The plaintiffs in the case contended that electing commission members statewide weakened Black voters because they’re always outnumbered by Georgia’s white voters, who make up about half of the electorate. All five commissioners are Republicans, serving six-year terms and earning a $126,000 salary.
U.S. District Judge Steven Grimberg ruled Aug. 5 that the statewide election system violated the Voting Rights Act, which prohibits racially discriminatory voting laws. The lawsuit sought district-level elections for the commission.
The appellate court put Grimberg’s decision on hold based on U.S. Supreme Court rulings that caution against altering election rules on short notice, with early voting scheduled to begin in 66 days, on Oct. 17. The lawsuit was filed over two years ago but didn’t reach trial until this June.
“The election is sufficiently close at hand under our recent precedent. ... But if we are mistaken on that point, the Supreme Court can tell us,” according to the ruling by U.S. Circuit Judge Adalberto Jordan, who was nominated by Democratic President Barack Obama, and U.S. Circuit Judge Robert Luck, who was nominated by Republican President Donald Trump.
An attorney for the plaintiffs said he was disappointed in the court’s decision but remains confident they’ll ultimately win the case.
“It’s unfortunate that this order, if allowed to stand, will mean that once again Georgia will have a Public Service Commission election that goes forward using a discriminatory plan,” said Bryan Sells, an attorney for plaintiffs including members of the NAACP, Black Voters Matter and Georgia Conservation Voters.
The defendant, Secretary of State Brad Raffensperger, declined to comment on the appeals court ruling.
During a trial, attorneys for the state argued that Black voters have been able to participate in the political process, but just because their candidates haven’t often won, that doesn’t mean statewide elections are discriminatory.
Over the past 22 years, four Black candidates, all Democrats, have won statewide nonjudicial elections: U.S. Sen. Raphael Warnock, former Attorney General Thurbert Baker, former Labor Commissioner Michael Thurmond and David Burgess, who was elected to the Public Service Commission in 2000 after first being appointed to fill the seat.
There’s currently one Black member of the Public Service Commission, Republican Fitz Johnson, who was appointed last year by Gov. Brian Kemp to fill a vacancy but hasn’t won an election.
U.S. Circuit Judge Robin Rosenbaum, who was nominated by Obama, dissented from the majority. Rosenbaum argued that there isn’t a precedent for putting a lower-court ruling on hold in this circumstance.
The ruling by Grimberg, a Trump appointee, sought to postpone an election but “isn’t changing the rules mid-stream,” Rosenbaum wrote.
“If everyone in the United States got to vote on who Georgia’s U.S. senators would be, I don’t think anyone would think that system was fair to Georgians,” Rosenbaum wrote. “But Georgia has that type of system for choosing who regulates public utilities.”
Two Public Service Commission seats are on the ballot this November, for districts currently represented by Republicans Tim Echols and Johnson. Echols is being challenged by Democrat Patty Durand and Libertarian Colin McKinney, while Johnson will face Democrat Shelia Edwards.
Though the 11th Circuit issued a stay based on the proximity of this year’s elections, it hasn’t considered the underlying question of whether at-large elections for the Public Service Commission are legal. The case could be heard by the appeals court in several months, with a ruling that would affect elections after this year.