The fate of a Georgia law that will make the district attorney’s seat and other roles nonpartisan in five metro Atlanta counties rests in the hands of a Fulton County judge after two district attorneys filed lawsuits challenging the measure. 

Lawyers for the state of Georgia are urging a Fulton County judge to dismiss one of the challenges.

End of 2026 legislative session kicks off bill signing season in Georgia

The measure was passed along party lines and signed into law by Gov. Brian Kemp earlier this year. It applies to positions like district attorney, county clerk and tax commissioner starting in 2028 — but only in counties that have a medical examiner rather than an elected coroner. The five counties that fit that description are Clayton, Cobb, DeKalb, Fulton and Gwinnett, all of which have Democratic district attorneys. Notably, sheriffs will continue to be partisan offices in all counties.

Nonpartisan elections are held during the state’s May primary rather than the November general election, though the Georgia Constitution mandates that district attorney elections be held during the general election. Candidates running in nonpartisan elections are also held to different campaign ethics standards and have different fundraising cycles than partisan candidates.

In June, DeKalb County District Attorney Sherry Boston filed a lawsuit against the state, arguing that the newly passed law was unconstitutional because it violated the state’s uniformity clause, which requires laws to be applied consistently throughout the state and prevents state legislators from enacting “special laws” in specific jurisdictions. The lawsuit also claims that the bill was never properly approved by the Georgia state Senate after the body voted down a previous version and passed the revised law without voting to reconsider the failed bill or allowing any public input. 

Last month, Gwinnett County District Attorney Patsy Austin-Gatson filed her own lawsuit challenging the law. A court date in that lawsuit has not yet been set.

Partisan ‘reset’

Sen. Ed Setzler, an Acworth Republican who sponsored the original version of the bill, said the law is aimed at enabling counties to “reset” the impact of partisan politics on local races. Setzler said it would also prevent Atlanta-area prosecutors from “taking a non-enforcement approach,” that he said has been seen in other major metropolitan cities in the U.S., such as San Francisco. 

“We’ve seen the public exposed, and the basic laws not enforced,” he said. “We can’t let that trend come to Atlanta.”

Setzler said he would be open to passing a similar measure for Georgia’s other 155 counties, but he added that Atlanta’s status as a global city sets it apart from the rest of the state.

“The nature of those counties is different than the other counties,” he said. “People who spend their lives in those counties come from across the political spectrum. Let’s just hit the reset button on partisanship, and let’s let them be nonpartisan.”

Tallapoosa Circuit district attorney Jaeson Smith, a Republican, said he is not involved in any lawsuits challenging the new law, but he said he believes the position of district attorney should be consistent across all offices in Georgia. He also pointed out that any change would likely require a constitutional amendment, referencing a similar measure the Legislature worked on earlier this year to get a question about nonpartisan probate judges on the November ballot.

“It should be uniform,” he said in an interview. “I believe the only way to legally change the partisanship of the position of DA is by way of constitutional amendment.” 

Merits of the case

In a court hearing held Thursday before Fulton County Superior Court Judge Thomas A. Cox, senior assistant attorney general Elizabeth Young disputed Boston’s characterization of the law as a “special law.” Young argued that the law will be uniformly applied to counties, since the restriction would apply evenly to any other counties that decided to go through the process of abolishing their coroner’s office.

“The uniformity clause says that laws must be applied on a uniform basis throughout the state,” Young said. “That does not mean it has to apply universally, identically, in every county.”

By abolishing the office of coroner and choosing to appoint a medical examiner, Young added, “these counties have all said there’s something unique about our county” that distinguishes them from the rest.

But attorney Cameron Roberts, who is representing Boston, said state law requires lawmakers to pass local legislation in order to make that transition, meaning counties are not automatically free to change their classification under the new law. 

He also said basing the law on whether or not counties have a medical examiner was a pretext for targeting those jurisdictions, adding that courts have repeatedly struck down laws that don’t provide a reasonable explanation for treating geographic areas differently, citing a 1963 case around education funding that struck down a carve-out for Atlanta Public Schools in Fulton and DeKalb counties.

“This is an irrational and arbitrary classification that has nothing to do with law enforcement,” he said, highlighting that county sheriffs will remain partisan under the new law. 

“It applies to the county clerk, it applies to the tax commissioner, it applies to school boards,” Roberts said. “What does any of that have to do with law enforcement purposes?”

Cox has yet to issue a ruling on the state’s request to dismiss the case.