Georgia: SCOTUS Shouldn't Take 'Splitless' PSC Elections Case

Black candidates lose Georgia Public Service Commission elections due to “ordinary, colorblind partisan politics,” Georgia said in a Tuesday opposition brief at the U.S. Supreme Court (case 23-1060). Don’t grant a group of Black voters’ cert petition on a “splitless dispute regarding the distinctive structure” of the Georgia PSC, the state argued. Among other problems, petitioners failed to propose a reasonable alternative election method that could be shown to be better, it said.

The Atlanta-area voting group seeks Supreme Court review of an 11th U.S. Circuit Court of Appeals decision finding that elections must remain statewide for the Georgia Public Service Commission’s five members, who represent five separate districts. The 11th Circuit in November reversed the U.S. District Court of Northern Georgia's decision blocking that method on grounds that the at-large elections constituted unlawful vote dilution under Section 2 of the Voting Rights Act (see 2311270001).

Petitioners failed to show Georgia voting is “racially polarized,” contended the state. "They did show that black Georgians tend to vote for Democrats and white Georgians tend to vote for Republicans, but that divergence is explained by voters’ partisan preferences, not their race.” Black voters aren’t losing Georgia PSC elections “on account of race,” said the state. “Asian Democrats, Latino Democrats -- everyone who votes for Democrats is in the same boat.” Georgia later added, "If minority voters lose elections for non-racial reasons (like ordinary, colorblind partisan politics), there is no [Section] 2 violation because they have precisely the same opportunity as 'other members of the electorate.'”

Georgia acknowledged four current PSC members are white and one is Black. All five are Republicans. But the state, where about a third of the population is Black, has greater diversity among other kinds of elected officials, it said. For example, one of two U.S. senators, more than one-third of Georgia congressional seats and about a quarter of the state legislature is Black, said Georgia: That shows that Black people "are generally successful and often more successful than proportionality would suggest.”

No court before has used Section 2 of the Voting Rights Act "to jettison a statewide election scheme for statewide agency officers,” Georgia argued. Congress didn't intend for federal courts to force states to adopt a new model of government -- and there is no circuit split on the issue, said the state. “Every circuit requires plaintiffs to propose a viable remedy; no circuit lets federal courts rework the basic features of a State’s government.” The district court in this case was legally incorrect that the state needed to prove the validity of its policy choices, Georgia added.

Cases cited by petitioners don't show a circuit split, said the state. The 8th Circuit’s 2006 decision in Bone Shirt v. Hazeltine “merely required South Dakota to create an additional majority-Indian legislative district in a plan that already included single-member districts,” Georgia said. The 10th Circuit’s 2012 decision in Large v. Fremont County, also cited by petitioners, "plainly supports” the 11th Circuit’s decision here, said Georgia: There, the 10th Circuit "imposed a remedy specifically allowed” by Wyoming state law.

Georgia also disagreed there is any parallel with the Supreme Court’s 2023 decision in Allen v. Milligan, which rejected Alabama’s redrawn congressional districts because they violated the Voting Rights Act. "Milligan involved a challenge to a single-member district scheme; the plaintiffs never asked the court to change Alabama’s form of government.”

"Because the Commission is a statewide agency with authority over the whole State, the Commission’s five members are chosen through statewide elections, and have been since 1906,” Georgia said. "This is especially important when it acts in its adjudicative capacity, as it avoids the problem or appearance of 'home cooking.'" Although elected statewide, commissioners have to reside in separate districts, noted Georgia. "This hybrid scheme of district residency requirements and statewide elections ensures that the Commission serves the interests of the entire State: without the residency requirement, Commissioners might all reside in one highly populated part of the state (like Atlanta) and thus be tempted to prioritize that area’s needs over others.”

Challengers had to propose a reasonable alternative election method that could be shown to be better than the statewide elections scheme, said Georgia. "If there is no alternative, there is no vote dilution." The 11th Circuit rejected the proposal to replace statewide elections with a system where five districts would individually elect commissioners because the petitioners "failed to identify a comparator by which to measure voter dilution,” it said. "There is no vote dilution if, to prove dilution, you have to change the form of government."

"Petitioners’ proposed remedy would fundamentally alter the form of the agency, transforming it into a sort of second legislature with regional representatives,” said Georgia. “Instead of Commissioners working on behalf of all Georgians as statewide officials, Petitioners prefer local representatives, beholden to regionalized special interests, who compete with other Commissioners to secure the greatest benefits for their districts.”

The 11th Circuit decision won’t have far-reaching impact, added Georgia. “There are not many (if any) other quasi-judicial, statewide agencies with statewide elections and particular residency requirements," so the decision would likely only affect one commission in one state,” it said. “On the other hand, to the extent they argue that every statewide body must use single-member districts to elect its members … it is Petitioners who are pushing an extreme, novel theory that no court has accepted.”