11th Circuit Panel Questions Racial Discrimination Claims in Ga. PSC Case

Two federal judges noted recent Georgia political developments as they pushed back on arguments that the Georgia Public Service Commission election violates 1965 Voting Rights Act Section 2 protections against racial discrimination. The 11th Circuit U.S. Court of Appeals heard oral argument Thursday on Georgia’s appeal of a lower court’s ruling that electing PSC members for specific districts on a statewide, at-large basis illegally dilutes Black residents' votes (see 2210200035). The Supreme Court in August postponed Nov. 8-scheduled Georgia PSC elections, reversing the 11th Circuit's 2-1 decision to reverse the U.S. District Court in Atlanta.

“Now there is … a Black member on the commission,” noted Judge Britt Grant at the livestreamed hearing. “To the extent that your argument” says that Black voters want to elect other Black citizens -- and not only Democrats, “I’m not sure why you don’t already have what you’re seeking.”

The court has long rejected “racial essentialism,” responded Bryan Sells, attorney for Black voters from the Atlanta area who sued Georgia. “It doesn’t matter the race of the candidates … Black voters in Georgia have the legal right to elect candidates of their choice.” Currently, the PSC’s only Black commissioner is Fitz Johnson (R), who was appointed by Gov. Brian Kemp (R) to fill a vacant position and would have had an election Nov. 8 if the courts hadn’t canceled it.

“What about the fact that even since the briefs were filed in this case, we have further evidence of the fact that Black voters are in fact able to elect their preferred candidates statewide?” asked Judge Elizabeth Branch, citing Sen. Raphael Warnock (D) winning reelection against Herschel Walker (R). Both are Black. The judge also noted Democrats twice nominating Stacey Abrams (D), who also is Black, to be their candidate for Georgia governor. “I understand she didn’t win, but there could be an argument … that Georgia is a majority Republican state.”

The Senate race was an “exogenous election,” and the 11th Circuit’s 2020 decision in Wright v. Sumter County Board of Elections “makes sure that exogenous elections are less prohibited,” said amicus DOJ’s attorney Jonathan Backer. He cited testimony by plaintiffs’ expert Stephen Popick, a former employee of DOJ’s Civil Rights Division, who testified that the Georgia PSC election was the clearest example of racially polarized voting he had ever seen. “Over the 143-year history of this body, only one Black candidate has ever been elected to the office," said Backer. "That was 20 years ago, and that person was an incumbent because he had been appointed to the office before he ran for reelection.”

Grant questioned how easily racial discrimination could be shown in statewide races. If each of the state’s five districts picked its own candidate, and the districts were drawn so that minorities lacked a majority in any of them, “you could pretty easily establish that there were racial … things going on there,” said Grant. “Isn’t it a little bit harder on a statewide basis?” Backer disagreed. “The same analysis applies,” including if minority voters can’t exercise political power due to polarized voting, the history of official discrimination, whether there are current disparities that reduce turnout or campaign donations by minority voters, he said. “None of that is tethered to whether or not you’re looking at a single-member district or statewide.”

Branch and Grant questioned the proposed remedy. “Here we have a statewide election and your remedy would push this election into various districts,” said Branch. “This goes beyond redrawing district lines … How is this not impermissibly forcing a new form of government on the state of Georgia?” The two judges wondered aloud whether a PSC election remedy would also have to apply to state judicial races. Sells said 11th Circuit precedent has treated “collegial bodies” like the PSC differently from judicial bodies. Branch replied, “Even though the Public Service Commission is aptly characterized as quasi-judicial?” Grant said, “Regardless of what our precedents say … I don’t quite understand why there would be a distinction between a judicial body and an administrative or legislative one.”

"All that you have is ordinary partisan politics," argued Georgia Solicitor General Stephen Petrany. "Republicans tend to win. That is not evidence of invidious racial discrimination.” U.S. District Court of Middle Florida Judge Harvey Schlesinger, sitting on Thursday’s panel by designation, didn’t ask any questions.