WASHINGTON, D.C. — On Thursday, Dec. 15, the 11th U.S. Circuit Court of Appeals heard oral argument in a case challenging Georgia’s at-large method used to elect members of the Public Service Commission, which regulates public utilities in the state. As the Savannah Morning News explains, the commission plays an important part in people’s daily lives as “it determines how much Georgia Power customers pay for electricity, and where that electricity comes from. In fact, the five commissioners are considering a big rate hike right now.” The at-large method means that voters do not elect a representative to represent a certain district but rather elect commissioners for the entire state. The plaintiffs in the case argue that this system dilutes Black voting power in violation of Section 2 of the Voting Rights Act (VRA). In August, a federal district court judge agreed with the plaintiffs and determined that the Public Service Commission’s at-large elections violate Section 2 of the VRA and delayed elections for the commission. The 11th Circuit paused this decision, which the U.S. Supreme Court then vacated (meaning voided) in August. Elections for the commission were delayed, but the appeal remained pending before the 11th Circuit. Prior to today’s oral argument, the 11th Circuit granted the U.S. Department of Justice’s (DOJ) motion to participate in oral argument as a “friend of the court.” The attorney representing the DOJ will be referred to as the DOJ’s attorney. The attorney representing the appellant (Georgia Secretary of State Brad Raffensperger (R)) will be referred to as the appellant’s attorney. The attorney representing the appellees (the plaintiffs in the case) will be referred to as the appellees’ attorney.
First, the judges heard from the appellant’s attorney who argued that Raffensperger’s position is that the lower court erred and the at-large election method does not violate Section 2 of the VRA. The appellant’s attorney began by arguing that the “courts, history and precedent made clear that Section 2 of the Voting Rights Act protects against invidious discrimination, not a guarantee that minorities will always elect their preferred candidates.” He argued that the plaintiffs’ view is that “the only thing that matters is whether the majority and the minority vote differently in every single election, where a minority preferred candidate loses is racially polarized.” He continued on to say that if the plaintiffs’ argument is accepted, “that will lead to Section 2 not being so much a guarantee of a level playing field, but really a partisan and racial preference.” He stated that the Georgia Public Service Commission election results are driven by partisanship, not race. The appellant’s attorney argued that Raffensperger’s position is that “Section 2 does not try to be some sort of anti-partisanship device” and the district court erred in its understanding of partisanship and race. A judge asked what the attorney makes of “the evidence that Black voter cohesion has increased since 2016, but Black partisan affiliation with the Democratic Party has not?” When talking about the change since 2016 in cohesion between party and race, the appellant’s attorney argued that “the key point, and I think the district court missed this a number of times…is that what matters for the injury is whether the majority[‘s cohesion is changing] And this is where it’s very important to note that this [this] did not happen among the majority.” He argued that despite the minority population “voting in some way along racial baseline[s],” there is “not a change in majority behavior…But again, the most important point is that the white voters showed no difference or, if a difference, they kind of came down a little bit” in their support of Republican candidates. A judge then asked: “Do you think that the Merrill decision from the Supreme Court will have any impact on this case?” The appellant’s attorney responded that “I don’t necessarily see how it would impact the two errors that were pointed out. I think the Merrill decision, the argument seems to be mostly about the question, it seems to be mostly about what is the compact districts and and so on and so forth…I think that nothing in the briefing there or the decision there that I’ve seen, is really tracking what the error of the district courts here was, which was essentially when staking began to use Justice White turns ordinary interest group politics for racial, race-based voting.”
Next, the appellees’ attorney argued that the 11th Circuit should affirm the lower court’s decision and find that the district court did not err when it found racial vote dilution. The appellees’ attorney argued that “Secretary [Raffensperger] obviously disagrees with settled law and he invites this court to rewrite it. That’s something of course this panel is without the power to do, but even if this court were inclined to rewrite the law as the secretary requests, this case would be a bad vehicle for doing that.” The appellees’ attorney continued his argument by stating that the evidence presented in this case “is so strong, stronger, in fact than the evidence in Gingles and stronger than the evidence in this Court’s Sumter County case from two years ago. The secretary’s case, by contrast, is both light on facts and undercut by adverse credibility determination.” A judge then asked about a remedy: “So here we had a statewide election and your remedy would push this election into various districts…How is this not impermissibly forcing a new form of government on the state of Georgia, which has decided — whether it’s through statute or [the state] constitution — that it wants to hold statewide elections for the Public Service Commission?” To this, the appellees’ attorney responded that “nobody here argues that there would need to be a Public Service Commission if commissioners were elected by district rather than statewide. The commission is a body that is charged with certain public functions. That’s all it is and that’s what it would remain if it were elected by the district rather than at large.” A judge then asked about intent, to which the appellees’ attorney responded that, although they did not bring intent claims, it was noteworthy that “the at-large nature was adopted in 1906, at the time when Black voters were being disenfranchised in Georgia, is suggestive of intent.”
Next, the judges heard from the DOJ’s attorney, who argued that “Section 2 of the VRA prohibits electoral devices that have the effect of diluting minority voters power in jurisdictions where race plays an outsized role in the political process.” The DOJ’s attorney also suggested that Raffensperger “impermissibly urges this court to adopt an entirely different framework that would allow the credit to escape section to liability nearly by asserting that racially polarized voting patterns correspond with partisan voting preferences.” A judge asked about Georgia’s electoral history: “But there can be an argument, of course, that Georgia is a majority Republican state. How do we look to the more recent successes?” To this, the DOJ’s attorney responded that “the fact is that this is the clearest evidence of racially polarized voting that [an expert in the case] has ever seen in analyzing hundreds of cases like this. And then also that over the 143 year history of this body, only one Black candidate has ever been elected to the office [and] that was 20 years ago. And that person was an incumbent because he had been appointed to the office before he ran for re-election.”
During his time for rebuttal, the appellant’s attorney argued “ Black, Asian, Hispanic and white Democrats are all losing for the same reason. They’re all voting for Democrats and Democrats are all losing. Everyone has the same political opportunity.” He stated that “the reason the district court thought that [racial vote dilution] was going on here [was] because it did not understand racially polarized voting.” He continued that the lower court’s ruling “doesn’t make any sense because just saying that one side votes for Republicans and one side votes for Democrats doesn’t indicate in a particularly strong way. He concluded that “Georgia Public Service Commission elections follow the pattern generally in Georgia: Republicans tend to win,” and this “is not evidence of invidious racial discrimination.”