by Jill Nolin, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

May 17, 2024

State Supreme Court races are typically below-the-radar nonpartisan contests in Georgia, but the state’s lone contested Supreme Court race on this month’s ballot has turned into a referendum on abortion rights. 

John Barrow, a former Democratic congressman, has made reproductive rights the cornerstone of his campaign as he challenges Justice Andrew Pinson, who was appointed to the seat by Republican Gov. Brian Kemp in 2022 to replace former Justice David E. Nahmias. 

Three other state Supreme Court justices are running unopposed for another six-year term on the bench.

Barrow’s views on abortion are made plain by his campaign signs, which include the phrase “vote for choice,” and ads that feature him saying he will protect women’s rights.

The state’s nine-justice high court has already rejected a narrow part of a challenge to the state’s 2019 abortion law, which bans most abortions after about six weeks. The rest of that challenge, which alleges the law violates the state Constitution, is still pending in Fulton County Superior Court.

Barrow’s campaign has attracted endorsements from groups supporting abortion rights, like Planned Parenthood Southeast Advocates. That has been met with a pro-Pinson ad from the anti-abortion group Frontline Policy Action and a $500,000 boost from the governor’s leadership committee. Kemp signed Georgia’s abortion law in 2019.

Barrow’s campaign, though, has also drawn criticism – and a complaint to the state Judicial Qualifications Commission – from those who say he has crossed a line. With the election a week away, Barrow sat in a federal courtroom Monday challenging the complaint, which he argues is an attempt to chill his speech.

“I believe that abortion rights are protected by the Georgia Constitution, and I believe the federal Constitution allows me to say that,” Barrow told reporters outside the federal courthouse in downtown Atlanta Monday afternoon.

Barrow had asked the federal court to intervene and block a special committee of the commission from issuing a public statement ahead of Tuesday’s election, when the race will be settled since it is a nonpartisan election. He is represented by Lester Tate, a former chair of the Judicial Qualifications Commission.

That panel sent Barrow a confidential letter early this month warning him that he was out of step with the state’s judicial code of ethics partly due to how “emphatically” he was stating his views without also emphasizing the duty of a judge to uphold the Constitution and laws of Georgia.

Barrow made the letter public when he sued the commission in federal court this month.

But the federal judge assigned to the case, Judge Michael L. Brown, on Thursday rejected Barrow’s request for the court to block the commission from taking further action and dismissed the case after he said Barrow provided no evidence that the commission’s action, or the threat of further action, had impeded his speech.

“He has not claimed he intends to exercise his First Amendment rights but is not doing so for fear of prosecution by the JQC,” wrote Brown, who was appointed by former President Donald Trump in 2017. “Indeed, the evidence shows just the opposite: that Plaintiff is determined to continue saying the things he wants to say about his views on abortion rights and his commitment to defending those rights.”

In a statement earlier this month, Pinson accused Barrow of “running a hyper-partisan campaign based on promising to defy the judicial oath.” At the time, his campaign released a letter signed by a group of former justices, past state bar presidents and a couple of former JQC officials warning of the dangers of partisan judicial races and candidates who publicly commit to how they will vote when on the bench.

“Unfortunately, John Barrow is violating the judicial code ethics by running a partisan, single issue campaign that would do irreparable damage to the impartiality of the Georgia Supreme Court,” Pinson’s campaign strategist Heath Garrett said Thursday.

“The Georgia code of judicial ethics makes it inappropriate for a candidate for the Supreme Court to pre-judge cases on any issue,” Garrett said.

But Barrow insisted this week that he has not said how he would rule in any particular case, pointing to the various technical complications that can arise.

“I’ve never declared how I would rule in a case, but I have not hesitated to say what I believe the law is in this matter because that’s what people have a right to know,” Barrow said to reporters. “If you can’t talk about what the election is all about, what’s the point of having an election in the first place.”

Michael J. Broyde, a law professor at Emory University, said Georgia’s system for electing judges sets candidates up to make their appeals to voters. While they cannot say how they would vote in a specific case, judicial candidates can share their worldview, Broyde said.

“The voters are entitled to a substantive conversation between two candidates,” Broyde said. “They want a substantive conversation between two candidates on the legal doctrines that the voters care about. That’s why the state of Georgia has judicial elections. It wants Georgia Supreme Court justices to be elected by the people. It’s a populist approach.”

Although Barrow’s style of campaigning may be a departure from the usual Georgia judicial election fare, Broyde said Barrow appears to be offering voters his judicial philosophy, just in a specific area.

“While he is not telling us how he would resolve a specific case between this person and this person, he is tipping his hat as to how his judicial philosophy will impact his ruling in the area of reproductive rights,” Broyde said. 

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