Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Wednesday, May 27, 2020

Cancellation of Georgia Supreme Court Election Raises Concerns about the Role of Interim Judicial Appointments

Georgia’s Supreme Court recently decided whether the next member of that court would be elected by the state’s people or appointed by the governor. With six justices recused (and temporarily replaced by five lower court judges), Barrow v. Raffensperger let stand the Georgia Secretary of State’s cancellation of an election to fill resigning Justice Blackwell’s seat, thus allowing Gov. Brian Kemp (R) to appoint Blackwell’s successor.

Georgia’s Constitution provides that “All Justices of the Supreme Court ... shall be elected on a nonpartisan basis for a term of six years. The terms of all judges thus elected shall begin the next January 1 after their election.” (Art. 6, § 7, Par. 1). “Vacancies shall be filled by appointment of the Governor,” (Art. 6, § 7, Par. 3) and “An appointee to an elective office shall serve until a successor is duly selected and qualified and until January 1 of the year following the next general election which is more than six months after such person's appointment.” (Art. 6, § 7, Par. 4)

Justice Blackwell’s current term is set to end Dec. 31, 2020, and a May 19, 2020, election was scheduled to fill the next standard six-year term for his office, which would begin on Jan. 1, 2021. However, on Feb. 26, 2020, Justice Blackwell submitted a letter to Governor Kemp resigning from his office effective Nov. 18, 2020. The Governor accepted Justice Blackwell’s resignation and announced that he would appoint a successor to the office. The Georgia Secretary of State canceled the May 19 election for the next term of Justice Blackwell’s office on the ground that Blackwell’s resignation, once it was accepted, created a vacancy that the Governor could fill by appointment, and thus no election was legally required. The Georgia Supreme Court agreed in Barrow v. Raffensperger.

However, a dissent argued the secretary of state cannot cancel an election “based on an expected or highly likely vacancy in the office” and progressive Ian Millhiser objected to this “scheme to keep Blackwell’s seat in the GOP’s hands.” Millhiser predicted in Vox that “The upshot of Barrow is likely to be that when a justice who belongs to the same party as the governor wishes to retire, they will submit a post-dated resignation similar to the one Blackwell submitted to Kemp. That will effectively give that justice’s party an extra two years to hold on to the justice’s seat before the next election takes place.”

Interesting to note that Millhiser’s characterization of the judicial seat as “in the GOP’s hands” refers to a state with ostensibly non-partisan elections. And Millhiser’s reference to “a justice who belongs to the same party as the governor” conflicts with the notion that sitting justices do not identify with a political party or that using non-partisan judicial elections, as Georgia does, can keep partisan politics from the bench.

Thanks to Arrian Ebrahimi for research assistance.

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