11th Circuit Urged to Reject Ga. PSC Elections Appeal

Black voters from the Atlanta area pressed a federal appeals court to affirm a lower court’s finding that Georgia’s elections system for the Public Service Commission illegally dilutes Black votes in violation of the 1965 Voting Rights Act. In a Wednesday brief in case 22-12593, the appellee group disagreed with the state that partisanship, not race, explained why the Georgia PSC has had mainly white commissioners.

The 11th U.S. Circuit of Appeals plans to hear oral argument Dec. 15 in the voting rights case (see 2210130042). The Supreme Court in August postponed Nov. 8-scheduled Georgia PSC elections for incumbent Republicans Tim Echols and Fitz Johnson due to the litigation. Georgia told the 11th Circuit last month that there was no evidence that Georgia’s white majority voted on the basis of race to defeat Black-preferred candidates. Also, Georgia disagreed the court could force the state to move away from its practice of electing PSC members for specific districts on a statewide, at-large basis.

"After more than two years of litigation and a week-long bench trial, the district court made detailed findings of fact and comprehensive conclusions of law to support its ultimate conclusion that the challenged election practice violates Section 2" of the 1965 Voting Rights Act, the appellees said. "The district court’s rulings have ample support in the record and stay well within the lines of firmly established precedent." Oral argument isn’t needed to affirm the lower court’s decision, “but it is nonetheless appropriate here because this case affects the fundamental voting rights of millions of Black Georgians."

"Although nearly one-third of Georgia’s voters are Black, only one Black person has ever been elected to the Commission in its 143-year history,” the appellees said. Black and white voters prefer different candidates in PSC elections at rates exceeding 80%, they said. “This extraordinary combination of at-large voting with high rates of racial polarization results in vote dilution on account of race."

The appellees’ district includes Atlanta and has a Black majority, but since voters across the entire, majority-White state may vote on the District 3 commissioner, the "result is that even though the candidate preferred by Black voters has won every county in District 3 in recent years, Black voters there are unable to elect their candidate of choice,” they said."This pattern has repeated itself without exception over the past decade. During that span, not one Black-preferred candidate has been elected to the Commission.”

The lower court found lacking the state’s evidence that partisanship explained the situation, appellees said. And election system challengers don’t have to disprove every possible explanation for racially polarized voting, said appellees, citing the 1st Circuit's 1995 decision in Uno v. City of Holyoke. In the district court case, the state repeatedly conceded that PSC voting is polarized along racial lines, appellees added. "As this Court has explained, a pattern of racially polarized voting is '[t]he surest indication of race-conscious politics' and 'the keystone of a dilution case.'"

It was reasonable for the district court to find feasible the plaintiffs' proposed remedy of electing members by district instead of statewide, the Atlanta-area voters said. Single-member districting is a standard remedy for Section 2 violations caused by at-large elections, and it wouldn't "alter Georgia’s chosen form of government,” they stressed. “Districts would not, for instance, change the Commission’s size or the territory over which it governs."

The district court stopped Georgia PSC elections “simply because Republicans have been too successful,” said Georgia's brief last month. “The district court accepted a [Section] 2 vote dilution claim because black voters in Georgia (who generally do not vote for Republicans) regularly see their preferred candidates for Public Service Commission defeated (by Republicans).” The Voting Rights Act doesn’t allow federal courts to force new government models on states, Georgia added: “But demanding Georgia shift from a century-old, constitutionally required, statewide system to single-member districts does exactly that.”