Why Georgia's utility regulators aren't on Tuesday's ballot

Georgia voters will choose a governor, a senator, and a slew of other key positions in Tuesday’s election. But two important races are not on the ballot: seats on the state’s Public Service Commission. A Voting Rights Act lawsuit stopped the election – and could change how Georgians choose commissioners.

John Bazemore / Associated Press

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Georgia voters will choose a governor, a senator, and a slew of other key positions in Tuesday’s election. But two important races are not on the ballot: seats on the state’s Public Service Commission. A Voting Rights Act lawsuit stopped the election – and could change how Georgians choose commissioners.

The Public Service Commission isn’t terribly flashy or high-profile. And its elections don’t generate the kind of endless TV ads and daily headlines that a race for governor or senator does.

But the commission plays a role in most Georgians’ lives: it determines how much Georgia Power customers pay for electricity, and where that electricity comes from. In fact, the five commissioners are considering a big rate hike right now

“I think it’s bad, this is a bad time for us to try and raise rates,” Reverend Christopher Johnson told commissioners at a recent rate hearing. He said that many people are still struggling from the pandemic. “Please, please, please, it’s in the hands of the Public Service Commission at this time not to raise the rates on Georgians.”

Civil rights activists say the commission often doesn’t listen to voices like Johnson’s. They’ve sued the state over how Public Service Commission elections work, arguing they violate the Voting Rights Act. A federal judge agreed, and ordered the races for the two seats that were up for election this year to be taken off the ballot. 

A hybrid system

PSC elections are unusual: candidates have to live in specific districts, but the actual votes are statewide.

“It sometimes is viewed as being kind of a halfway house between a pure at-large system and a pure districting system, so that you have some distribution of where your representatives come from,” said UGA politics professor Charles Bullock. “So they’re spread around the state somewhat. But then they are answerable to a broader constituency.”

Some cities use a similar arrangement, Bullock said, but it’s not common at a state level.

Democrat Terry Coleman designed this system when he was Speaker of the Georgia House in the late 90s. At the time, he said, lawmakers wanted to figure out “how we could make sure that places outside of the metro areas had representation.”

Coleman said the statewide election makes sense for the unique job the commission does regulating a statewide industry that has local impacts.

But the lawsuit brought by civil rights and environmental activists argues that because commissioners are chosen by a statewide vote, they don’t really represent the people in their local district. 

“Representation matters,” said plaintiff Brionté McCorkle, executive director of the group Georgia Conservation Voters. “It’s the most important thing to have at least one person on the commission that represents the unique and particularized needs of your district.”

She said the commission’s decisions have an outsize impact on Black ratepayers. They tend to have lower incomes and face a higher energy burden – meaning more of their income goes toward energy bills.

“They have a unique set of interests; they feel this differently,” McCorkle said. “And they could not get one person elected, not one person in a commission of five people, that really intuitively understood that because they are from that community, and they live in that community and they organize and they network and are accountable to that community.”

The lawsuit says those hard-hit Black ratepayers don’t have representation on the commission because the system dilutes their votes. Expert testimony in the suit showed that in past PSC elections, Black voters generally agreed on a candidate – and that candidate consistently lost. 

Only one Black commissioner has ever been elected. Fitz Johnson, who is Black, currently serves on the commission. He was appointed By Governor Brian Kemp after his predecessor stepped down early. Johnson, whose district includes Atlanta, would have been up for election this year. 

Race or politics

Backers of the current system just don’t buy that race is the core issue.

“What the hell difference – whether it’s a Black or white or a brown person representing them,” said Coleman. “That argument doesn’t work. And I resent the fact that they say it dilutes Black votes, they’re poor white votes and poor other people.”

He pointed to the election of Sen. Raphael Warnock, who he said he supports, as proof that a Black Democrat can win a statewide race in Georgia.

Adam Kincaid is Executive Director of the National Republican Redistricting Trust, which has sided with the state in the lawsuit. He said the case is about politics, not race; all five of the current commissioners are Republicans.

“What they’re really arguing for is an opportunity for Democrats to have a district in metro Atlanta versus, you know, having a minority candidate have the opportunity to be elected to the Public Service Commission,” Kincaid said.

This distinction is key. Section two of the Voting Rights Act bans voting discrimination based on race, while the U.S. Supreme Court has held that redistricting that makes an election favor one party is allowed.

Partisan redux

So far, a judge has agreed with the plaintiffs. The state is appealing. If the current ruling stands, the legislature will have to develop a new system – which could lead to a special election.

The potential re-engineering of PSC elections comes at an interesting time in Georgia politics, Bullock said, because it will be up to a Republican-controlled legislature at a time when the state has started shifting toward Democrats.

“You might look at that and say, ‘gee, let’s redraw the maps here to make it more Republican friendly,’” he said.

The last time these elections changed, when Coleman was Speaker of the House, Democrats held the statehouse but the partisan winds had started to blow the other way. 

“This happened at a time when Democrats were desperately trying to hold on to their majorities,” Bullock said. “It’s the kind of situation we’re now seeing Republicans engaged in.”

If the legislature does end up designing a new system, McCorkle said she and her fellow plaintiffs will be watching the process closely.

“I think they have the power, the authority, the ability, and, you know, the moral cover to do the right thing here and just let people elect commissioners that truly represent them,” she said. “If they try to, you know, create a remedy that’s a violation of the law, that’s a violation of the Voting Rights Act, yes, we will absolutely challenge it again.”

This all hinges on the outcome of the appeals process. Oral arguments in the Eleventh Circuit US Court of Appeals are scheduled next month.

And in the meantime, no public service commissioners are facing reelection before they vote on raising rates.