A three-judge panel of the 11th Circuit Court of Appeals on Friday maintained Georgia’s system of voting statewide for utility regulators, overturning a lower court ruling that would have required the Public Service Commissioners to be elected by district to avoid diluting the Black vote.
The decision came at 4 p.m. on Black Friday, nearly a year after the court heard oral arguments in the case and more than a year after the date on which elections for two of the commissioners were initially scheduled.
Read the 34-page decision here.
What’s the PSC?
The PSC is a five-member board that is voted on state-wide for six-year terms on a rotating basis. It regulates monopoly utilities, including Georgia Power, and thus has a huge influence on Georgians’ pocketbooks. The current panel has been instrumental in pushing the Plant Vogtle nuclear expansion to completion despite its over $30 billion price tag. Because the PSC regulates decisions about energy supply as well as cost, they also play a role in determining the state’s carbon emissions. While commissioners are voted on state-wide, they are required to live in the district of the seat for which they’re running.
What’s the lawsuit about?
In 2020 Black voters from the Atlanta area challenged this at-large voting system, arguing it weakened Black voters’ voices, violating the Voting Rights Act of 1965. On August 5th, 2022, Judge Steven Grimberg ruled in their favor.
The State of Georgia appealed, and Judge Grimberg’s ruling was overturned by the 11th Circuit Court of Appeals. The plaintiffs then appealed to the U.S. Supreme Court, which reinstated Grimberg’s original ruling and removed the PSC race from the November 2022 ballot.
The Supreme Court then sent the case back to the 11th Circuit Court for review. The Court’s Circuit Judges Elizabeth L. Branch and Britt C. Grant along with U.S. District Judge for the Middle District of Florida Harvey Schlesinger heard oral arguments in the case in Dec. 15, 2022. They filed their opinion Nov. 24, 2023.
The judges rejected the proposed district-wide races as an overreach of federal authority. “… Georgia chose the statewide electoral model for the PSC, and plaintiffs’ proposed remedy would alter the choice in contravention of the principles of federalism,” Branch wrote in the opinion.
Brionte McCorkle, the Executive Director of Georgia Conservation Voters and one of four plaintiffs, said the ruling ignored precedent and instead relied on the testomony of the incumbent commissioners, who have benfited from the at-large system.
“This ruling is another act of continuing discrimination against Black voters in Georgia,” McCorkle said in a statement. “It denies fair representation not just for black voters but for all Georgians. Voters should be able to vote for a public service commissioner that is responsive to their unique needs and represents their community. Instead, millions of voters are disenfranchised to maintain outdated and unfair electoral practices.”
What happens next?
Bryan Sells, who represented the plaintiffs, said they are still considering their options, including an appeal. In her statement, McCorkle said “the plaintiffs are exploring and will pursue all possible legal, regulatory, and policy actions.”
If the ruling stands, three PSC seats could be on the ballot in 2024. The races postponed last year, for seats held by Tim Echols and Fitz Johnson, will be decided in a special election that could be held as early as March 12, 2024, in connection with the presidential preference primary. A third seat, that of Tricia Pridemore, would ordinarily be on the ballot in November, 2024.
“As far as scheduling the PSC elections, the Secretary is reviewing the court’s decision and anticipating further details likely to be in the court’s order,” Secretary of State Spokesman Mike Hassinger wrote in an email. “We’ll be announcing the scheduling of the elections once that review is complete.”
Echols, who was last elected in 2016, is in the seventh year of his six-year term because of last year’s election postponement. Johnson was never elected. Instead, Gov. Brian Kemp appointed him in July 2021 to complete the term of Chuck Eaton, who left the PSC after Kemp appointed him to a judgeship.
All five sitting commissioners are Republicans. All but Echols were initially appointed to the commission and were able to run for election as incumbents.
It’s unclear if the Democratic candidates who qualified for the canceled 2022 PSC election will pick up where they left off. Patty Durand was the Democratic nominee from District 2 running against Echols before the race was postponed.
“I’m waiting to see what Brad Raffensperger does,” Durand said. “If he sets the election with no primary, then I’m still the nominee and I’m running.”
Democrat Shelia Edwards was the Democratic nominee from District 3 running against Johnson before the race was postponed. She did not respond to a request for comment.
The Tide brings regular notes and observations on news and events by The Current staff.
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