Kemp v. GonzalezAnnotate this Case
The federal Eleventh Circuit Court of Appeals certified a question of law to the Georgia Supreme Court. In it, the federal appellate court asked whether OCGA section 45-5-3.2 conflicted with the Georgia Constitution, Article VI, Section VII, Paragraph I(a) or any other provision of the state constitution. The question arose over Deborah Gonzalez's attempt to qualify for the November 3, 2020 general election for the office of district attorney for the Western Judicial Circuit after Ken Mauldin resigned from the office effective February 29. The Georgia Secretary of State determined that Gonzalez could not qualify for the November 2020 election for district attorney because, under OCGA 45-5-3.2 (a), there would not be an election for that position until November 2022 – the state-wide general election immediately prior to the expiration of the Governor’s future appointee’s term. Though the vacancy began more than six months before the scheduled November 2020 election, the Governor did not make an appointment in time to maintain that scheduled election pursuant to the provisions of the statute. In May 2020, Gonzalez and four other registered voters sued the Governor and the Secretary of State at the federal District Court for the Northern District of Georgia. Gonzalez alleged that OCGA 45-5-3.2 (a) violated Paragraph I (a) and moved for a preliminary injunction to mandate the Governor move forward with the November 2020 election for district attorney. The district court granted the request, finding Gonzalez would likely succeed on her federal due process claim because OGCA 45-5-3.2(a) conflicted with Paragraph I(a) and was therefore unconstitutional. The Supreme Court responded to the federal appellate court in the affirmative: the answer to the question was “yes” to the extent that OCGA 45-5-3.2 authorized a district attorney appointed by the Governor to serve beyond the remainder of the unexpired four-year term of the prior district attorney without an election as required by Article VI, Section VIII, Paragraph I (a) of the Georgia Constitution of 1983.