Court ruling puts utility regulator races back on the ballot; Georgia plaintiffs eye appeal

Two statewide races are back on the November ballot after a federal appeals court blocked a lower court’s ruling that would have postponed the elections until after the state Legislature adopted a new process that no longer diluted Black voting power.

The 11th Circuit Court of Appeals on Friday stopped the U.S. District Court injunction from going into effect, siding with the Secretary of State’s request to move ahead with the Public Service Commission district races as the underlying case is being resolved. 

Last week, U.S. District Judge Steven Grimberg ruled that the commission’s at-large district elections violate the Voting Rights Act by hindering Black voters’ ability to elect their preferred candidates into powerful positions that regulate Georgia Power and other utilities. 

Grimberg’s ruling would have postponed the races until at least January, when state lawmakers would have had their first chance to replace the statewide voting method that the judge ruled has led to Black voters being vastly underrepresented despite making up about one-third of the state’s population.

With a 2-to-1 decision, the appeals court cited the timing of the injunction as a factor, referencing a U.S. Supreme Court case in which justices warned against making changes too close to an election. Election Day is now less than three months away.

The state argued that although the lawsuit centers on the interplay of race and politics, having the election remain on Nov. 8 “will promote confidence and stability in the election system by ensuring effective appellate review before making significant changes to the Georgia election system.”

In the two races, appointed Republican Commissioner Fitz Johnson faces Democrat Shelia Edwards and GOP District Commissioner Tim Echols is fighting off a challenge from Democrat Patty Durand and Libertarian Colin McKinney.

If the district court ruling had been upheld, Echols and Johnson would have remained in their current positions until single-member voting district elections were held.

Johnson became the lone current Black commissioner on the five-member board after being appointed last year by Republican Gov. Brian Kemp to finish Chuck Eaton’s term.  

After initially being elected in 2010, Echols is vying for a third term. His opponent, Durand, is awaiting a ruling in Fulton County Superior Court on her eligibility after a new GOP-drawn map removed her from Echols’ district. 

The four Black Georgia plaintiffs plan to appeal to the U.S. Supreme Court as they seek district-level elections that they argue will increase their chances to elect state regulators who better heed Black residents’ concerns about the costs of electricity.  

“We are disappointed in the Eleventh Circuit’s decision to grant a stay but remain confident that the District Court’s detailed, well-reasoned ruling in favor of our clients will ultimately be upheld on appeal,” plaintiff attorney Bryan Sells said.

Despite comprising over 30% of the voting-age population, the PSC’s majority Black metro Atlanta district has only ever elected one Black commissioner.

The state, however, says that political partisanship is the primary factor determining why the majority of Black voters prefer a candidate instead of race and that all voters have equal access to the ballot box.

Judge Robin S. Rosenbaum disagreed with her colleagues, saying that it is a worst-case scenario to move ahead with electing two commissioners if the final court ruling ends up favoring the plaintiffs. 

“On the one hand, we could simply postpone an election for a few months while we determine whether the district court erred in finding that the current system violates the Voting Rights Act,” wrote Rosenbaum. 

“But if we allow the election to go forward, we run a risk. If we (as I think likely) determine that the current system violates the Voting Rights Act, then Black Georgians in Districts 2 and 3 are stuck—for the next six years, until 2029—with commissioners whom they didn’t have their full role in selecting,” Rosenbaum added. 

Each of the current five commissioners are Republicans, continuing the GOP’s control of PSC for the better part of two decades, a turnaround from when its first party member was elected in 1992. 

In 1998, Georgia’s Democratic majority in the Legislature established residency requirements for the commission as their statewide power began to wane and rural south Georgia was losing representation to candidates from around Atlanta. That change ended the practice of conducting elections under the same statewide electorate system as other races like governor.