Editor’s note: This article was updated with comments from Bryan Sells and Kara Richardson after its initial publication.
The U.S. Supreme Court on Friday morning issued a one-paragraph order that once again removed two statewide Public Service Commission races from the November ballot.
The decision marks the third ballot change in two weeks regarding the PSC elections for District 2 and District 3. On Aug. 5 a federal judge removed the races over the unusual at-large voting process for these positions, which he found diluted the Black vote in Atlanta and violated the Voting Rights Act. On Aug. 12 a three-judge appeals court panel granted Secretary of State Brad Raffensperger’s request to reinstate the scheduled elections.
“We are delighted that the election won’t go forward under a plan that the district court found to be discriminatory,” said Attorney Bryan Sells, who represents the Black voters who filed the initial lawsuit.
The PSC is a five-member panel of utility regulators. While elected statewide, they each must reside in a separate district. Elections for the six-year terms are staggered. The panel sets rates for electric, natural gas and telecommunications services. It also helps shape the state’s energy policy.
In its Friday order, the Supreme Court found the lower court had erred in its analysis.
“Respondent’s emergency motion for a stay pending appeal relied on the traditional stay factors and a likelihood of success on the merits, … yet the Eleventh Circuit failed to analyze the motion under that framework,” the order states.
Instead, the Appeals Court had relied on the Purcell principle, which Ballotpedia defines as “a legal principle establishing that courts should not change election rules during the period just prior to an election because it could confuse voters and election officials.” But the state itself had discounted this timing issue in an earlier hearing.
“I’m disappointed that I won’t be able to face Echols in November,” said Democratic candidate for District 2 Patty Durand. “This on-again, off-again election is frustrating.”
Durand had only the day before received final word that she was qualified to run. Secretary of State Brad Raffensperger had disqualified her on the eve of the primary in May based on residency. But she successfully argued that the PSC districts had been unfairly redrawn earlier this year to target her address and make it impossible for her to meet the required 12-month residency.
The Supreme Court left the door open to another ballot change before November.
“The Eleventh Circuit may reconsider whether a stay pending appeal is appropriate,
subject to sound equitable discretion,” the order states.
Spokeswoman for Attorney General Chris Carr, Kara Richardson, declined to comment due to ongoing litigation.
The Georgia Secretary of State did not immediately respond to a request for comment. Nor did Commissioner Tim Echols.
The Black voters who are plaintiffs in the Voting Rights case initially filed more than two years ago are: 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. Woodall announced the high court’s order on Twitter, saying in part, “We maintain in Rose v. Raffensperger, that Georgia disenfranchises Black voters in violation of Section 2 of the Voting Rights Act.”
The state’s appeal of a federal judge’s order to reform the current at-large voting system is pending in the 11th U.S. Circuit Court of Appeals.