On the Eve of Merrill v. Milligan, a Voting Rights Act Section 2 Case to Watch in Georgia
October 24, 2022
By Rebecca Stekol
Uncertainty clouds the future of the Voting Rights Act Section 2 due the upcoming vote dilution case before the Supreme Court in October 2022, Merrill v. Milligan. Some worry that the Supreme Court will embrace Alabama’s argument“regarding race-neutral principles in redistricting” and render Section 2 vote dilution claims much more difficult. In the meantime, however, Georgia faces its own Section 2 litigation in Rose v. Raffensperger. The docket already tells a convoluted tale. In the broader context of Georgia’s polarized election climate following the 2020 election, including the passage of the controversial Senate Bill 202 enacted in 2021, the outcome of this case has the potential to fuel more controversy or foreshadow the future of election administration in the state.
The crux of Rose v. Raffensperger is a challenge to the at-large method of electing members of Georgia’s Public Service Commission. The Commission has “exclusive power” to decide fair and reasonable rates for services under its jurisdiction,” including services stemming from the electricity, natural gas and telecommunications industries. Commissioners have been chosen by statewide election since 1906; although elected at large, Commissioners are required to reside in one of five Public Service Commission districts. In their complaint, Plaintiffs contended that “staggered terms, a majority-vote requirement, and unusually large voting districts” enhance the opportunity for discrimination against Black voters. Their main claim is that the at-large method of electing members of the PSC dilutes Black voting strength because the percentage of districts in which Black voters constitute an effective majority is less than the percentage of Georgia’s Black voting-age population. According to the plaintiffs, the results don’t lie: in Georgia’s history, there have only been two Black public service commissioners, and they were appointed by the governor to fill vacancies before being elected.
The District Court addressed what it described as a “novel question” of whether there can be vote dilution when the challenged election is held on a statewide basis. On August 5, 2022, Judge Grimberg held that “this method of election unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act,” permanently enjoining Secretary Raffensperger from preparing ballots for the November 8, 2022 election that include contests for PSC Districts 2 and 3 and from administering any future elections using the statewide, at-large method. He noted that “while delaying elections … until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”
As is usually the case for contentious Voting Rights Act issues, the tale did not end there. Secretary Raffensperger moved for a stay pending appeal of the district court’s order, which the Eleventh Circuit granted on August 12. The Court heldthat the district court’s order violated Purcell v. Gonzalez and its progeny, which prohibits district courts from altering the election rules in the period close to an election. The Court concluded that the district court’s issuing of the permanent injunction about three months before the election is “sufficiently close at hand” under recent precedent articulated in League of Women Voters of Florida v. Florida Secretary of State. In addition, the Court noted that postponing the elections for Districts 2 and 3 and keeping the existing Commissioners as “holdovers” until single-member voting is implemented “fundamentally alters the nature” of the upcoming elections under RNC v. DNC.
On August 19, the Supreme Court issued a one-paragraph order reversing the Eleventh Circuit’s judgment and vacating the stay. According to Wiley Rein’s Jeremy Broggi, three points can be drawn from the Court’s reasoning. First, the Supreme Court may agree that a Purcell defense is waivable. Secretary Raffensperger waived a Purcell-based appeal, but the Eleventh Circuit still applied it. Second, the Supreme Court declined to apply Purcell “mechanistically” like the Eleventh Circuit did when it applied Purcell because the election was three months away. Third, the Supreme Court focused on equitable considerations, indicating that Purcell is a “rule of reason reflecting concerns about the potentially disruptive consequences of judicial tinkering with election rules.” For instance, the record as it stands contains no evidence that the injunction would cause voter confusion, calling the necessity of a stay into question. Therefore, the Supreme Court directed the Eleventh Circuit to reconsider whether the stay is appropriate “subject to sound equitable discretion.” That is where the tale ends, for now.
The reactions to the ongoing litigation have been mixed. On one hand, James Woodall, the President of the Georgia NAACP, stated that it is imperative for state regulators to “better address the racial inequity of Black households paying a significantly higher percentage of their income on utilities.” Having more Black-supported Commissioners would change “the way deliberations are had.” However, the state’s attorney Bryan Tyson has stated that socioeconomic factors such as household income are more significant factors in how spending decisions are made than race, and that “political partisanship better explains the pattern of voting dilution” than race does. Moreover, some believe that putting two PSC elections in limbo creates uncertainty and frustration for candidates and voters alike; such a prolonged legal affair might even discourage voter turnout, writes local journalist Marc Hyden.
Of course, at the backdrop to this twisted tale of litigation is how the potential gutting of Section 2 after Merrill v. Milligan will shape claims like these. For now, we are at a cliffhanger as we await more Supreme Court decisions.