ATLANTA (CN) — A federal appeals court heard arguments Thursday over whether Georgia's statewide method for electing members of the Public Service Commission dilutes the power of Black voters in violation of the Voting Rights Act.
A group of Black voters sued Secretary of State Brad Raffensperger in July 2020, claiming Georgia's use of staggered terms, a majority-vote requirement, and unusually large voting districts for PSC elections runs afoul of Section 2 of the Voting Rights Act, which guarantees minority groups equal opportunity to participate in the electoral process.
After U.S. District Judge Steven Grimberg ruled in favor of the plaintiffs in August, the 11th Circuit blocked his order on belief that it was too close to the upcoming general election. But the U.S. Supreme Court intervened and reversed that decision, removing the two public service commission seats from last month's ballot.
Now the case lies back in the hands of an 11th Circuit panel upon an appeal from Raffensperger, a Republican who argues that Georgia's polarized voting patterns are influenced by partisan politics, not race.
"If most Black voters prefer candidates who lose because the majority simply prefers Republicans (regardless of race), Black voters have the same 'opportunity' to elect as anyone else," wrote Stephen Petrany, the secretary of state's attorney, in his brief to the Atlanta-based appeals court.
Following the district court's five day bench trial in June, Grimberg said in his ruling that he was heavily persuaded by Bernard Fraga, an expert in political data analysis who testified that it has become impossible to separate race from politics in Georgia and that race drives political party affiliation, not the other way around.
"The evidence at trial demonstrated that Black Georgians still suffer from the effects of segregation and discrimination. Dr. Fraga testified that Black voters turnout at lower rates and donate to campaigns at lower rates because of the lingering economic disparities caused by historical discrimination," wrote Grimberg, a Donald Trump appointee.
The plaintiffs argue that the state's at-large election method lacks proportionality in representing the percentage of districts in which Black voters constitute an effective majority. Many PSC candidates have received the majority of votes from their representing district, in which they must also reside, but have lost in the general election.
With the five elected PSC holding the power to regulate utility costs, the plaintiffs assert they also have the ability to lessen the "energy burden" on Black households who are disproportionally more likely to be low-income.
"As to geography and compactness, it was undisputed that Black voters are a sufficiently large and geographically compact group in current-day Georgia to constitute at least one single-member district in which they would have the potential to elect their representative of choice in district-based PSC elections," the district court's ruling states.
However, the three-judge 11th Circuit panel appeared persuaded Thursday by the secretary of state's argument that the commission's actions affect Georgians statewide.
"This is not a school board," Petrany told the panel on behalf of Raffensperger. "It's a state agency."
U.S. Circuit Judge Britt Grant, a Trump appointee, expressed concern that the outcome of a pending U.S. Supreme Court case, Merrill v. Milligan, could have drastic implications on their decision. That case also revolves around Section 2 of the Voting Rights Act, in a challenge to Alabama's new congressional map which maintained only one majority-Black district out of seven total, despite the fact that 27% of the state population is Black.
The circuit judges also cast doubt on the plaintiffs' claims by pointing out that Georgia's general election this year featured Black U.S. Senate candidates for both the Republican and Democratic parties, despite the district court's findings that even after that race, Black candidates still only win 6% of total races in the state.
"We have evidence that Black voters have been able to elect their candidates with Senator [Raphael] Warnock and [gubernatorial candidate] Stacey Abrams. How do we look to these more recent successes?" asked U.S. Circuit Judge Elizabeth Branch, another Trump appointee.
Attorney Jonathan Backer, arguing as amicus curiae for the U.S. Department of Justice, noted that just one Black candidate has ever won an election to the PSC in its 143-year history, and the only reason Democrat David Burgess retained his seat in 2000 was because he was appointed by the governor.
The panel was rounded out by Senior U.S. District Judge Harvey Schlesinger, a George H. W. Bush appointee sitting by designation from the Middle District of Florida. The judges did not signal when they intend to issue their decision or if it would be before the next legislative session begins in January.
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