On December 18, 2023, the Eleventh Circuit halted imposition of its recent opinion issued on November 24, 2023, that would have allowed elections for Georgia’s Public Service Commission (PSC) to proceed using a method of electing PSC commissioners that a lower court had found violated the Voting Rights Act of 1965.  The Eleventh Circuit’s November 24 opinion reversed a District Court’s order finding that the way Georgia elects its Public Service Commissioners — on a statewide, at-large basis — was discriminatory to African American voters. The Eleventh Circuit’s opinion disagreed with the lower court and found that this electoral format chosen by state legislators protected “critical policy interests” and that the plaintiffs failed to offer “a satisfactory remedial plan” that would retain those policy interests.  

The 2022 PSC elections had been postponed after the U.S. Supreme Court vacated a stay issued by the Eleventh Circuit that would have allowed the elections to proceed as scheduled despite the District Court’s ruling that the process for electing PSC commissioners unlawfully diluted the votes of Black Georgians.  Now, those elections may be on hold once again due to a one-line order issued by the Eleventh Circuit on December 18, which states, “A judge of this Court withholds issuance of the mandate in this appeal.”  The effect of this order is that the Eleventh Circuit’s opinion reversing the District Court and reinstating at-large elections for PSC commissioners will not yet become final.

The plaintiffs in this case had previously filed a motion asking the Eleventh Circuit to stay its mandate pending further appeal to the U.S. Supreme Court.  That motion was denied on the same day as, and just prior to, the December 18 order stating that an Eleventh Circuit judge had withheld issuance of the opinion’s mandate.  

Although the plaintiff’s requested stay was denied, these PSC elections will nonetheless remain in limbo until the Eleventh Circuit’s November 24, 2023, decision has been revisited, potentially en banc with all the judges of the Eleventh Circuit weighing whether to (a) reissue the opinion that reversed the District Court and paved the way for the at-large elections of PSC commissioners to proceed, or (b) affirm the District Court’s finding that at-large elections for Georgia’s PSC commissioners unlawfully dilutes the votes of Black Georgians in violation of the Voting Rights Act of 1965.

The attorneys at Chilivis Grubman represent clients of all types and sizes in connection with campaign finance and election law.  If you need assistance with such a matter, please contact us today.