SCOTUS Stops Ga. PSC Elections in Voting Rights Case

The Supreme Court granted an application to Justice Clarence Thomas to vacate the 11th Circuit’s Aug. 12 stay of a U.S. District Court in Atlanta ruling from Aug. 5 (see 2208050030). The lower court said electing Georgia PSC members for specific districts on a statewide, at-large basis “unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act of 1965 and must change.” The 11th Circuit overruled because two of three judges said it's too close to the election and therefore conflicted with the Supreme Court’s decision in 2020’s Republican National Committee v. Democratic National Committee case (see 2208150054). The high court there said lower federal courts shouldn’t alter election rules shortly before an election.

SCOTUS said the emergency stay motion by Georgia Secretary of State Brad Raffensperger (R) at the 11th Circuit “relied on the traditional stay factors and a likelihood of success on the merits,” but the appeals court “failed to analyze the motion under that framework” from 2009’s Nken v. Holder. “Instead, it applied a version of the Purcell principle,” from 2006’s Purcell v. Gonzalez, which Raffensperger “could not fairly have advanced himself in light of his previous representations … that the schedule on which the district court proceeded was sufficient to enable effectual relief as to the November elections should applicants win at trial.”

The 11th Circuit “may reconsider whether a stay pending appeal is appropriate, subject to sound equitable discretion,” SCOTUS said. After the ruling, Raffensperger said he withdrew his stay motion. “The elections to Districts 2 and 3 to the Public Service Commission will not be on Georgia ballots this November. While we will continue the State’s appeal of the merits of the order, no decision will be reached in time for November’s elections.” The Georgia attorney general’s office is “unable to comment due to ongoing litigation,” a spokesperson said. The Georgia PSC declined to comment.

“This decision was extremely important because a judge has affirmed and acknowledged that the way our state administers the PSC race is prejudiced against Black Georgians and it dilutes [their] voting power,” said Wanda Mosley, Black Voters Matter national field director and a plaintiff in the case. It wouldn’t have been right to allow one more election with a system that a judge has declared biased against Black people, she said. “Having districts drawn but then ignored on Election Day weakened our power” and failed to acknowledge differences between rural and urban areas, said Mosley: Georgia should draw fairer districts and allow only the voters within a district to choose its PSC representative.

The decision delays elections for Republican incumbents Echols and Fitz Johnson, who the district court said can remain in their seats until a new election is called. “After a long legal process, unfortunately there will be no race for Public Service Commission this year,” Johnson tweeted Saturday. Echols “is running for re-election regardless when the election is held,” his campaign spokesperson emailed.

Whether Durand can qualify for a future election depends on how rules change or districts are redrawn in response to the courts, the Democrat said in an interview Monday. While disappointed she won’t face Echols this November, “this decision is good for Georgia because it ends decades of embedded racism,” said Durand, who is white. Altering districts could help Democrats get on the commission, which currently has Republicans in all five seats, she said. “The way it is now, only the Republicans can win.”

The decision sets a precedent for about five other states that draw districts but elect commissioners statewide, said Mosley. Voters elect utility commissioners in about 10 states, while governors nominate them in most of the U.S. Mosley believes “these seats are so important in the way that they impact our everyday lives that it absolutely is something that should be decided by the voter.”

States that use elections “probably get a more responsive" and "accessible commissioner because voters can throw you off the ballot if they're unhappy with your decisions,” Echols told us: An appointed commissioner is likely to be “a clone of whoever the governor is.”

Durand thinks commission elections have led to corruption, at least in Georgia, said the Democrat: But she would like more research about whether nominating processes are any less problematic.

Redistricting Controversy

In a Thursday ruling, the Georgia Superior Court in Fulton County reversed Raffensperger’s decision to disqualify Durand from the ballot for District 2. Georgia requires commissioners to reside in a district for at least 12 months before an election to qualify. Durand moved to Gwinnett County in District 2 in June 2021, but after she announced her candidacy the legislature removed that county from the district.

The map change occurred after text messages between Echols and PSC Chairman Tricia Pridemore about the possible redistricting, recounted Judge Melynee Leftridge in Thursday’s opinion. “The record here establishes that Republican Commissioner Pridemore drew the map,” wrote Leftridge. “Her drawing of the map did not begin until after Ms. Durand launched her candidacy, gained momentum and filed a strong campaign-finance report that received media attention.” Pridemore’s first draft kept Durand’s county in Echols’ district, but “Pridemore then asked Commissioner Echols for Ms. Durand’s address -- which she admits she did for use in drawing the map -- and later removed Ms. Durand’s home county.”

The map’s supporters “gave pretextual justifications -- suggesting repeatedly it was legally required due to population changes, when it was not,” said Leftridge: But Pridemore didn’t deny she deliberately excluded Durand from District 2. “Under these circumstances, the application of Georgia’s durational residency requirement to Ms. Durand's candidacy falls within the Supreme Court’s disfavored category of restrictions -- those that impose an unequal or discriminatory burden on an identifiable political group.”

Durand said the state court decision vindicated her claim that Echols “improperly influenced the redistricting process and violated the law by getting his vacation home added and my home removed from the district.” But the Democrat said she “basically had 24 hours” to celebrate before the Supreme Court stopped the election altogether.