Court of Appeals
of the State of Georgia

                                         ATLANTA,____________________
                                                  March 19, 2020

The Court of Appeals hereby passes the following order:

A20E0039. BARROW v. RAFFENSPERGER.

      John Barrow has filed an emergency motion for expedited consideration of his
petition for a writ of mandamus.
      Barrow filed a petition for a writ of mandamus in the Superior Court of Fulton
County seeking an order requiring Brad Raffensperger, in his official capacity as
Georgia Secretary of State, to receive and determine the sufficiency of applications
for qualification for the office of Justice of the Supreme Court of Georgia for the seat
currently occupied by Justice Keith R. Blackwell.
      Justice Blackwell currently serves as Associate Justice of the Supreme Court
of Georgia. His current term began on January 1, 2015, and ends on December 31,
2020. On February 26, 2020, Justice Blackwell submitted a letter of resignation,
effective November 18, 2020. On the same day, Governor Brian Kemp signed a letter
accepting Justice Blackwell’s resignation.
      On March 1, 2020, David Dove, Executive Counsel to Governor Kemp,
notified Secretary Raffensperger that Governor Kemp intended to fill Justice
Blackwell’s seat on the Supreme Court of Georgia by appointment. Also on March
1, 2020, Secretary Raffensperger determined that qualification materials and fees
would not be accepted for the seat on the Supreme Court of Georgia currently held
by Justice Blackwell because the position would be filled by appointment by
Governor Kemp. The qualification period for candidates for the May 19, 2020 non-
partisan general election (which includes the Supreme Court of Georgia) began on
March 2, 2020, and ended on March 6, 2020. On March 2, 2020, Barrow attempted
to qualify to run for the position of Justice of the Supreme Court for the seat currently
occupied by Justice Blackwell. Secretary Raffensperger’s staff declined to accept
Barrow’s qualifying fee or notice of candidacy.
      After a hearing on March 13, 2020, the superior court denied Barrow’s petition
for a writ of mandamus on March 16, 2020.
      In his emergency motion to this Court, Barrow requests that we direct the clerk
of the superior court to transmit the record immediately and set an expedited schedule
for briefing and oral argument. Although we may have jurisdiction based on the
nature of the superior court order and the relief requested by Barrow, in cautious
deference to the jurisdictional mandates of the Georgia Constitution, we are
transferring this emergency motion to the Supreme Court of Georgia.
      The Appellate Jurisdiction Reform Act of 2016 gave this Court jurisdiction
over “all equity cases,” other than those involving death penalty issues. Ga. L. 2016,
p. 883, §§ 3-1 (codified at OCGA § 15-3-3.1 (a) (2)). Barrow's request for relief
sounds in mandamus, an equitable remedy; however, the primary underlying issue is
an election contest. The Georgia Constitution provides that the Supreme Court of
Georgia has exclusive appellate jurisdiction over “[a]ll cases of election contest.” Ga.
Const. of 1983 Art. VI, § VI, Para. II (2). The Supreme Court has determined that “the
phrase ‘[a]ll cases of election contest’ as used in the 1983 Constitution includes . . .
challenges to the candidates for and results of elections[.]” Cook v. Bd. of Registrars,
291 Ga. 67, 70 (2) (a) (2) (727 SE2d 478) (2012).
      When the type of relief sought is merely ancillary to the underlying legal issue,
appellate jurisdiction will be determined by the underlying legal issue. Saxton v.
Coastal Dialysis & Medical Clinic, 267 Ga. 177, 179 (476 SE2d 587) (1996); see also
Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994) (“The underlying subject
matter generally controls over the relief sought in determining the proper procedure
to follow to appeal.”). Further, “the ultimate responsibility for construing the
constitutional provisions regarding appellate jurisdiction rests with [the Supreme]
Court.” Saxton, 267 Ga. at 179.
      In the present appeal, the grant or denial of mandamus relief appears to be
merely ancillary to the underlying election contest. Consequently, the Supreme Court
may have jurisdiction over any appeal of the superior court’s order denying Barrow’s
petition for a writ of mandamus. Accordingly, this motion for expedited consideration
of his petition for a writ of mandamus is hereby TRANSFERRED to the Supreme
Court.




                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        03/19/2020
                                              I certify that the above is a true extract from
                                       the minutes of the Court of Appeals of Georgia.
                                              Witness my signature and the seal of said court
                                       hereto affixed the day and year last above written.


                                                                                       , Clerk.
