Supreme Court petition targets ‘relic of Jim Crow’ in Georgia

By Niina H. Farah | 05/17/2024 06:57 AM EDT

Georgia Public Service Commission elections are in the crosshairs in a legal battle that has arrived at the nation’s highest bench.

The U.S. Supreme Court.

The Supreme Court. Francis Chung/E&E News

A legal fight over how Georgia elects its utility regulators may soon come before the nation’s highest court in a case that could reverberate beyond the energy sector.

The Supreme Court is weighing whether to take up a case challenging the use of at-large elections to fill positions on the state’s five-person Public Service Commission, or PSC, which sets utility rates and makes decisions about the mix of energy sources that fuel the power grid. Elections to the commission have been frozen under a court order since 2022.

Richard Rose and three other Black voters in Georgia made the argument in a new petition docketed in March that the state’s current system violates federal Voting Rights Act protections against discriminatory elections.

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“In the Commission’s 145-year history, only one Black person has ever been elected to it,” the voters told the Supreme Court in the petition, Rose v. Raffensperger.

“The reason why is a combination of the State’s at-large method of electing commissioners — a relic of Jim Crow — and its extraordinarily high levels of racially polarized voting,” the petition said. “The result, as the plaintiffs proved at trial, is vote dilution ‘on account of race.’”

Supporters of dismantling at-large voting for the PSC say the practice is affecting the ability of voters of color, specifically Black voters, from raising concerns about rising utility rates — particularly for customers whose energy bills already account for a higher percentage of their income.

The makeup of the PSC also has important implications for the pace of Georgia’s transition away from fossil fuels, they said. All five of the commission’s current members are Republicans.

If the Supreme Court chooses to take the case and rules in voters’ favor, the decision would reverse a lower court order that froze Georgia PSC elections and could affect how members of other types of county and municipal boards nationwide are chosen.

Under Georgia’s at-large system, rather than have voters select a PSC member only for the district where they reside, every voter in the state chooses each of the commissioners, said Ruth Greenwood, director of the Election Law Clinic at Harvard Law School.

At-large voting “is exactly the system that was used after the Voting Rights Act was passed to try to disenfranchise people of color,” said Greenwood, who filed a friend of the court brief on behalf of the Sierra Club, asking the justices to take the case. The Supreme Court only hears a small percentage of the petitions it receives each term.

The result of the at-large system is that even if a candidate for one of Georgia’s five residency districts is opposed by everyone who lives in that district, that contender can still get elected, she said.

“So it leads to a white majority being able to choose who they want in every position,” said Greenwood.

A spokesperson for the Georgia PSC, which is not a party to the case, declined to comment on the litigation and directed campaign-related inquiries to individual commissioners, one of whom agreed to comment.

“It has been said by many, ‘if it ain’t broke, why try to fix it,'” said Republican Commissioner Lauren “Bubba” McDonald in an email.

“Where we are today in the state of Georgia as energy goes, we have the cleanest and most reliable of any state in the nation,” he wrote. “The process of elections here works to the favor of our citizens.”

Energy sector impact

Clean energy advocates say the at-large voting system has disadvantaged Georgia’s ratepayers, and the decisions of the current PSC are locking in fossil fuel infrastructure for decades to come.

The PSC is a government body with direct impacts for everyday Georgians because its actions are affecting peoples’ monthly budgets, said G Webber, director of the Sierra Club’s Georgia chapter. They added that those facing the highest impact of increasing bills are Black residents.

The environmental group wanted to weigh in on the Supreme Court petition because of its experience intervening in PSC proceedings on behalf of ratepayers, Webber said.

The Sierra Club has focused on pushing Georgia to shift away from fossil fuels in the state’s integrated resource plan and to limit rising costs charged by utilities. The green group has advocated for measures like increasing battery storage and weatherization programs to help residents lower their energy costs.

The only recourse for people unhappy with the PSC’s decisionmaking is to go to the ballot box, Webber said.

“When there is an at-large voting method, there is really no local accountability,” they said.

Having representation is especially important for communities of color in the South that have been uniquely affected by decades or even centuries of environmental racism, said Quinn Yeargain, an assistant law professor at Widener University.

Yeargain also wrote a friend of the court brief urging the Supreme Court to take up the voters’ petition with Anthony Kreis, a law professor at Georgia State University.

PSC representation is “more than just about having somebody who holds the same ideological beliefs that you do,” Yeargain said.

“It is instead somebody who cares about ensuring the benefits of energy generation distribution, decarbonization, all this policy making done by the Public Service Commission, that all these benefits are shared equitably, by all communities,” they said.

