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Western Judicial Circuit district attorney candidate Deborah Gonzalez and four other plaintiffs sued Gov. Brian Kemp and Secretary of State Brad Raffensperger for canceling the DA election until 2022. (Photo Illustration/Julian Alexander)

The Georgia Supreme Court listened to oral arguments on Tuesday morning to determine if residents in the Western Judicial Circuit, which encompasses Athens-Clarke and Oconee County, will vote for their next district attorney this November or in November 2022. 

District attorney candidate Deborah Gonzalez and four other plaintiffs sued Gov. Brian Kemp and Secretary of State Brad Raffensperger for canceling the election until 2022, calling it an act of voter suppression. 

In February, former DA Ken Maudlin’s resignation triggered a 2018 Georgia law which specified if Kemp filled Mauldin’s vacancy with an appointment after May 3 — six months before election day — his appointee would serve as the next district attorney until the winner of the 2022 DA election was decided. Kemp’s appointee, not yet announced, could run in the 2022 election.

Georgia’s Supreme Court listened to attorneys from both sides argue whether the 2018 law is constitutional. Georgia’s constitution states district attorneys shall be elected for four-year terms and the successors of present and subsequent incumbent district attorneys shall be elected by the electors of their respective circuits at the general election, held immediately preceding the expiration of their respective terms.

Attorney Elizabeth Young, representing Kemp and Raffensperger, argued the law is constitutional, saying the constitution doesn’t outline how long appointees filling a vacancy should serve, nor does it specify when the election to choose the appointee’s successor should take place. Young also cited the governor’s power to appoint vacancies, which is outlined in the Georgia constitution, as justification for the statue.

“The provision set forth … does not conflict with the constitution but works in tandem with it in order to create a practical balance between democracy and stability that the state has decided it's appropriate to balance the two ways of bringing district attorneys into office through the election, or by appointment,” Young said.

Several of the supreme court justices questioned her justification of the statute based on how the statute would affect state elections. 

“The statute that’s at issue today effectively canceled one election,” Justice Nels Peterson said. “How many elections have to be canceled before the constitution has been violated, where do you get that number from?”

On July 2, U.S. District Judge Mark Cohen granted Gonzalez’s motion for preliminary injunction and ordered Raffensperger to take all steps necessary to conduct the election for the office of District Attorney for the Western Judicial Circuit. However, Raffensperger and Kemp’s attorney’s filed an appeal, leading to an expedited Georgia supreme court hearing.

Assistant Western Judicial Circuit District Attorney Brian Patterson, who is also a candidate in the race, is serving as interim district attorney until Kemp makes an appointment to fill the vacancy. On Feb. 11, The State Bar of Georgia sent an email to the bar members of the Western Judicial Circuit, saying Kemp is accepting applications to fill the seat. 

Attorney Bruce Brown, representing Gonzalez, argued the constitution outlines the need for district attorney races every four years, and appointed successor’s term limit should be confined to their predecessor’s remaining term limit.

Presiding Justice David Nahmias criticized Brown’s interpretation, saying it does not hold up to textual analysis as the constitution does not explicitly specify the term limits for appointed successors.

The court is expected to announce its opinion before Election Day. Patterson and Gonzalez are actively campaigning despite the uncertainty of a vote on Nov. 3.

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