It stands to reason that if we forgot to hold an election, it would be a race for a seat on the Public Service Commission. That’s not exactly what has happened in Georgia, but it’s too close for comfort.
This month marks a year since elections were due to be held for two of the five seats on the PSC. These elections ran into a judicial briar patch.
Several groups filed a Voting Rights Act case claiming that the way Georgia elects its commissioners unfairly dilutes African-American voting strength. Candidates are required to live in one of five districts but are elected by a statewide vote.
Federal Judge Steven Grimberg ruled that this system violated the Voting Rights Act and ordered that the two upcoming PSC elections be taken off that year’s ballot and a new system devised. The 11th U.S. Circuit Court of Appeals granted Secretary of State Brad Raffensperger’s appeal for a stay of Grimberg’s order, but the U.S. Supreme Court put it back into effect and directed the 11th Circuit to take a second look at the case.
The appeals court had a hearing on the case last December, and since then, crickets. Tim Echols and Fitz Johnson, the two Republicans who would have been up for re-election last year, have continued to serve on the commission, their next encounter with the voters still up in the air.
Bryan Sells, the attorney representing the plaintiffs, said last week the court has remained silent regarding the case, but with the General Assembly set to convene a special session to deal with the rejection of its congressional and legislative maps, the timing may be right for movement on the case.
“I’d be surprised if we don’t have a ruling by Thanksgiving,” Sells said.
One of several ironies about this case is that the system that the Republican secretary of state is defending was a last-gasp effort to hang on to the old rural Democratic base devised by House Speaker Terry Coleman in the late 1990s. The idea was that splitting the state into regions and requiring commissioners to live in them would give Democrats out in the state more opportunities for office. Before that time, candidates had run statewide with no residency requirement.
Dividing the state into five parts serves no particular purpose besides what the Democrats intended a quarter-century ago, and that turned out to be a catastrophic failure. Republicans now hold all five seats on the commission.
“If everyone in the United States got to vote on who Georgia’s U.S. Senators would be, I don’t think anyone would think that the system was fair to Georgians. But Georgia has that type of system for choosing who regulates public utilities,” Judge Robin Rosenbaum, who served on the three-judge panel that overruled Grimberg, wrote in a dissenting opinion last year.
That assumes that each of the five districts resembles a state in some way. If they don’t, what are they?
The pointlessness of this system for choosing who rules on electrical rates and other utility issues may be part of the reason for the 11th Circuit’s long silence since the U.S. Supreme Court gave its marching orders. This is a case that may be cited for decades. And the judges who decide it are likely to be tormented by the old adage that hard cases make bad law.
Meanwhile, the PSC is facing one of the most important decisions it’s ever going to make on how much ratepayers will be expected to shoulder the cost of the Plant Vogtle nuclear expansion. It’s showing no signs of slowing down to let the court catch up with it.
Two groups, Georgia WAND and Nuclear Watch South, asked the commission to postpone hearings this fall ahead of the decision on Vogtle. The PSC denied the request because the two groups filed it four days before its meeting, while Georgia Power requested the hearings back in August.
Even so, the idea of this momentous issue being decided in part by Echols, whose term has expired, and Johnson, who was appointed but hasn’t had to run for election, is jarring. Or it should be. Remember, we’re just talking about the PSC.