By J. Randolph Evans

What do Georgia judicial elections and reapportionment have in common?
Nothing, but maybe everything – especially in 2012.

In 2012, many statewide judges around Georgia, including a majority of
Justices on the Georgia Supreme Court, will be on the Primary Election
Ballot.  Georgia judicial elections are supposed to be nonpartisan
affairs (although political parties and governors have been known to get
into a judicial race here and there.)

From all indications, Georgia’s Supreme Court and Court of Appeals
elections appear to be completely disconnected from reapportionment.
The statewide judicial elections have no districts and are nonpartisan.
(Judicial candidates appear on both the Democrat and Republican Primary
ballots.)

Then, there are non-judicial elections, largely legislative races for
the Congress and the General Assembly.  They are directly impacted by
reapportionment.

Under the United States Constitution, there must be a Census every ten
years.  The Census is then used to determine how many Representatives
each state gets to send to the United States House of Representatives.
Basically, the 435 Members of the U.S. House get ‘reapportioned’ among
the states depending on their population.

Based on the 2010 census, some states actually lost Representatives,
like Ohio (-2). Other states gained Representatives, like Texas (+4).
Georgia gained one additional Congressional seat and will now have
fourteen Representatives.

Once the 435 Representatives get ‘reapportioned,’ the individual states
decide the boundaries for each Congressional District.  In Georgia, that
is the Georgia General Assembly’s job.  In just a few weeks, the General
Assembly will convene in Special Session to draw Georgia’s new
Congressional District lines.

In addition to the Congressional District lines, the Georgia General
Assembly will also redraw the district lines for each district of the
General Assembly – both the Georgia House and the Georgia Senate.  All
of the districts of the same type must have approximately the same
population.  This is necessary to make sure that every Georgian has
equal representation.

From all indications, Georgia’s non-judicial elections appear to have
little in common with judicial elections.  Unlike the statewide judicial
elections, legislators’ districts change with reapportionment.  Indeed,
the district lines for various legislative seats drawn by the General
Assembly in August can (and in many cases will) determine who wins and
who loses next year.

In addition, legislative elections are partisan elections.  Unlike
judicial candidates who appear on both the Democratic and Republican
ballots, legislative candidates are listed on only one ballot and face
off against other candidates from their own political party in the
Primary Election.  It is the November General Election in which all
voters choose their representative.

So, what do judicial elections (especially the Georgia Supreme Court and
Court of Appeals elections) and reapportionment have in common –
nothing.  Or, maybe everything. – – – – –

Earlier this year, the Georgia General Assembly moved judicial elections
from the General Election (in November) to the Primary Election held in
July. The change was prompted by last year’s costly (over $3,000,000)
statewide Runoff Election to decide one Supreme Court and two Court of
Appeals races, after no appellate court candidate achieved over 50% of
the vote in a crowded field of candidates in the General Election.
While of little legal consequence, this change has a dramatic impact on
the possible outcomes of judicial elections.

Primary Elections have dramatically lower voter turnout (even in the
best years) than General Elections.  In the 2008 General Election (our
most recent presidential election), almost 4 million Georgians voted.
On the other hand, in the 2010 Primary Election (with contested
gubernatorial races), about 1 million Georgians voted.

With these kinds of numbers, turnout can (and often does) mean
everything in a Primary Election.  Contested elections drive up turnout.
And, that is where reapportionment comes into to play.

There is no greater genesis for contested primary elections than new
district lines – whether at the federal or state level.  Entirely new
districts, i.e., without an incumbent, especially draw lots of interest
from candidates eager for a clean shot at elected office.

So, where will the new Congressional District and any new Georgia House
and Georgia Senate seats get drawn?  All anyone has to do is look at a
Georgia map showing where the people are.  That same map will also
illustrate the most fertile ground for judicial candidates seeking to
take advantage of the political dynamics of a low voter turnout Primary
Election.

The fact is that when the Georgia Legislature draws the new
Congressional District (which will have no incumbent), it is not
technically also drawing a district for a new Georgia Supreme Court
Justice or Court of Appeals Judge.  But in the world of real politics,
it could be.  In open judicial races, like the vacancy created by
Supreme Court Justice George Carley’s likely retirement, the higher
turnout in a contested new Congressional election could decide the race.