, when properly construed, is not in conflict either with the provision for election of district attorneys or with any other provision of the Georgia constitution," Young said. "It works in tandem with the constitution."
But Georgia Supreme Court Justices challenged the state's argument Tuesday, asking for evidence that the four-year term limit of district attorneys within Georgia's constitution is either flexible or doesn't take precedence over state law.
"How many elections have to be canceled before the constitution has been violated, and where do you get that number from?" Justice Nels S.D. Peterson asked Young.
Young said that was not directly addressed by the law but the intent of those drafting the constitution was to reserve to the General Assembly the power to determine the timing of appointments of office "the exact way they've done it here." Young said in this case the election was not canceled, but its date was merely changed.
But the plaintiffs contend it would be wrong for Kemp to fill a district attorney's vacated term for two years longer than the original term.
Presiding Justice David E. Nahmias asked Young if anyone in Georgia had been appointed to serve longer than the term of the person who was elected to the role and vacated it, to which she responded, "Not to my knowledge."
The dispute stemmed from an attempt in early March by former Georgia state Rep. Deborah Gonzalez, a Democrat, to qualify as a candidate for the Western Judicial Circuit district attorney position vacated by Ken Mauldin, who resigned in late February. Mauldin's term ended this year and the seat was set for a Nov. 3 election, but Gonzalez was told Raffensperger had moved the election to November 2022 because the seat was vacated.
Gonzalez and four district voters sued Raffensperger and Kemp in May after no appointment to the position had been made, arguing that the delay was unnecessary and denied Gonzalez her right to candidacy as well as voters' rights to elect a district attorney every four years. They also claimed their First and Fourteenth Amendment rights to due process and free speech and association under the U.S. Constitution were violated.
In early July, U.S. District Judge Mark H. Cohen ruled in the plaintiffs' favor, ordering the state to go ahead with a Nov. 3 election to fill the seat. The state appealed to the Eleventh Circuit, which certified in August the question for the Supreme Court of whether the 2018 law was in conflict with Georgia's constitution.
Bruce P. Brown of Bruce P. Brown Law LLC, representing Gonzalez and the voters, said the constitution demands district attorneys are elected to four-year terms and nothing longer. He said the language of the constitution only makes sense if read in that way.
Brown said Gonzalez and two others had qualified for the Nov. 3 district attorney election, which should not be delayed because Kemp had between February and May to make an appointment in time for the election to still be held.
Kemp still had not appointed a replacement as of Tuesday.
Young said the state was ready to hold the election on Nov. 3, under the district court's order, if necessary. She asked the Supreme Court to rule quickly, as the case still has to go back to the Eleventh Circuit and the district court.
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, Russell D. Willard, Andrew A. Pinson and Miles C. Skedsvold of the Georgia attorney general's office.
The case is Kemp et al. v. Gonzalez et al., case number S21Q0068, in the Georgia Supreme Court.
--Editing by Stephen Berg.
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