After a Judge’s Death, Renewed Scrutiny for a Georgia Loophole That Can Nullify Elections

After losing his reelection bid last summer, Georgia State Court Judge Stephen Yekel turned to a loophole in state law that could have erased the result and blocked the winner from taking office.

In Georgia, if judges announce they’ll quit at some point before the end of their term, they hand the governor the ability to choose their replacement for the next two years. Even if an election was about to be held for their seat, that race gets canceled and kicked years down the road. Even if an election for their seat has already happened, a judge could still resign after they’ve lost, giving the governor the power to make an appointment that would nullify the result.

Evidently looking to trigger this rule, Yekel told Governor Brian Kemp in a Dec. 6 letter that he intended to resign effective Dec. 30, just one day before his term was set to end. Yekel, who lost to challenger Melissa Calhoun in a nonpartisan runoff for the seat last June, told Kemp that a low-turnout election shouldn’t decide the next judge, writing, “the office of State Court Judge of Effingham is too important to be decided by only 6% of the eligible voters.” 

But Kemp refused to accept Yekel’s resignation and appoint his successor, which would have retroactively canceled the election. Replying to Yekel in a Dec. 12 letter, Kemp said that a resignation is only effective once a governor agrees to it and that he could not accept the judge’s “attempted resignation,” writing that it would be unfair to override the results over a “legal technicality.”

On Dec. 31, his last day in office, Yekel was found dead in his chambers from an apparent suicide. Calhoun took office on Jan. 1 as planned after Kemp issued no order on that day.

While local authorities said they were investigating the circumstances of Yekel’s death,  his attempt to resign and request that the governor appoint his successor has sparked demands that state officials close the loophole that could have canceled his election. 

“You’re creating an opportunity to bypass an election,” Sara Tindall Ghazal, a member of the Georgia Board of Elections, told Bolts. “If the judge or the governor doesn’t like the outcome of the election, there’s this opportunity to encourage the incumbent to resign and then fill the seat.” 

Ghazal, who is calling on Georgia lawmakers to end the loophole, said she’s glad that Kemp rejected Yekel’s resignation, but called the ordeal a shocking reminder of how officials could override a judicial election. “I am gratified that the governor decided not to exercise his ability to nullify the election, but he has the ability, and I think we’ve all seen that assuming good behavior on the part of an office holder is an insufficient guardrail against antidemocratic actions,” Ghazal told Bolts. 

“I don’t think we need to be relying on the kindness of strangers,” she added. “We need stricter legal guardrails now.” 

While Kemp didn’t act on Yekel’s request, he has used the loophole to postpone or cancel other judicial elections, though state observers say he has never done so to block a winner after an election has already taken place. 

In fact, Kemp had a direct hand in the controversial 2020 maneuver that effectively created the loophole in its current form and gave him the authority to cancel judicial elections. 

In February of 2020, months before he was set to face a Democratic challenger in May, Georgia Supreme Court Justice Keith Blackwell announced that he would resign at a future date that November. Prior to that point, the governor could appoint replacements to a two-year term only when judges actually stepped down within the six months before a scheduled election for their seat, thereby postponing that election two years into the future. The rule, ostensibly meant to give new incumbents some experience on the bench before facing voters, already allowed state officials to game the system. 

But Blackwell’s 2020 resignation, which he timed for months after his scheduled election that November, effectively expanded the loophole when Kemp and Georgia Secretary of State Brad Raffensperger still canceled the election for his seat. Georgia’s supreme court later blessed the maneuver in a 6-2 ruling, establishing a new precedent in which elections can be canceled, even if the actual vacancy only occurred after Election Day. 

John Barrow, the Democratic candidate whose election against Blackwell was canceled in 2020, told Bolts years ago that he found the ruling to be “dystopian,” warning that it risks nullifying elections. What if a judge announces a future departure but then rescinds it once the election is canceled? What if the election is held, and the losing incumbent resigns in the lame-duck period so that the governor can appoint someone other than the winner? In an interview with Bolts this month, Barrow said Yekel’s Dec. 6 letter asking the governor to change the outcome of the election was just what he had feared following the supreme court’s 2020 ruling. 

“It gives judges the opportunity to invite the governor to set aside an election with which they or the governor may be displeased,” Barrow said. 

