Barrow and Beskin are appealing an order by Fulton County Superior Court Judge Emily Richardson, who ruled that Blackwell's seat officially became vacant when Gov. Brian Kemp accepted Blackwell's resignation. Per Richardson's decision, an election is unnecessary because Kemp gets to appoint Blackwell's successor.
In Monday's order, Chief Justice Harold Melton and Justices David Nahmias and Sarah Warren denied a request filed by Barrow last week that they recuse themselves because of possible conflicts of interest. The three "carefully considered the motion to recuse him or her," the court said in an order, without further explanation.
In a motion last week, Barrow’s lawyers said the seven justices besides Blackwell should disqualify themselves from a case involving their colleague. With such a relationship, the justices’ impartiality could reasonably be questioned, the motion said. It also disclosed that Buddy Darden, one of the lawyers representing Barrow, is an honorary co-chair of Warren’s election campaign.
Lester Tate, one of Barrow’s lawyers, said he was shocked that Melton, Nahmias and Warren did not disqualify themselves and called their decisions “inconsistent with principles of openness and impartiality.”
The court asked the parties a number of questions in its order issued Monday. One concerned the time crunch requiring a ruling before the May 19 elections. For example, could the election be moved to coincide with the July election or the November election? the court asked.
The court noted that five Superior Court judges were randomly selected as replacements for the justices who recused: Scott Ballard of the Griffin Judicial Circuit, Brenda Trammell of the Ocmulgee circuit, Richard Cowart of the Southern circuit, Sarah Wall of the Oconee circuit, and Timothy Walmsley of the Eastern circuit.
The state high court normally has nine justices, but the governor has yet to appoint a successor to Robert Benham, who retired March 1. If the appointment is made while the election case is still pending, the new justice can participate in the appeals brought by Barrow and Beskin, unless that justice also decides to recuse, the order said.