I wishcasted a bit about VRA implications for GAPSC back in January.
A bit of history from the plaintiffs (likely written prior to the appointment of Fitz Johnson by Brian Kemp):
“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.”
Why was the 1998 law passed?
The ruling by Judge Grimberg cites, among others, the 1998 reform of PSC elections from being fully-statewide to having to run statewide from residency districts. This summary from the 1998 session of the Georgia General Assembly cites that year’s HB 95 as that legislation.
The General Assembly passed HB 95 on April 7, 1998, and Governor Zell Miller signed the bill into law on April 23.
As documented here, HB 95 was co-sponsored in the House by speaker Tom Murphy (D), Reps. Terry Coleman (D), Newt Hudson (D), Larry Walker (D, the House Majority Leader), Jimmy Skipper (D, Majority Whip), and LaNett Stanley-Turner (D, Majority Caucus Secretary).
From what we know, Republicans occupied 23 seats in the state senate, 76 in the state house in that iteration.
As the PSC put it in a press release from the time:
“In its original form, H.B. 95 would have prevented Commissioners Bobby Baker [R] and Dave Baker [R] from seeking re-election. The Senate, in a bipartisan effort authored by Senators Chuck Clay [R] and Charles Walker [D], amended the bill so as not to affect sitting Public Service Commissioners. Split along party lines, the House disagreed with the Senate, but in the last hour of the session accepted the Senate version.” The House version was blatantly partisan. I still question district qualification for a statewide office, but at least this version is fair to all involved,” said Commissioner Dave Baker. The legislation was first introduced in 1996 – just one year after Republicans for the first time became the majority on the PSC.”
So HB 95 seems like legislation which was not fully thought out by its authors, who also could not seek an amendment to the state constitution to establish actual districts and district-exclusive elections (since it takes 2/3 of both chambers to send a proposed amendment to the ballot). This seems like it was meant to protect Democratic incumbents on the commission from eventual defeat and (initially) force two Republican commissioners to run again for their seats, especially if Tom Murphy was involved as a sponsor.
Only in 1998 did Democrats decide to pursue this statutory change to end the fully-statewide election of PSC members, but only through a half-measure which ended up screwing over Democratic candidates for PSC in the 2000s as they hemorrhaged their remaining White rural voting base.
Will this change require a constitutional amendment or a statute law change?
Article IV Section I of the Georgia State Constitution states in full:
Paragraph I. Public Service Commission.(a) There shall be a Public Service Commission for the regulation of utilities which shall consist of five members who shall be elected by the people. The Commissioners in office on June 30, 1983, shall serve until December 31 after the general election at which the successor of each member is elected. Thereafter, all succeeding terms of members shall be for six years. Members shall serve until their successors are elected and qualified. A chairman shall be selected by the members of the
commission from its membership.
(b) The commission shall be vested with such jurisdiction, powers, and duties as provided by law.
(c) The filling of vacancies and manner and time of election of members of the commission shall be as provided by law.
Define “by the people”. Can statute law interpret that “by the people” can apply to “the people of each district”?
Here’s the statute text from O.C.G.A. 46-2-1(a):
- The Georgia Public Service Commission shall consist of five members to be elected as provided in this Code section. The members in office on January 1, 2012, and any member appointed or elected to fill a vacancy in such membership prior to the expiration of a term of office shall continue to serve out their respective terms of office. As terms of office expire, new members elected to the commission shall be required to be residents of one of five Public Service Commission Districts as hereafter provided, but each member of the commission shall be elected state wide by the qualified voters of this state who are entitled to vote for members of the General Assembly. Except as otherwise provided in this Code section, the election shall be held under the same rules and regulations as apply to the election of Governor. The Commissioners, who shall give their entire time to the duties of their offices, shall be elected at the general election next preceding the expiration of the terms of office of the respective incumbents. Their terms of office shall be six years and shall expire on December 31.
- In order to be elected as a member of the commission from a Public Service Commission District, a person shall have resided in that district for at least 12 months prior to election thereto. A person elected as a member of the commission from a Public Service Commission District by the voters of Georgia shall continue to reside in that district during the person’s term of office, or that office shall thereupon become vacant.
When will the General Assembly work on this change?
Usually, a special session may be called in the lame duck period between election and inauguration, so I wouldn’t be surprised by this. Or this could be handled in the 2023 session.
