Two races for statewide utility regulators are back on the November ballot a week after a federal judge removed them over the unusual voting process for these positions, which he found diluted the Black vote and violated the Voting Rights Act.
On Friday a three-judge appeals court panel granted Secretary of State Brad Raffensperger’s request to reinstate the scheduled election for District 2 and 3 of the Public Service Commission.
They based their decision in part on the fact that only three months remain before the election. “The Supreme Court has recently explained that ‘lower federal courts should ordinarily not alter the election rules on the eve of an election’,” the order states.
Judge Steven Grimsberg of the United States District Court for the Northern District of Georgia issued last week’s order in the case Rose v. Raffensperger, canceling the PSC races in November and calling on the legislature to change the current at-large voting system to make it fair for Black voters in the Atlanta area. The order was issued one week before election officials said they needed to finalize the ballot. The appeals panel said that window was too narrow.
“Cancellation of the November elections for Districts 2 and 3 has to be done by August 12, 2022, and the permanent injunction was issued too close to that date to allow for meaningful appellate review of the district court’s findings of fact and conclusions of law,” the order from Judges Robert J. Luck and Adalberto Jordan states.
The plaintiffs in the case include Richard Rose, the president of the NAACP’s Atlanta chapter; Wanda Mosley, the national field director at the Black Voters Matter Fund (based in Atlanta); James Woodall, a former president of the NAACP Georgia chapter; and Brionté McCorkle, president of Georgia Conservation Voters.
“We are disappointed in the Eleventh Circuit’s decision to grant a stay but remain confident that the District Court’s detailed, well-reasoned ruling in favor of our clients will ultimately be upheld on appeal,” Attorney Bryan Sells said in a prepared statement.
Judge Robin Rosenbaum issued a dissent, which she began with a metaphor describing the voting system for Public Service Commissioners.
“If everyone in the United States got to vote on who Georgia’s U.S. Senators would be, I don’t think anyone would think that the system was fair to Georgians.
“But Georgia has that type of system for choosing who regulates public utilities. The Georgia Public Service Commission(“PSC”) has five Commissioners, and each one must live in a separate district, meaning a separate part of Georgia. Yet the entire state votes on each district’s Commissioner. So though the majority of District 3’s residents are Black, that majority almost never is able to elect its preferred candidate to the Commission. In fact,
while several Black candidates have run to represent District 3, the District has had only one Black Commissioner ever. And that Commissioner was the only Black Commissioner ever elected for any PSC district.”
District 3 comprises Fulton, DeKalb, and Clayton counties. In the current District 3 race, both the incumbent Republican Terrell “Fitz” Johnson and the Democrat Shelia Edwards are Black. Gov. Brian Kemp appointed Johnson to the seat last year after the Voting Rights Act suit was filed.
District 2 runs along the eastern portion of the state. In the current District 2 race Republican incumbent Tim Echols faces Democrat Patty Durand, who has had to fight to stay in the race. Raffensperger disqualified her on the basis of residency on the eve of the primary but a judge temporarily reinstated her as voters went to the polls, and she won the Democratic nomination. She is still awaiting a final ruling on her candidacy.
“I am glad this stay was issued so that I can continue my campaign for an election that is now only 88 days away,” Durand wrote in an email. “However, the original decision that Georgia’s PSC elections violate the Voting Rights Act was correct. The decades of embedded racism needs to end.”
Echols declined to comment, citing the pending litigation.
In her dissent, Rosenbaum also noted that the attorney for Secretary of State Raffensperger in a February hearing rejected the argument about timing on which they’re now relying. The attorney argued that if the judge ruled against the state, the November PSC races should be delayed.
Raffensperger’s attorney said at the February hearing: “There is time to stop that election process and then craft a remedy moving forward and so we would suggest that’s the more logical and best approach here, to not enter the [preliminary] injunction, let this case proceed and then if you ultimately side with the plaintiffs then craft a remedial plan at that point.”