Appeals court overturns ruling that Georgia utility elections discriminate

11th U.S. Circuit keeps statewide elections for utility regulators
Plant Scherer, a Georgia Power plant, is seen from the air using a drone on Tuesday, November 9, 2021, near Juliette. (Elijah Nouvelage for The Atlanta Journal-Constitution)

Credit: Elijah Nouvelage

Credit: Elijah Nouvelage

Plant Scherer, a Georgia Power plant, is seen from the air using a drone on Tuesday, November 9, 2021, near Juliette. (Elijah Nouvelage for The Atlanta Journal-Constitution)

A federal appeals court overturned a Georgia voting rights ruling Friday, upholding statewide elections for utility regulators that a lower court had found discriminate against Black voters.

The 11th U.S. Circuit Court of Appeals’ decision reverses a federal judge who ruled that allowing all Georgia voters to elect five members of the Public Service Commission illegally reduced Black voting strength.

The 34-page order by three Republican-appointed judges concluded that Georgia laws can allow at-large PSC districts, a system that has empowered the state’s white majority and resulted in just one Black commissioner ever winning election.

“We must remain mindful of state authority, which is a hallmark of American government,” the three judges wrote in their decision. “... 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.”

An attorney for the plaintiffs, four Black voters, said the 11th Circuit incorrectly disregarded the Voting Rights Act of 1965, which prohibits discrimination in elections.

“At-large elections mean that voters outside of Atlanta always get to choose the representative for the voters inside of Atlanta,” attorney Bryan Sells said. “That’s unfair. Black voters are roughly 30% of the state and have 0% of the elected voting power on the Public Service Commission.”

The Public Service Commission, which oversees electricity and natural gas rates for much of the state, currently has four elected white members and one Black member, Fitz Johnson, who was appointed by Republican Gov. Brian Kemp but has never won election.

Credit: File

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Credit: File

The appeals court reversed a ruling last year by U.S. District Judge Steven Grimberg, who was nominated by Republican President Donald Trump.

Grimberg had ruled that Georgia must end statewide elections for the Public Service Commission because they dilute Black voting power. As appeals moved through the courts, last year’s elections for the Public Service Commission were canceled, allowing Johnson and Tim Echols to remain in office while the case was pending.

Secretary of State Brad Raffensperger, the defendant in the lawsuit, is reviewing the court’s decision and will then schedule elections for the Public Service Commission, spokesman Mike Hassinger said.

Credit: Photo contributed by the candidate

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Credit: Photo contributed by the candidate

Patty Durand, a Democratic candidate who ran against Echols, said the appellate court’s decision disenfranchised Black voters from having a representative.

“The recent spate of energy price increases, and more that are being requested, will continue to unjustly and unfairly burden a large portion of Georgians who have been denied representation due to partisan maneuvering,” Durand said.

Echols didn’t immediately return a message seeking comment Friday.

Few Black candidates from either party have won statewide nonjudicial elections.

Over the past 23 years, only four politicians can claim that accomplishment: U.S. Sen. Raphael Warnock, former Attorney General Thurbert Baker, former Labor Commissioner Michael Thurmond and former PSC member David Burgess. All are Democrats.

The 11th Circuit rejected the plaintiffs’ proposed remedy, which would have kept the state’s current Public Service Commission maps in place, which have no districts with a Black majority.

The decision came from two Trump appointees, Elizabeth Branch and Britt Grant, along with an appointee of President George H.W. Bush, Harvey Schlesinger.

The plaintiffs haven’t yet decided on their next steps or appeals, Sells said.

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