Ga. PSC Elections Must Remain Statewide, at-Large, Says 11th Circuit Reversal

The 11th U.S. Circuit Court of Appeals reversed the Northern District of Georgia's decision blocking the Georgia secretary of state from running statewide elections for the five-member Public Service Commission on grounds that the at-large elections constituted unlawful vote dilution under Section 2 of the Voting Rights Act (VRA).

The plaintiffs were four Black residents of Fulton County who sued the secretary, alleging that Black Georgians have been unable to elect their preferred PSC candidates because the statewide electoral system forces them to go head-to-head with the preferences of white Georgians across the state (see 2210200035). The plaintiffs contended that single-member districts would be less dilutive and therefore are required under the VRA.

But the 11th Circuit three-judge panel, in a 34-page opinion Friday (docket 22-12593), agreed with the secretary that partisanship, not race, has driven the PSC’s electoral outcomes. The panel also agreed that the plaintiffs’ requested remedy of single-member PSC districts “would impermissibly alter Georgia’s chosen form of government -- a statewide body designed to avoid provincialism,” said the opinion.

The plaintiffs’ vote dilution challenge isn’t “a traditional one,” said the opinion. But their request for the 11th Circuit to install “a completely different system” of one PSC with five single-member districts “strains both federalism and Section 2 to the breaking point,” it said.

Circuit Judge Elizabeth Branch wrote the opinion, backed by Circuit Judge Britt Grant and U.S. District Judge Harvey Schlesinger, sitting by designation from the Middle District of Florida in Jacksonville. Branch and Grant are appointees of President Donald Trump. President George H.W. Bush appointed Schlesinger to the district court.

Because it's "clear to us” the plaintiffs’ proposed remedy is a unique application of Section 2 “that would upset Georgia’s policy interests” afforded protection by federalism and 11th Circuit precedents, “we hold that plaintiffs have not proposed a viable remedy,” said the opinion. “We conclude that the district court made a mistake of law, and we reverse,” it said.

To “reiterate a critical point,” the plaintiffs’ proposed remedy “asks us to wade into uncharted territory,” said the opinion. The plaintiffs don’t bring “a routine challenge to an at-large voting structure at the municipal or county level and seek a single-member districted plan as the remedy,” it said. Nor do they seek “to redraw an already-existing single-member districted system into a less dilutive single-member system,” it said.

Instead, the plaintiffs’ “novel proposal” asks that the 11th Circuit “dismantle Georgia’s statewide PSC system and replace it with an entirely new districted system,” said the opinion. “But we have never gone this far,” it said: “Despite the extensive and litigious history of Section 2, it had never been used to invalidate a statewide election system on vote dilution grounds until the district court reached such a holding in this case.”

The Georgia general assembly determined that the PSC -- a state commission with statewide authority and statewide responsibilities -- “should be elected on a statewide basis,” said the opinion. It did so “for race-neutral reasons,” and the plaintiffs don’t suggest otherwise, it said.

There’s no evidence that race “motivated Georgia’s choice of electoral format at all,” said the opinion. To the contrary, the state’s “deliberate choice” was informed by significant policy considerations “that would be undermined by a forced change” in the PSC’s structure from a statewide body “to a single-member districted body,” it said: “Thus, an adequate remedy has not been proposed.”

The 11th Circuit panel reaches that conclusion because the plaintiffs’ proposed remedy “would fundamentally change the PSC’s structure and operations,” the opinion said. A change from statewide to single-member districted elections “would clearly affect the inner-workings of the PSC because commissioners would be serving a new constituency” -- their respective districts rather than the state as a whole, it said.

The plaintiffs argue that because the PSC’s electoral map is “already drawn into residency districts,” the single-member districted elections they propose “would be consistent” with the state’s “chosen model of government,” said the opinion. But that argument “ignores that each commissioner is still elected statewide,” it said.