What changes could be made to PSC elections?
What I can think of:
- Single-winner District-exclusive partisan elections (as done in Mississippi, Louisiana, Montana, Nebraska and New Mexico); or
- Straight at-large election of all members and abolishing the residency districts (as done in Alabama, Arizona, Illinois, North Dakota, Oklahoma and South Dakota);
- Partisan or non-partisan?
- Remove PSC from directly-elected to governor-appointed?
Of course, New Mexico (a Democratic-majority government) passed a 2020 referendum which shrinks their Public Regulation Commission from five to three seats and shifts it from elected to gubernatorially-appointed, among other things. The changes take effect on January 1, 2023.
I can at least say that five statewide elections will be taken off the ballot, with voters having only one section reserved for PSC candidates rather than two (if they live in a district which is up for election).
Who won each district in past PSC elections?
Based on data, we do know that Democratic nominees David Burgess (2006), Stephen Oppenheimer (2012), and Lindy Miller (2018) would all have won District 3 under a district-based election method for PSC. However, I couldn’t say that District 2, the next-closest district, would see strong performances by Democratic nominees Mac Barber (2004), Keith Moffett (2010), or a hypothetical Democrat in 2016. Furthermore, the General Assembly’s removal of Gwinnett County from District 2 in 2022 would have foreclosed on a Democrat winning this district under a directly-elected system.
How will this affect independent and third-party candidates?
From my conversation with Colin McKinney, a Libertarian who was on the ballot for PSC District 2 until the election was cancelled, this will not be good for third-party and independent candidates. Libertarians, the only third party on the Georgia general ballot, usually only appear on statewide ballots for office because they are able to solicit enough petition signatures statewide to appear on the ballot in election years. This development means that Libertarians will be harder pressed to find petition signatures in each district.
How will the future PSC map comply with the VRA and other federal law?
The map will have to be drawn by Republicans to barely be compliant with the VRA, whether or not it they decide to comply with current state law mandating that PSC districts must be drawn around whole counties. How much does the 2022 map comply with the VRA’s requirements?
SCOTUS and other bodies controlled by the Federalist Society are hostile to the VRA. What do they gain from this case?
The Federalist Society cult (yes, “cult”) has a knack for using seemingly-innocuous rulings to build up larger assaults on society, and repeatedly doing so until they end up with a Shelby or Dobbs. Remember that this decision is a temporary ruling to force the 11th Circuit to reconsider their stay on Grimberg’s decision. We have no idea when SCOTUS could lift this ruling.
But we do know that the disdain for the VRA among conservatives will spur them to file cases attacking the legitimacy of the VRA. Stay woke and all that.
What will this mean for Georgia Democrats?
- I expect that more Democrats (especially outgoing legislators in “safe blue” Metro Atlanta) will consider running for a PSC seat or two. Expect more competitive Democratic primaries for PSC in Metro Atlanta.
- Democrats will have a few less statewide seats to compete for on the primary and general election ballot. Maybe that will help them focus on competing for 8 statewide executive seats and U.S. Senate, though.
- Like, how do North Carolina Democrats, competing for U.S. Senate and 10 statewide executive seats, have such a better time competing for statewide executive elections than Georgia Democrats?
- Possible that service on the PSC could me a springboard for higher office, since the PSC (currently) has larger districts than congressional or legislative districts. However, unlike Louisiana, this has not been the case for past GA PSC members. To date, only one GAPSC member has been subsequently elected governor. Those who retire early from the GAPSC often get jobs in the private sector.
- There is still the possibility that the PSC could be moved from elected to appointed. In such a case, I would still see the silver lining of a stronger focus on 1+8 statewides.
- Maybe this should be a time to enact stronger ethics and professional safeguards for this office.
What implications could this have for other cases?
There is a VRA case from Mississippi challenging the election of their State Supreme Court. While it’s not statewide, the current system requires that 3 justices each are elected at-large from only three districts (which also concurrently serve as the districts for their three-member Public Service Commission). As a result, only four African-Americans have ever served on the State Supreme Court in its history. With this ruling from Georgia, I wonder how this Mississippi ruling will play out.
Rose could also allow someone to challenge Alabama’s statewide at-large PSC elections. Alabama has seven statewide executive officers not including the three PSC members, but also a large Black population. Let’s see.
