Rose v. Sec'y, State of Ga.

87 F.4th 469

Richard ROSE, an individual, Brionte McCorkle, an individual,Wanda Mosley, an individual, James Major Woodall, Plaintiffs-Appellees, v. SECRETARY, STATE OF GEORGIA, Defendant-Appellant.

No. 22-12593

United States Court of Appeals, Eleventh Circuit

Filed: November 24, 2023

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:20-cv-02921-SDG

Bryan L. Sells, Law Office of Bryan L. Sells, LLC, Atlanta, GA, Nicolas Martinez, Wesley A. Morrissette, Bartlit Beck, LLP, Chicago, IL, for Plaintiffs - Appellees.

Stephen John Petrany, Christopher Michael Carr, Charlene S. McGowan, Georgia Department of Law, Attorney General's Office, Atlanta, GA, Bryan P. Tyson, Bryan Francis Jacoutot, Diane Festin LaRoss, Loree Anne Paradise, Taylor English Duma, LLP, Atlanta, GA, for Defendant - Appellant.

Jason Brett Torchinsky, Holtzman Vogel, PLLC, Washington, DC, for Amicus Curiae National Republican Redistricting Trust.

Jonathan Backer, Erin H. Flynn, DOJ-Crt, Appellate Section, Washington, DC, for Amicus Curiae United States of America.

Before Branch and Grant, Circuit Judges, and Schlesinger,^* District Judge.

BRANCH, Circuit Judge:

The Georgia Public Service Commission ("PSC") consists of five commissioners elected through statewide, at-large elections.¹ Plaintiffs—four black residents of Fulton County, Georgia—sued the Georgia Secretary of State ("Secretary") alleging that this election system constitutes unlawful vote dilution under Section 2 of the Voting Rights Act ("VRA"). In short, plaintiffs allege that black Georgians have been unable to elect their preferred PSC candidates because the statewide electoral system forces them to go head-to-head with the preferences of white Georgians across the State. Plaintiffs contend that single-member districts would be less dilutive and, therefore, are required. The Secretary argues that partisanship—not race—has driven the PSC's electoral outcomes. He also argues that plaintiffs' requested remedy (single-member districts) would impermissibly alter Georgia's chosen form of government—a statewide body designed to avoid provincialism in the tough business of regulating energy. The district court agreed with plaintiffs and enjoined the Secretary from administering statewide PSC elections and from certifying any commissioner elected via such method.² For the reasons below, and with the benefit of oral argument, we reverse.

I. Background

A. The PSC's Functions and Method of Election

The Georgia Constitution requires a five-member PSC for utility regulation. Ga. Const. Art. IV, § 1, ¶ I(a) ("There shall be a [PSC] for the regulation of utilities which shall consist of five members who shall be elected by the people."). The PSC's significant responsibilities are wide-ranging. At a basic level, the PSC determines, or at least monitors, the prices consumers pay for utilities—including electricity, natural gas, and some telephone services. The PSC also controls permitting for power plant construction and it has some jurisdiction over internet connectivity and rural broadband, among other functions. Simply put, the PSC is important to the State and its citizens.

The PSC carries out its responsibilities as an "administrative body" that performs "quasi-judicial" and "quasi-legislative" functions. Tamiami Trail Tours, Inc. v. Ga. Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225, 233 (1957). That is, it conducts some of its proceedings as an adjudicatory body that "hears rate cases, holds hearings, listens to witnesses, makes evidentiary rulings, and weighs testimony from stakeholders"—similar to the judicial role. But it also sets utility rates, controls permitting for power plant construction, and regulates pole attachments and landlines for communications—similar to the legislative role.

The PSC dates back to 1879 when the Georgia General Assembly adopted an act establishing its predecessor, the Railroad Commission. In 1922, the General Assembly changed the name of the Railroad Commission to the PSC and expanded its powers and duties. Since 1906, Georgia's PSC commissioners—railroad commissioners prior to 1922—have been elected statewide to staggered six-year terms. When the PSC achieved constitutional status in 1945, the General Assembly retained the same election system.³ In fact, in over 100 years, there has only been one change to PSC elections. Specifically, in 1998, under Governor Roy Barnes, the Georgia General Assembly created a five-district system with a residency requirement that remains in place today. Under this system, PSC commissioners must live in the district they represent, but they are still elected through statewide elections.⁴ For example, to represent the PSC's third district (Clayton, DeKalb, and Fulton Counties), a PSC commissioner must live in one of those three counties; however, Georgians in all 159 counties will vote on that commissioner's candidacy. The residency requirement did not alter the electoral system (i.e., statewide elections are still used), but it did change the candidate pool (i.e., a PSC candidate must live in the district that he would represent if he were to win the statewide election).

