3/29/18 - Atlanta - Rep. Beth Beskin, R - Atlanta, gets congratulated by Rep. Rich Golick, R - Smyrna, after the passage of HB 820, related to property assessments for Atlanta residents. Thursday was the 40th and final day of the 2018 General Assembly. BOB ANDRES /BANDRES@AJC.COM
Photo: Bob Andres/bandres@ajc.com
Photo: Bob Andres/bandres@ajc.com

Opinion: In judicial races, it’s now vital that your rival doesn’t quit in a huff

Beth Beskin, an Atlanta attorney and former GOP state lawmaker, is running against incumbent Charlie Bethel for a seat on the Georgia Supreme Court. The election is June 9.

Several days ago, she issued a most peculiar challenge to her rival. Beskin wanted him to promise not to quit his job – once she beats him.

“This is an absurd stunt,” said a spokeswoman for Bethel, who was appointed to the high court in 2018 and now is seeking election to a full six-year term.

Even so, the campaign aide promised that Bethel would not resign in a huff, should the occasion arise – and added that her candidate would also “do his best not to die” before midnight on Dec. 31, when his current term expires.

A stunt it may have been. It’s hard to attract attention in any judicial race, especially during a pandemic. Yet Beskin’s challenge was anything but absurd.

The Georgia Supreme Court had made sure of that only a day earlier, when it offered up a blueprint for the vast expansion of a governor’s power to shape the state’s legal system — and to trash the ballots you cast in judicial contests. Your vote in other contests could be affected, too.

“Under this ruling, I could win my election against Justice Bethel on June 9, and that result could be completely erased if he then chose to resign and allow Governor Kemp to appoint his successor,” Beskin told a reporter.

We have written before about the Case of the Vanished Supreme Court Contest. On Feb. 25, state Supreme Court Justice Keith Blackwell, whose term expires at the end of this year, submitted a letter of resignation to Gov. Brian Kemp, effective Nov. 18 – 43 days before he leaves office.

The governor accepted the resignation, also in writing, the same day. Three days later, their agreement became public.

The next week, a pair of political veterans showed up at the state Capitol to sign up for Blackwell’s seat — Beskin, who had represented a portion of Buckhead, and former Georgia congressman John Barrow, a Democrat.

Both were turned away by Secretary of State Brad Raffensperger. The seat would be filled through an appointment by the governor, the two were informed. And the election for that seat would be moved to 2022.

Beskin and Barrow filed separate lawsuits in Fulton County Superior Court, demanding that the Supreme Court contest be added to the ballot. “If [a seat] is not vacant before the election, I think the election needs to happen,” Beskin told me Monday. (When she entered the race for Bethel’s seat, she reserved the right to switch to the Blackwell contest, if that race were revived.)

Fair Fight Action, the voting rights group founded by Stacey Abrams, plus the Georgia NAACP and the Urban League of Greater Atlanta weighed in on Barrow’s behalf with an amicus brief.

The state Constitution mandates that judges, including those on the Georgia Supreme Court, “shall” be elected. In practice, few judges are elected without being appointed. The resulting racial disparity is obvious. From 2003 through 2018, Govs. Sonny Perdue and Nathan Deal made 198 judicial appointments. Only 6.33% of Perdue’s appointments were racial or ethnic minorities. Deal’s amounted to 16.81%.

Nearly 40% of Georgia’s population are people of color.

Two weeks ago, the legal protests by Barrow and Beskin were dismissed by the Georgia Supreme Court. Six of nine justices recused themselves, including Bethel. Five were replaced by Superior Court judges.

Mar. 14, 2016 - Atlanta - Committee Chairman Charlie Bethel listens as Rep. Shaw Blackmon, R - Bonaire, presents HB 838. The Senate Insurance and Labor committee took no action on legislation that was the focus of an Atlanta Journal-Constitution investigation into conflicts of interests at the Capitol. The measure - which would set a minimum compensation for insurance agents when they sell health policies - is the brainchild of House Rules Chairman John Meadows. Health insurance companies have been afraid to speak out against it, but Monday the committee lead by Senator Charlie Bethel took no action after multiple members of the committee recused themselves. BOB ANDRES / BANDRES@AJC.COM
Photo: Bob Andres/bandres@ajc.com

Because the agreement between Blackwell and Kemp amounted to a non-rescindable contract, the future vacancy is to be treated as already existing, the majority ruled. And so the appointment goes to the governor.

