Friday, July 03, 2020

U.S. District Court Grants Preliminary Injunction Forcing District Attorney Election In November

***Secretary Of State Told To Set Procedures For Election***

In a strongly worded decision on Thursday, U.S. District Court Judge Mark Cohen in Atlanta granted a preliminary injunction requiring Georgia Secretary of State Brad Raffensperger to hold an election for the District Attorney of the Western Judicial Circuit on Nov. 3.

Cohen ordered that representatives of Deborah Gonzalez and the four other plaintiffs meet with representatives of Georgia Gov. Brian Kemp and Raffensperger and “endeavor to present to the Court” within 14 days a consent order setting out the procedures for conducting the special election.

Cohen issued the preliminary injunction after finding that the plaintiffs “are substantially likely to succeed on the merits of their claim.”

He also ruled that “failure to conduct an election for the office of District Attorney for the Western Judicial Circuit violates the Georgia Constitution and thus the Fourteenth Amendment” to the U.S. Constitution. The Western Judicial Circuit is made up of Oconee and Clarke counties.

As a result, Cohen ruled, “Plaintiffs will suffer irreparable harm if the Court declined to enter a preliminary injunction due to the denial of their right to vote in the upcoming 2020 election.”

Cohen said that neither Kemp nor Raffensperger would be harmed by issuance of the injunction forcing the state to hold the election and that such an injunction also would “not be adverse to the public interest.”

Gonzalez, in a victory gathering held virtually on Zoom on Thursday evening, began her campaign by asking those gathered to help her get elected.

Brian Patterson, who, like Gonzalez, had been campaigning for the District Attorney race when Kemp effectively terminated the race in early May, said on Thursday he will launch his campaign again on Friday.

Possible Appeal

Atlanta Attorney Bruce P. Brown had filed the suit on May 18 on behalf of Gonzalez and four others, including Andrea Wellnitz of Oconee County, naming Kemp and Raffensperger as defendants.

Gonzalez on Zoom

The suit argued that a law passed by the Georgia General Assembly in 2018 “violates the United States Constitution and the Georgia Constitution” by allowing the governor to delay election of the District Attorney until 2022 by not making the appointment on or before May 3.

The plaintiffs sought relief by forcing Kemp and Raffensperger to hold the Nov. 3 special election.

Brown was present at the virtual meeting on Thursday evening, and he said he thought it was equally possible that the state would appeal the decision as not.

The state has 30 days to make that decision, he said, but in the meantime Raffensperger and Kemp have to come back to the court with plans for how to conduct the special election.

Included are specifying qualifying dates and deadlines for printing ballots, according to the ruling.

Already Won

Brown said the decision by the court “was a win already regardless of what happens in an appeal.”

Brown on Zoom

“There is no easy way for a judge get reversed on this,” he said. The court has already had a finding of facts, and they are now set, he said.

The next step, Brown said, is to get a permanent injunction.

Robin Joy Shahar, an Atlanta attorney who assisted Brown in the suit, said at the virtual gathering that the 2018 law violates “constitutional principles.”

“On the law, I knew we were right,” she said.

“It is not over,” Gonzalez, an Athens attorney, said at the end of the session. “We have have an election to win.”


Long-time District Attorney Ken Mauldin initially said he would retire when his term ended on Dec. 31 of this year, but he unexpectedly decided to retire on Feb. 19.

Gov. Kemp failed to appoint a District Attorney for the Western Judicial District by May 3, which, based on the 2018 state law, was the deadline for making the appointment and allowing for a special election on Nov. 3.

Both Gonzalez and then Chief Assistant District Attorney Brian Patterson had declared that they planned to seek the Democratic Party nomination for the District Attorney spot in the May primary.

Mauldin also is a Democrat, and no one had declared for the Republican Party nomination.

By not making an appointment by May 3, Kemp allowed himself the opportunity to appoint a district attorney who could serve until 2022 before having to face election.

Patterson, who lives in Oconee County, now is acting as District Attorney, following state-prescribed succession procedures when a district attorney steps down without a replacement.

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