## Facts

- The elected district attorney for Georgia’s Western Judicial Circuit resigned effective February 29, 2020, with the term scheduled to end December 31, 2020, and a regular election set for November 2020.
- A Georgia statute governing vacancies in the office of district attorney authorized the Governor to appoint a replacement to serve until January 1 following the next statewide general election occurring more than six months after the appointment.
- Applying the statute, the Secretary of State determined the district attorney election would not appear on the November 2020 ballot and would instead be held in November 2022.
- A candidate for the office and four registered voters sued in federal court, alleging the statute conflicted with the Georgia Constitution by postponing the election and allowing an appointee to serve beyond the elected term.
- The federal district court granted preliminary injunctive relief, and on interlocutory appeal the Eleventh Circuit certified a question to the Georgia Supreme Court asking whether the statute conflicted with the Georgia Constitution.

## Issues

1. Whether OCGA § 45-5-3.2 conflicts with the Georgia Constitution’s requirement that district attorneys be elected for fixed four-year terms.
2. Whether the statute is unconstitutional to the extent it permits a gubernatorial appointee to serve beyond the remainder of the prior district attorney’s unexpired four-year term without an election.

## Decision

- The court answered the certified question “yes,” but only in part.
- OCGA § 45-5-3.2 conflicts with the Georgia Constitution to the extent it authorizes an appointed district attorney to serve beyond the remainder of the unexpired four-year term of the prior district attorney without an election required at the end of that term.
- The court did not invalidate the statute in full; it limited the conflict to applications that delay the constitutionally scheduled election and allow service into a new four-year term without election.

## Legal Principles

- The Georgia Constitution requires district attorneys to be chosen by circuit-wide election for fixed four-year terms, with service continuing only until a successor is duly elected and qualified.
- The General Assembly may authorize temporary appointments to fill vacancies during an existing term, but it may not alter the constitutional election cycle or extend an appointed officer into a new term without an election at the end of the original four-year term.
- When a statute’s vacancy-filling mechanism delays the required election beyond the expiration of the predecessor’s term and permits holdover service into the next term, the statute conflicts with the Constitution and is unenforceable to that extent.
- Statutes regulating election and vacancy procedures must yield when they contradict express constitutional requirements governing selection and term length of constitutional officers.

## Conclusion

The Georgia Supreme Court held that a statutory vacancy provision for district attorneys is unconstitutional as applied when it postpones the election beyond the end of the prior district attorney’s unexpired four-year term and allows a gubernatorial appointee to serve into the next term without standing for election.


Kemp v. Gonzalez, 849 S.E.2d 667 (Ga. 2020)