Plaintiffs seek stay in Georgia utility commission case

Two large cooling towers stand out on a crisp, clear morning at Georgia Power's Plant Vogtle construction site in March 2019. Vogtle's rising costs are making their way onto customer bills. Four plaintiffs claim the method for choosing Georgia's utility regulators violates the voting power of Black residents. (Kristi E. Swartz/Floodlight)
Two large cooling towers stand out on a crisp, clear morning at Georgia Power's Plant Vogtle construction site in March 2019. Vogtle's rising costs are making their way onto customer bills. Four plaintiffs claim the method for choosing Georgia's utility regulators violates the voting power of Black residents. (Kristi E. Swartz/Floodlight)

Brionté McCorkle was "furious" when a federal appeals court ruled in late November that Georgia could keep its current method of electing its utility regulators. She punched her kickboxing heavy bag so hard that it broke.

"I busted the bag," she said. "I was that mad."

But, McCorkle added, "We're not going to let this go."

McCorkle and three other Black voters from Fulton County, Georgia, have filed a motion to stay the appellate court's ruling. Filed this month, the motion asks the appeals court to halt the effects of its own decision while the plaintiffs "ask the Supreme Court to clarify the important issues in this case."

"Absent a stay, Georgia will proceed to conduct Public Service Commission elections using a statewide, at-large method that a federal court — following a week-long trial featuring more than a dozen witnesses — has found unlawfully dilutes the voting strength of millions of Black citizens," the motion argues.

The appeals court's earlier decision, which is binding in Florida, Alabama and Georgia, could block a likely voting rights challenge to the way Alabama chooses its historically white utility commissioners as well.

"Everything about this case is precedent setting," McCorkle said.

The four voters from Fulton County sued Georgia's secretary of state in July 2020, arguing that the election process for the state's Public Service Commission illegally dilutes the voting power of Black voters, violating the federal Voting Rights Act of 1965.

The system has resulted in inequitable outcomes for Black and other minority communities, the plaintiffs argued, including having just two Black public service commissioners in the past 100 years. The five-member commission is elected in statewide partisan elections from geographic districts, serving staggered six-year terms.

The voters who sued alleged the system dilutes the voting power of the roughly 30% of Georgia voters who identify as Black. They argued that the five public service districts should include at least one with a majority of Black voters.

The 11th U.S. Circuit Court of Appeals found that the remedy requested by the plaintiffs — redrawing the five districts — went too far. The decision reversed a lower-court ruling that had halted Georgia's 2022 election to fill two commission seats.

"Plaintiffs' proposed remedy asks us to wade into uncharted territory," the appeals court found. "Plaintiffs' novel proposal is that we dismantle Georgia's statewide PSC system and replace it with an entirely new districted system. But we have never gone this far."

Who serves on the commission is important, the plaintiffs say, because residents of color typically pay a higher percentage of their household budgets on power. They also suffer higher rates of asthma and other health issues caused by breathing polluted air, a wide range of studies show.

Legal history

In August 2022, a lower court agreed with the four voters, with the judge ordering the state not to prepare ballots for two commission races that November and calling for state lawmakers to redraw the single-member districts. Georgia Secretary of State Brad Raffensperger appealed.

The 11th Circuit ruled the elections should continue, but the U.S. Supreme Court disagreed, a move that Raffensperger did not fight. The high court sent the case back to the 11th Circuit, which reversed the original judge's decision on Nov. 24.

The decision came just days before the Georgia General Assembly started a seven-day special session to redraw Congressional and state House and Senate maps after a federal judge ordered more majority-Black districts.

The stay, if granted, would prevent Raffensperger from scheduling elections for the two commission seats. The plaintiffs argued that if the court does not grant their motion, a commissioner "elected by unlawful means" would remain in office until 2030.

Noting that it has been 16 months since the lower court's decision, "Waiting a few more months for ... proceedings to resolve is hardly unfair," the motion said.

Wide impact

The appeals court's late November decision dashed any hopes of having state lawmakers tackle new maps for the Public Service Commission. And the ruling has impacts on neighboring Alabama, also in the 11th Circuit, where customer advocates may seek a change in how its utility commissioners are elected.

Like Georgia, Alabama's historically white utility regulators are elected statewide and have faced scrutiny for making decisions that have resulted in energy inequities: Residents of the relatively poor state pay among the nation's highest utility bills.

"It does put a chilling effect on what can happen," said Daniel Tait, chief executive officer of Energy Alabama, a nonprofit clean energy advocacy group based in Huntsville.

In Alabama, utility regulators also are elected statewide. They have so-called "places" that are akin to districts but, unlike Georgia, there is no residential requirement.

In an interview with Floodlight, Tait said should the plaintiffs in the Georgia case win, "there's quite the potential of a similar challenge in Alabama."

"We on the other side of the border have been watching," he said, later adding, "The fight's not over; we'll see what happens if (the Georgia case) is further escalated to the Supreme Court."

In the third state in the 11th Circuit, Florida, regulators are appointed by the governor after vetting by a legislative committee. Indeed, most states appoint their regulators in some form. Georgia is one of 10 states where commissioners are elected and one of six where they are elected at large.

The state is unique in that it is the only one where commissioners must live in a district, even though statewide voters choose them in elections.

"The districts don't exist in other states," McCorkle said. "If that district structure didn't exist, I feel like we'd probably have less of a claim."

McCorkle and the others argued that Georgia's unique PSC election structure is the chief reason why in a state with the second-largest Black population in the United States, only two commissioners have been Black — and both were appointed to fill vacancies, not elected.

What's more, whoever wants to represent the district that has the most Georgia Power customers – majority Black Atlanta and Fulton County – is elected almost "entirely by people outside of Fulton County," said Bryan Sells, a veteran civil rights lawyer who focuses on voting rights, election law and redistricting.

"There's something wrong about that," said Sells, who represents the plaintiffs in this case. "And it's especially wrong if the difference is on racial lines, and that's what's going on here."


Critical mass

Not everyone thinks that changing the way the state's regulators are elected would result in a different outcome. Much of it boils down to whether voters are paying attention — and who's funding the campaigns.

A 2012 Atlanta Journal-Constitution analysis of Georgia Public Service Commission campaign contributions in the previous five years showed 70% came from electric companies and their lobbyists — whose bottom line depends directly on the commission's decisions. The advocacy group Georgia PSC Accountability Project reports that current commissioners received between 55% and 86% of their campaign contributions from "companies and people that may profit from the agency's decisions."

Said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School: "If the status quo before was Georgia Power in an outsized role in picking these commissioners, nothing changes."

What's more, most people don't know who their member of Congress or state representative or senator is, let alone who their utility regulators are or what they do, said Paul Patterson, a utility analyst with Glenrock Associates LLC.

"You don't have to have everybody engaged, but you do have to have a critical mass, otherwise lobbyists are the most engaged," he said.

Aunna Dennis, executive director of Common Cause Georgia, said even if marginalized groups of people don't exactly know what the Public Service Commission is or does, they do see the impact on their bills and on their health.

"They may not directly know the jargon, but they do know what's impacting them," she said.

McCorkle said Georgia regulators should be more independent from the monopolies they regulate, for example, challenging Georgia Power's plans to build more natural gas plants instead of renewable energy.

The PSC should "move with the best interests of Georgia at heart, which are well beyond the profit motive that the commission currently only thinks (of)," she said.

Floodlight is an environmental news collaborative in Washington, D.C.

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