May 28, 2024

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In a case that could affect other voting rights lawsuits, 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 was stopped for years and while a federal appeals court last week lifted an injunction preventing the election from taking place, there is little chance that the elections will take place this year.

Civil Service Commissioners have major influence over greenhouse gas emissions because they approve how electric utilities get their power. They also determine the rates that consumers pay for electricity.

In Georgia, the commissioners must live in specific districts. But unlike members of Congress who are elected only by residents of their district, Georgia commissioners are elected by a statewide, at-large vote. A group of Black voters in Atlanta argued in a lawsuit that it violates Section 2 of the Voting Rights Act because it dilutes their votes and prevents 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 elect Democrats for swing seats from mayor and city council to US Congress.

A federal judge agreed with the plaintiffs in 2022 and suspended PSC elections until the state legislature could come up with a new system. But in November 2023, the 11th US Circuit Court of Appeals reversed that decision.

The appeals court ruling addressed the proposed solution of single-member district elections, arguing that a federal court could not override the state’s choice to hold general elections because it would violate “principles of federalism.”

“It’s kind of an upside down view,” said Bryan Sells, one of the attorneys for the plaintiffs. “What the 11th Circuit ruling says is that Georgia is allowed to discriminate against black voters.”

The plaintiffs are asking the US Supreme Court to overturn the appeals court decision, although there is no guarantee the Supreme Court will take up the case.

In their petition for Supreme Court consideration, the plaintiffs argue that if upheld, the appeals court decision “would change decades of settled law and have a cascading effect far beyond the reach of this case.”

“[The appeals court panel] simply decided that whatever reasons Georgia might present for the general scheme … automatically trumped any amount of racial vote dilution, no matter how severe,” the petition contends. “If a state’s interest can prevail in this case, there is no case in which it will not.”

The Georgia Secretary of State’s office declined to comment on the appeal.

Meanwhile, PSC elections have been on hold since 2022, when the federal judge who found for the plaintiffs issued an injunction preventing the Secretary of State from holding or certifying those elections. The 11th Circuit issued an order last week to lift the injunction, though the 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.”

Pursuant to the order, elections for two PSC seats scheduled for November 2022 were cancelled. 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 order 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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