A federal appeals court ruled on Friday that Georgia can keep statewide elections for its five-member commission regulating utilities, overturning a lower court judge who found statewide elections illegally diluted Black votes.
The ruling is important beyond Georgia’s Public Service Commission because it could help protect certain statewide elections in other states subject to scrutiny for racial discrimination under the Voting Rights Act. It also could signal limits to a new wave of voting rights litigation after the U.S. Supreme Court upheld a key part of the law this year in an Alabama case.
In August 2022, U.S. District Judge Steven Grimberg had ordered Georgia’s commissioners elected by district, the first time a statewide voting scheme had been overturned by a federal judge. But a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled Grimberg went too far.
“Georgia chose this electoral format to protect critical policy interests and there is no evidence, or allegation, that race was a motivating factor in this decision,” Circuit Judge Elizabeth Branch wrote for the unanimous panel. “On the facts of this case, we conclude that plaintiffs’ novel remedial request fails because Georgia’s chosen form of government for the PSC is afforded protection by federalism and our precedents.”
Plaintiffs decried the ruling as sanctioning discrimination. Grimberg had found statewide elections illegally handicapped Black-favored candidates, and that such candidates would have a better chance if only voters in a district elected each candidate, making it possible to draw at least one Black-majority district.
“This ruling is another act of continuing discrimination against Black voters in Georgia,” Brionte McCorkle, the executive director of Georgia Conservation Voters and one of four plaintiffs, said in a statement. “Voters should have an opportunity to vote for a public service commissioner that is responsive to their needs and represents their community. Instead, millions of voters are disenfranchised to maintain outdated and unfair electoral practices.”
It wasn’t immediately clear if the plaintiffs would further appeal. Another plaintiff, minister and political activist James “Major” Woodall, pledged that “the fight is far from over and we will continue to use every tool in our disposal to gain the relief we seek.”
If the ruling stands, it could put three of the five Georgia commission seats on 2024 ballots. Commissioners typically serve staggered six-year terms, but elections for the places held by Commissioners Fitz Johnson and Tim Echols were delayed from 2022 by Grimberg’s ruling. Johnson and Echols had already each won the GOP nomination.
A third Republican, Commissioner Tricia Pridemore, was already scheduled for election in 2024. Commissioners are required to live in particular districts under state law, but run statewide.
Retaining statewide elections enhances the chance that all five seats will remain in Republican hands, as they have been for years. Some Democrats who want elections by district would likely be less favorable to utilities. The commission determines how much Georgia Power Co. and other regulated utilities are allowed to bill millions of ratepayers, and what power plants and other facilities the utilities can spend on.
It wasn’t immediately clear Friday if parties would nominate new candidates, or if the 2022 nominees would stand. It’s also unclear whether delayed elections would take place in November 2024 when voter turnout will be highest, or at some other time. No other statewide offices besides public service commission are scheduled for 2024 ballots.
The appeals court said the lawsuit must fail because the plaintiffs hadn’t proposed a plan to remedy discrimination while maintaining a statewide election system, saying courts can’t impose a new form of government as part of a Voting Rights Act remedy.
“Plaintiffs’ novel proposal is that we dismantle Georgia’s statewide PSC system and replace it with an entirely new districted system,” the court wrote. “But we have never gone this far.”
The panel also cited earlier cases that upheld at-large elections for judges, saying a district system could lead commissioners to favor their own districts over statewide concerns.
“If each commissioner represented only a district, then important questions of utility regulation — such as the location of energy and infrastructure — could turn into a zero-sum game between commissioners beholden to their districts instead of a collaborative effort to reach the best result for the entire state,” the court wrote.
Plaintiffs said the current commission is unresponsive to Black voters, including people with lower incomes who pay high utility bills.