Justice David Nahmias wrote the opinion, which also offered this hypothetical: Suppose Justice Blackwell had not written a letter of resignation, and voters had selected a replacement for him on June 9.

If Blackwell waited until Nov. 18 – or any day prior to the end of his term – the governor would still be given the seat to fill. “Whoever won the…election would have won nothing of legal value, as he or she would have no term of office to fill,” the justices ruled.

In other words, your vote would be trashed. It would have no legal value.

In a two-justice dissent, Ocmulgee Circuit Superior Court Judge Brenda Trammell noted the conflict built into the state Constitution, between the governor’s power of appointment and the voters’ right to elect their judges.

“For the first time since the enactment of this constitutional provision, the majority is ruling that the appointment power of the Governor trumps the voting power of the public,” Trammell wrote. “Let me be clear. This ruling means that even were the election to go forward and a winner be declared, the appointee defeats the electee.”

Candidates for judicial office have been put on notice. “Everybody running for office should be rightly worried that the election that they’re investing so much time and effort and treasure in can evaporate if the incumbent resigns,” Beskin said.

But more than judicial races may be affected by the ruling logic of the state Supreme Court. In 2018, the Legislature passed a measure that subjects district attorneys, who are elected on a partisan basis, to much the same replacement process as non-partisan judges.

This winter, the district attorney for the judicial circuit that covers Athens-Clarke County and Oconee County decided to resign effective Feb. 29 rather than run for re-election. Had the governor immediately filled that vacancy, the contest would likely have concluded on Nov. 3. But now, if a vacant district attorney slot is filled by the governor less than six months before an election, the election disappears – and is moved forward two years.

Governor Kemp sat on the appointment. As of May 3, he still had not filled the Athens spot, and so the election disappeared. (A Democratic candidate, Deborah Gonzalez, has filed suit in federal court.)

Last week, Kemp filled a vacant Superior Court seat in the Alcovy Circuit, which covers Newton and Walton counties. The governor appointed District Attorney Layla Zon, a graduate of Liberty University and the Georgia State University College of Law.

Zon had been facing re-election. A Republican, she had both primary and Democratic opposition. Walton County went strong for Donald Trump in 2016, but Hillary Clinton won Newton County. A Democrat has a fighting chance in November.

But when we inquired whether that race for district attorney would disappear, Newton County election director Angela Mantle advised us to call the secretary of state’s office. We did so, and are still waiting for an answer.

But wait, there’s more. Consider Fulton County District Attorney Paul Howard, who is facing re-election — and quite a number of accusations.

Three past or present female employees have sued Howard, alleging harassment or discrimination. The GBI is investigating his use of a nonprofit to funnel at least $140,000 in city of Atlanta funds to supplement his salary.

The Democratic district attorney has not been charged with any crime and has denied any and all wrongdoing, but let’s suppose that he leaves office before the Nov. 3 election – whether voluntarily or not. If he does, the governor could appoint his replacement, perhaps a Republican, and the election would vanish until 2022.

“I’ve been looking at that issue. Would the governor take that seat and have it for two years?” wondered Fani Willis, Howard’s former chief deputy, who is running against him. She’s beating her old boss in fundraising, and has collected endorsements from a long list of current Democratic office-holders.

The Fulton County district attorney, because he has jurisdiction over doings in the state Capitol and so many corporate headquarters, is probably the second most powerful law enforcement officer in the entire state — second only to the attorney general of Georgia, Willis posited in an interview.

“The governor has definitely made some diverse appointments, more so than other Republican governors. But he has not done it in Fulton County,” Willis said. “And Fulton County, quite frankly, is the most important county.”

It is an odd thing to write of elections as if they were — or might soon be — missing children on milk cartons. But that appears to be where we’re headed.

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About the Author

Jim Galloway
Jim Galloway
Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.
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