UPDATE: On Aug. 19, Georgia Secretary of State Brad Raffensperger (R) withdrew his motion to stay the injunction pending appeal, meaning that elections for the Public Service Commission will not be held this November. An appeal will continue to be litigated before the 11th Circuit.
WASHINGTON, D.C. — On Friday, Aug. 19, the U.S. Supreme Court vacated an order from the 11th U.S. Circuit Court of Appeals that would have allowed the Georgia Public Service Commission to hold elections under a system that was recently blocked for violating Section 2 of the Voting Rights Act. This action stems from a 2020 lawsuit where Black voters registered in Fulton County, Georgia challenged the at-large method used to elect members of the Public Service Commission, which is responsible for regulating public utilities. The plaintiffs allege that the way in which elections are conducted for the Public Service Commission violates Section 2 of the VRA because it dilutes the voting power of Black voters. In the complaint, the plaintiffs note that “Commissioners have been chosen by statewide election since 1906. Yet no African American has ever been elected to the Public Service Commission without having first been appointed by the governor. And even then, only one African American has ever served on the Commission.” On Aug. 5, a federal district court judge determined that the commission’s statewide elections dilute Black voting power in violation of the VRA and that “while delaying elections…until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”
This case was then appealed to the 11th Circuit, which stayed (meaning paused) the district court’s order. In granting the stay pending appeal, the 11th Circuit cited the Purcell principle, the idea that changes should not be made to election rules close to an election, even though the secretary of state had not raised any concern with the timing of upcoming commission elections before the district court. In fact, in asking the Supreme Court to vacate the 11th Circuit’s stay, the applicants note that the secretary of state “expressly disclaimed any Purcell argument below, telling the district court unambiguously, ‘we won’t make an appeal based on Purcell.’” In its unsigned order released today, the Supreme Court found that the 11th Circuit had improperly applied Purcell considering that the state’s “emergency motion for a stay pending appeal relied on the traditional stay factors and a likelihood of success on the merits.” The Supreme Court concluded that the 11th Circuit “may reconsider whether a stay pending appeal is appropriate, subject to sound equitable discretion,” meaning the lawsuit will go back to the appellate court for further review. Currently, elections will not be held for the Georgia Public Service Commission this November.