“I don’t think the governor deserves any credit for having turned down a discretion he created for himself,” Barrow added. “He said it was because he wanted the will of the voters to be respected, but he certainly didn’t think that when… his friends on the court decided to prevent voters from having an opportunity to choose someone.” 

There’s a clear distinction between the situation triggered by Blackwell in 2020 and the request in Yekel’s Dec. 6 letter: In the first case, no voting ever happened because the state canceled a future election. Yekel, meanwhile, requested changing the winner of an election that already happened, a scenario that likely would generate more public outrage.

Multiple judges have imitated Blackwell since 2020, announcing before Election Day that they’d resign at some point afterwards and thereby canceling the election for their seat. That includes then-Chief Justice Davis Nahmias, who wrote the ruling authorizing the maneuver. 

But some incumbent judges have also announced their resignations after an election was held, in the roughly seven months between Election Day and the end of their term. In those cases, Kemp has simply responded by appointing the candidate who’d just won the election. While that outcome might seem to align with voters’ wishes, legally, this move has the effect of erasing the election that had just taken place—and, practically speaking, it only gives those judges a two-year appointment to the bench rather than the full four-year term that they’d won. 

“What it does do is it converts the four year term to which you’ve been elected by the voters into a two year term to which you’ve been appointed by the governor,” Barrow explained.

“You might say, ‘no harm, no foul,” said Lester Tate, an attorney who represented Barrow in the 2020 supreme court case. “But that’s really not true. If [the winner] doesn’t accept that appointment, then the governor’s office could appoint somebody else; but if [he] takes it, he only gets two years and he has to run again, which is what happened with Yekel.”

Yekel himself served out a two-year term, despite being elected to serve four years, because of this maneuver. 

He won his first election for state court judge in May 2022 for a term that was set to run until the end of 2026. But the judge Yekel was set to replace resigned after the election, instead of finishing his term. Kemp then appointed Yekel to the seat, which essentially overrode his election to a four-year term and forced him to run again in 2024 if he wanted to stay on the bench. 

Kemp’s office did not reply to a request for comment on the governor’s handling of resignations, and how he draws the line between different types of vacancies.

Georgia lawyers who talked to Bolts disagreed or expressed uncertainty about whether this election-canceling loophole can be addressed with ordinary legislation, or if a constitutional amendment would be needed to circumvent the state supreme court’s 2020 ruling. Several said it may depend on the scope of any reform legislation—whether it only bans cancelling elections that have already happened or also closes the door on Blackwell’s preemptive maneuver.

State Senator Josh McLaurin told Bolts that he’d support a reform to stabilize the election calendar. “It should be the law that no resignation by a judge or appointment of a judge can change the timing or outcome of a judicial election,” he said. 

Broadly speaking, he is not convinced that Georgia should elect its judges rather than appointing them, as many states do, but “if you’re going to have judicial elections, the elections should be predictable,” he told Bolts. “There should be no strategic options available to judges or the governor in modifying that expectation.”

“There’s a legitimacy problem,” he added, “when an election is taken away.”

But McLaurin, a Democrat, is not aware of active legislation on the issue; he has seen no interest on the part of the Republican Party that governs the state. Senator Brian Strickland, the Republican chair of the Senate Judiciary Committee, did not reply to a request for comment. 

Ghazal, who is the sole Democrat on the Georgia Board of Elections, also says she has not heard much grumbling about the loophole from conservatives in the state. “I would expect that I would if it were a Democrat making the appointments,” she said.

For Ghazal, other aspects of Georgia’s judicial elections need reform as well. For instance, she wants to shift the timing of all of Georgia’s judicial elections from the spring, where they are now held, to November. Turnout is much higher then since that’s when high-profile races like Congress or the governorship are on the ballot. 

There has been recent movement among states and municipalities to change the timing of their election as a way to boost turnout. “If we’re going to have a system of elected judges, we should go all in to make sure that we have the most participation,” Ghazal said. 

Georgia’s runoff system for electing judges exacerbates low turnout. The first round in Yekel’s reelection race, in May, coincided with higher-profile primaries and it drew more than 7,000 voters; a month later, his runoff drew fewer than 3,000 voters in a county of 71,000 residents. 

Ghazal shares Yekel’s regret in his Dec. 6 letter that so few people voted but her takeaway isn’t that the governor should override the result. “You don’t cancel an election just because you don’t like the outcome or you don’t like the turnout,” she said. “You do create the rules to encourage turnout.”