The case of the disappearing race for Douglas County district attorney

District Attorney Brian Fortner (center) outside a Douglas County courtroom in 2017. HENRY TAYLOR / HENRY.TAYLOR@AJC.COM

Credit: Henry P. Taylor

Credit: Henry P. Taylor

District Attorney Brian Fortner (center) outside a Douglas County courtroom in 2017. HENRY TAYLOR / HENRY.TAYLOR@AJC.COM

In the name of good government, the November 2018 election for district attorney in Douglas County may be about to vanish.

Voters probably won’t get their say in the matter until late 2020. Until then, they’ll likely have to live with whomever Gov. Nathan Deal names to the post in the next few weeks.

This is no small thing in a county that’s transitioning from Republican to Democrat, from majority white to something else.

Our tale begins on March 2, when the governor appointed the incumbent Douglas County district attorney, the much-admired Brian Fortner, to a vacant state court judgeship.

It was Fortner, a Republican, who prosecuted a group of white racists in 2015 for terrorizing African-Americans in the county — hurling insults, brandishing firearms and waving the Confederate battle flag — just a few weeks after nine black congregants were murdered in a Charleston, S.C., church by a white gunman.

Fortner would have been up for re-election in November. With the incumbent gone, two experienced prosecutors immediately signed up to replace him. Ryan Leonard, currently the chief assistant district attorney for Douglas County, is a Republican and white. Dalia Racine, an assistant district attorney in DeKalb County, is a Democrat and black.

Racine has run before. In the November 2014 race for district attorney, she finished just 455 votes behind Fortner, out of 37,563 ballots cast. Whether she can improve on that performance this November is likely to remain a mystery.

Allow me to introduce you to House Bill 907, a little ol' bill authored by state Rep. Barry Fleming, R-Harlem. The measure "does one thing," he told his House colleagues in February, and that was to treat district attorneys in the same manner as judges who are appointed by the governor to unexpired terms.

This is mostly true. Except that elections for district attorneys are partisan. Most judicial contests are not. The office of district attorney is held by a single individual. Most judicial benches are peopled by multiple judges.

To describe the scrutiny that HB 907 received as cursory would be overly generous. Fleming’s presentation to the Senate Judiciary Committee lasted all of 90 seconds. At no point was Fleming pressed to disclose this wrinkle: If a governor fills a vacant district attorney position within six months of a term’s end, the impending vote would be delayed until the following general election — “even if such period of time extends beyond the unexpired term of the prior district attorney,” according to the bill.

For instance, a district attorney appointed by the governor after May 7 will not have to stand for re-election until November 2020. And that election will be for a four-year term.

HB 907 passed the House on a vote of 115 to 56, with most Democrats opposing. But Democrats in the Senate weren’t alerted to the bill’s contents, and it passed that chamber on a vote of 49 to 2.

Governor Deal quickly signed the measure into law on March 22. A spokeswoman for the governor explained that, as with judicial elections, a delay in balloting for appointed district attorneys allows new prosecutors to avoid the immediate maelstrom of electoral politics. Solicitors general are already treated this way, she said.

Very few in Douglas County had heard about HB 907 until last week, when the governor sent word that he was accepting applications for the district attorney position. The submission deadline is next Monday.

“People are afraid they won’t be able to vote in the election,” said state Rep. Kimberly Alexander, D-Hiram. “Why jump into this race for Douglas County district attorney? The only thing I can think of is the demographics are changing.”

Even if Deal appoints Racine, the Democrat in the current race, Alexander said she would still be dissatisfied. “I don’t care if it’s her or him,” she said. “The voters have a right to pick who they want to put in there. And this is something that takes away from that.”

Curiously, the most immediate venue for debating the wisdom of HB 907 is likely to be a Republican one.

As mentioned above, the measure generated only two “no” votes in the Senate. Both were cast by Republicans – Michael Williams of Cumming, a candidate for governor, and Josh McKoon of Columbus, a candidate for secretary of state.

McKoon emphasized that he wasn’t trying to pick a fight with Deal over HB 907. “I philosophically believe that the office of governor in Georgia is too powerful. And one of the things that I think have gotten way out of hand are these appointments,” the senator said.

“District attorneys have tremendous powers in their community — they decide whether to seek the death penalty in criminal cases,” McKoon said. “It’s important that those folks are subject to the political process and have to face voters on a regular basis.”

One of McKoon’s rivals in the GOP primary is state Rep. Buzz Brockway of Lawrenceville. His was the third signature on HB 907, something Brockway now says he regrets. “I had no clue there was a district attorney’s race that was imminent,” Brockway said. “I certainly didn’t know what was going on in Douglas County – this is not what I had in mind.”

But let us assume that, in the coming weeks, Governor Deal appoints a Republican as Douglas County district attorney. There would still be a bright side for Democrats.

The electoral rhythm of a major county office will have been shifted. Most local and state officials prefer to face voters in mid-term contests, to avoid being swept up in the avalanches that are presidential elections. This office would no longer have that insulation.

And Douglas County went for Hillary Clinton in 2016.