A Fascinating Legal Redux in Georgia

There is a fascinating drama unfolding in Georgia right now, where the Republican Governor Sonny Perdue is trying to run an end-around on the Democratic Attorney General Thurbert Baker, who has refused to join the lawsuit challenging the newly passed health care reform.  According to the Atlanta Journal-Constitution, Governor Perdue has announced that he will appoint a “special Attorney General” to pursue the lawsuit, since Baker will not.

Leaving aside the can’t-make-it-up irony of challenging the constitutionality of a law using what would seem to be an unconstitutional (or at least extra-constitutional) maneuver, the dynamic here is charged with recent history.  [Biographical note: I began my political career in Georgia in 2003, working at the Democratic Party of Georgia, which is why this story immediately rang a bell with me.]

In 2002, when Governor Perdue was elected in a shocking victory over the Democratic incumbent Roy Barnes, Attorney General Baker was elected to his second term.  During his first term, Baker had begun pursuing litigation regarding the state’s redistricting scheme.  (The exact details of the case elude me at the moment, but it had to do with whether the legislature’s redistricting after the 2000 census conformed to Voting Rights Act requirements.)  The case was into the appeals process when Governor Perdue took office, and the new Governor ordered Baker to stop pursuing appeals and let the case drop.  The Attorney General refused.

Thus began a legal drama that extended all the way to the Georgia Supreme Court (Perdue v. Baker), the central question of which was:

Who has ultimate power over litigation on behalf of the state of Georgia – the Governor or the Attorney General?

In 2003, the Georgia Supreme Court ruled in favor Attorney General Baker, confirming that his authority to pursue litigation was independent of the Governor’s wishes.  I won’t pretend to offer a sophisticated legal analysis of the decision, but the layman’s understanding at the end of the case was that the Attorney General was an independent actor, NOT as a subordinate of the Governor.  (For legal types, you can actually read the full opinion HERE.)

Now, it is entirely possible that there are legal considerations that make Governor Perdue’s claim about a “special A.G.” this time around different from his failed attempt to control the Attorney General’s activities in 2003.

It is nonetheless amazing to see these two men potentially heading right back into the same kind of stand-off with which they began their time in office together.


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