Election freeze

Rose and other Georgia voters first sued Secretary of State Brad Raffensperger in 2020, alleging the state’s PSC elections are discriminatory under the Voting Rights Act.

Challengers can raise claims under Section 2 of the law — which bars voting practices that discriminate on the basis of race, color or membership to a language minority — when elections meet certain criteria, including that there is a history of voter-related discrimination and that elections are racially polarized.

The voters’ lawsuit came two years after Democrat Lindy Miller sought to unseat Republican incumbent Chuck Eaton as the PSC commissioner in District 3, a region that includes Atlanta. While Miller secured a majority of votes from all counties within District 3, she ended up losing the race because Eaton garnered more votes from the rest of the state.

In fact, Eaton had won three terms in office without once securing a majority from any county in District 3, Rose and other challengers wrote in their Supreme Court petition.

Meanwhile, the PSC has only had two Black commissioners in its entire history. David Burgess, a Democrat, was appointed in 1999 and then won election in 2000. He lost his bid for reelection to Eaton in 2006.

Current Commission Chair Fitz Johnson was appointed by Georgia’s Republican Gov. Brian Kemp in 2021. Johnson, who is also a Republican, did not respond to a request for comment on the Supreme Court petition.

A federal judge initially sided with the voters’ claims in 2022, blocking the state from using at-large voting, and it allowed the Georgia General Assembly to develop a new method for choosing PSC commissioners.

State lawmakers have yet to address the issue.

The ruling was later reversed by the 11th U.S. Circuit Court of Appeals, which found in 2023 that the PSC was allowed to conduct at-large elections because the approach fell under an exception carved out in legal precedent for judicial body elections. The 11th Circuit, citing the Georgia Supreme Court, described the PSC as a “quasi-judicial body” and said courts should respect the state’s chosen approach to running its elections.

But elections to the Georgia PSC remain on hold. The 11th Circuit had sought in 2022 to reinstate voting, but that decision was overruled by the Supreme Court.

No PSC vote is scheduled for 2024, meaning that two commissioners who were up for election in 2022 remain on board, along with another member whose term is set to end later this year.

Rose and other Supreme Court petitioners said the 11th Circuit decision was “so at odds with settled law” that the justices could issue a summary reversal, where the court reaches a decision without briefs or oral arguments.

This approach would allow PSC elections to be held as soon as possible using a voting method that complies with Section 2 of the Voting Rights Act, the petitioners told the Supreme Court.

While some advocates have pushed for voters to elect commissioners for the district they live in, others have called for alternate voting methods that would leave an at-large system in place while addressing concerns about diluted Black voting power.

An attorney and the press office for Raffensperger could not be reached for comment on the Supreme Court petition.

In 11th Circuit filings, lawyers for the secretary of state claimed the court-ordered election freeze was “interfering with the state’s chosen form of government.”

“Unlike legislators, Commissioners have wide enforcement authority and act akin to judges at crucial moments, using specialized knowledge in utility regulation that affects all ratepayers in the state,” Raffensperger’s attorneys said.

While all parties recognized that Georgia’s elections were highly polarized, with Black voters leaning Democrat and white voters leaning Republican, Raffensperger’s attorneys said the division was a partisan and not a racial divide. They cited testimony that Black voters would elect Democratic candidates, regardless of race.

They noted that while 12 states elect their utility commissioners, the court-ordered freeze only prohibits Georgia’s PSC elections.

Beyond Georgia

If the Supreme Court does agree to decide the Georgia voters’ challenge, the justices’ decision could ripple through a handful of other states that hold at-large elections.

Those states include Alabama, Arizona, North Dakota, Oklahoma, South Dakota and Texas, said Yeargain of Widener University.

Alabama, Arizona and possibly Texas may be the likeliest places to see Voting Rights Act cases similar to the one in Georgia. That’s because the other states, while they have polarized voting, do not have concentrated populations of minority voters that are large enough to create a new region for a district-based voting system, Yeargain said.

Of the states with at-large voting, Georgia has the best case for establishing single-member district voting because its minority population is large and compact enough and votes similarly enough to form a single district, they said.

Outside of state utility commissions, a Supreme Court ruling could affect elections for Michigan’s board of education and a Hawaii agency that promotes the welfare of Native Hawaiians, Yeargain said.

They expressed doubt that the Supreme Court would be able to quickly restart elections for the Georgia PSC.

“We have now entered the point in the Georgia election cycle where I think the U.S. Supreme Court would say, ‘We are too close to the election. We are not making changes for this year,'” Yeargain said.

While Yeargain is agnostic about at-large voting generally, they said that a district-based model makes sense in Georgia.

“Denying Black voters in Georgia the ability to pick a commissioner of their choice,” Yeargain said, “that has a very unique harm.”