Federal Appellate Court Upholds Georgia PSC Election Law

On November 24, after several long months of deliberation, the 11th Circuit Court of Appeals upheld Georgia’s election laws that provide for five statewide elected Commissioners on the Georgia Public Service Commission.  This ruling overturned a lower court decision that previously held that PSC Commissioners must be elected by district (currently the districts exist for residency purposes only) because Georgia’s current statewide election law for Commissioners dilutes Black votes in violation of federal law.   

The lower court decision has led to substantial confusion and delay with regard to elections of sitting PSC Commissioners.  Commissioners Tim Echols and Fitz Johnson were supposed to stand for election in 2022 – Commissioner Echols running for re-election to a full six-year term and Commissioner Johnson running to fill out the final two years of the term of former PSC Commissioner Chuck Eaton.  The United States Supreme Court held in the Fall of 2022 that those elections could not go forward in November of that year given the status of the litigation and the proximity of the election. 

We hope to hear soon when the elections will be held for the seats of Commissioners Echols and Johnson.  It appears the plaintiffs in the federal litigation have requested that the United States Supreme Court accept certiorari, which means to hear an appeal from the 11th Circuit’s decision (the Court is not required to take the case).   

Our latest intelligence is that Georgia officials are hoping the Supreme Court will rule quickly and the elections can be set.  One possibility originally considered was to conduct them in concert with Georgia’s presidential preference primary on March 12, 2024, but our understanding is that this idea has been discarded due to the advance deadlines for preparing ballots for early voting including military personnel stationed overseas.  Governor Kemp has the authority to set a special election at some point in the later Spring or Summer.  Finally, it is possible that these two seats will be placed on the 2024 general election ballot, when Commissioner Tricia Pridemore will be standing for re-election.  This would result in the unusual situation of three of the five PSC seats appearing on the November ballot. 

We will keep you updated as we learn more.  Please note that incumbent PSC Commissioners are not allowed to raise campaign funds during any Session of the General Assembly, although their opponents can do so.  The 2024 Session begins on January 8 and likely concludes in late March or early April.