High court: Special election for Georgia DA seat can proceed

ATHENS, Ga. - Georgia’s highest court has ruled that a special election for a district attorney’s office should appear on the November general election ballot.

The winner of the race for Athens-Clarke County district attorney will fill the seat vacated by the retirement of District Attorney Ken Mauldin in February. The unanimous opinion says a special election should go forward, rather than allowing Republican Gov. Brian Kemp to appoint a new prosecutor.

A 2018 law says that someone appointed to fill such a vacancy within six months of the next election can remain in the seat until the next statewide election. That would be in 2022 in this case. But Kemp hasn’t appointed anyone to fill the seat.

Deborah Gonzalez, a former Democratic state representative, tried in March to qualify to run for the seat. But Secretary of State Brad Raffensperger, a Republican, canceled the election to replace Mauldin, citing the 2018 law.

In May, once the election was within six months, Gonzalez filed a federal voting rights lawsuit against Kemp and Raffensperger, arguing that the 2018 law was unconstitutional. She also asked the judge to order a special election for the seat to be held on Nov. 3.

U.S. District Judge Mark Cohen in July determined the cancellation of the election was unconstitutional and said the election must go forward. The state appealed to the 11th U.S. Circuit Court of Appeals.

The 11th Circuit asked the Georgia Supreme Court to determine whether the 2018 law is at odds with the state Constitution.

Supreme Court Chief Justice Harold Melton ruled that the law is, indeed, unconstitutional to the extent that it allows a district attorney appointed by the governor to remain in office beyond the end of the unexpired four-year term of the previous district attorney without an election.

“(W)hen the Governor’s appointee fills a vacancy in an office of district attorney, he or she steps only into the remainder of the unexpired fixed four-year term for the office,” the opinion says. “Because the four-year term runs with the office, and not the individual in the office, the appointee would not begin a new term by being appointed, but would serve out the remainder of the existing term as the new ‘incumbent’ until his or her successor (who could be the incumbent) is elected at the general election immediately preceding the expiration of that existing term.”

Attorney Bruce Brown, who represents Gonzalez, applauded the ruling.

“Candidates and voters won today,” he told the Daily Report. “Particularly in today’s environment and with criminal justice reform hopefully on the horizon, it is even more important that district attorneys are accountable to their local communities and not selected by party bosses in Atlanta.”

“The election is under way,” Brown said. “Deborah Gonzalez is on the ballot. The election will continue.”

Gonzalez faces acting District Attorney Brian Patterson, also a Democrat, and nonpartisan candidate James Chafin in the special election, according to the secretary of state’s website.