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In a case that could impact other lawsuits on voting rights, Black voters who sued over Georgia’s elections for key utility regulators are appealing their case to the U.S. Supreme Court.
Those elections for the Georgia Public Service Commission, or PSC, have been on hold for years and while last week a federal appeals court lifted an injunction blocking the elections from taking place, there is little chance the elections will happen this year.
Public Service Commissioners have enormous sway over greenhouse gas emissions because they approve how electric utilities get their power. They also set the rates consumers pay for electricity.
In Georgia, the commissioners have to live in specific districts. But unlike members of Congress who are only elected by residents of their district, the Georgia commissioners are elected by a statewide, at-large vote. A group of Black voters in Atlanta argued in a lawsuit that this violates Section 2 of the Voting Rights Act because it dilutes their votes, preventing them from sending the candidate of their choice to the commission.
In one example the plaintiffs cited, the former commissioner for District 3, which covers Metro Atlanta, “was elected to three terms on the PSC without ever winning a single county in District 3.”
That commissioner — along with four of the five current commissioners — is a white Republican. Georgia’s population is one-third Black, with a much higher proportion in District 3. Georgia voters elected Democrat Joe Biden and two Democratic U.S. Senators in 2020, and Atlanta voters tend to choose Democrats for seats ranging from mayor and city council to U.S. Congress.
A federal judge agreed with the plaintiffs in 2022 and suspended PSC elections until the state legislature could devise a new system. However, in November 2023, the 11th U.S. Circuit Court of Appeals reversed that decision.
The appeals court ruling took issue with the proposed fix of single-member district elections, arguing a federal court can’t overrule the state’s choice to hold at-large elections because it would violate the “principles of federalism.”
“It’s kind of an upside-down view,” said Bryan Sells, one of the lawyers for the plaintiffs. “What the 11th Circuit’s ruling says is that Georgia is allowed to discriminate against Black voters.”
The plaintiffs are asking the U.S. Supreme Court to overturn the appeals court decision, though there’s no guarantee the Supreme Court will take up the case.
In their petition for Supreme Court consideration, the plaintiffs argue that if it’s upheld, the appeals court decision “would upend decades of settled law and have a cascading effect far beyond the reach of this case.”
“[The appeals court panel] simply decided that whatever rationales Georgia might tender for the at-large scheme…automatically trump any amount of racial vote dilution, no matter how severe,” the petition argues. “If a State’s interest can prevail in this case, there is no case in which it won’t.”
The Georgia secretary of state’s office declined to comment on the appeal.
In the meantime, PSC elections have been on hold since 2022, when the federal judge who found for the plaintiffs imposed an injunction blocking the secretary of state from holding or certifying those elections. The 11th Circuit issued an order last week lifting the injunction, though its effect was not immediately clear.
Sells and a spokesman for the secretary of state’s office both said they were reviewing the order. In a text message, Sells also expressed surprise at what he called “the court’s unilateral action that no one asked for.”
Under the injunction, elections for two PSC seats that were scheduled for November 2022 were canceled. Despite not facing voters, those commissioners continue to serve and vote on PSC decisions, including rate increases and the three new fossil fuel-powered turbines the commission just approved.
PSC elections are also not on the 2024 ballot. A third commissioner’s term will expire at the end of the year.
A bill that passed the Georgia General Assembly before the Supreme Court appeal was filed or the injunction was lifted lays out a schedule for elections to resume, still following the current model of statewide voting. Governor Brian Kemp signed it into law last week.
The law schedules those elections to begin in 2025.
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