The PSC's statewide electoral structure was deliberately chosen to advance policy interests that the Georgia General Assembly deemed important. For example, the PSC's statewide elections allow each commissioner to prioritize the "best interest[s] of the whole state" without logjams from regionalized disputes. As PSC Chair Tricia Pridemore testified below:

[T]he one thing about the five commissioners is that we don't fight over where things go. We don't fight over which district gets a new gas plant or . . . a solar farm. . . . The way [PSC elections are] structured enables us to . . . maximize the needs for the state.

If each commissioner represented only a district, then important questions of utility regulation—such as the location of energy and infrastructure—could turn into a zero-sum game between commissioners beholden to their districts instead of a collaborative effort to reach the best result for the entire State. Similarly, Pridemore testified that the statewide electoral system discourages fights over rate setting, one of the PSC's most important functions: "We don't fight and argue amongst the five of us . . . over [whether] District 5 customers pay less than District 3 or District 3 electric customers pay more." Other PSC commissioners provided similar views.⁵ At the end of the day, the Georgia General Assembly selected a statewide election system that allows PSC commissioners to focus on the needs of Georgia as a whole.

B. Section 2 of the VRA

An upfront understanding of the framework of Section 2 of the VRA helps contextualize plaintiffs' allegations, the Secretary's counter arguments, and the district court's various rulings.

The text of Section 2 is straightforward:⁶ It forbids "any State or political subdivision" from imposing any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 52 U.S.C. § 10301(a). The right protected by Section 2 is "equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race." Johnson v. De Grandy, 512 U.S. 997, 1014 n.11, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Notably, Section 2 explicitly disclaims a right to proportionality. 52 U.S.C. § 10301(b) ("[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.").

In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25, (1986), the Supreme Court laid the foundation for assessing at-large voting systems for vote dilution under Section 2. Id. at 43-51, 106 S.Ct. 2752. "[A]t-large elections" are not "per se violative of § 2," but the Supreme Court has "long recognized that . . . at-large voting schemes may operate to minimize or cancel out the voting strength of racial minorities in the voting population." Id. at 46-47, 106 S.Ct. 2752 (quotation omitted) (alteration adopted). In such a case, at-large districts are prohibited. Id. at 48, 106 S.Ct. 2752.

To establish vote dilution under Section 2, plaintiffs must first satisfy the three Gingles preconditions:

First, the minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district. Second, the minority group must be able to show that it is politically cohesive. And third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority's preferred candidate."

Allen v. Milligan, 599 U.S. 1, 18, 143 S.Ct. 1487, 216 L.Ed.2d 60 (2023) (brackets in original) (ellipses in original) (quotations omitted) (internal citations omitted) (citing Gingles, 478 U.S. at 51, 106 S.Ct. 2752).

Importantly, we have interpreted the first Gingles precondition—a minority group being sufficiently large and geographically compact to constitute a majority in a reasonably configured district—to require plaintiffs to "offer[ ] a satisfactory remedial plan." Wright v. Sumter Cnty. Bd. of Elections & Registration, 979 F.3d 1282, 1302 (11th Cir. 2020). Without a satisfactory remedial plan, plaintiffs "cannot succeed." Id.; see also Nipper v. Smith, 39 F.3d 1494, 1530 (11th Cir. 1994) (en banc) ("[T]he issue of remedy is part of the plaintiff's prima facie case in section 2 vote dilution cases."); Burton v. City of Belle Glade, 178 F.3d 1175, 1199 (11th Cir. 1999) ("We have repeatedly construed the first Gingles factor as requiring a plaintiff to demonstrate the existence of a proper remedy."). Further, plaintiffs' remedial plan cannot be fundamentally at odds with the state's chosen model of government because "[n]othing in the Voting Rights Act suggests an intent...