Richard Rose v. Secretary, State of Georgia

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dn the

United States Court of Appeals

For the Eleventh Circuit

No. 22-12593

RICHARD ROSE,

an individual,

BRIONTE MCCORKLE,

an individual,

WANDA MOSLEY,

an individual,

JAMES MAJOR WOODALL,

Plaintiffs-Appellees,

versus

SECRETARY, STATE OF GEORGIA,

Defendant-Appellant.

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2 Order of the Court 22-12593

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-02921-SDG

Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill

Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher, Circuit

Judges.*

BY THE COURT:

A judge of this Court having requested a poll on whether this ap-

peal should be reheard by the Court sitting en banc , and a majority

of the judges in active service on this Court having voted against

granting rehearing en banc, the Court sua sponte ORDERS that

this appeal will not be reheard en banc.

* Judge Abudu recused herself and did not participate in the en banc poll.

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1 BRANCH J., respecting denial 22-12593

BRANCH, Circuit Judge, respecting the denial of rehearing en banc,

joined by GRANT, Circuit Judge:

A majority of the Court has voted not to rehear this case en

banc. Although our opinion speaks for itself, see Rose v. Secretary,

State of Georgia, 87 F.4th 469 (11th Cir. 2023), I write to respond to

the dissentals on four points.!

I begin with a brief background of this case. In Rose, plain-

tiffs challenged Georgia’s statewide, at-large elections for members

of the Public Service Commission (“PSC”)*—a quasi-judicial and

quasi-legislative body—under Section 2 of the Voting Rights Act

(“VRA’). Plaintiffs brought the instant lawsuit to challenge Geor-

gia’s system of statewide PSC elections. They alleged that

statewide elections diluted their votes in violation of Section 2 of

| note that the Supreme Court recently declined to take up this case by deny-

ing a petition for writ of certiorari. See Rose v. Raffensperger, No. 23-1060, 2024

WL 3089563 (U.S. June 24, 2024).

2 The PSC is a Georgia constitutional body that dates back to 1879. Its quasi-

judicial duties including hearing utility rate cases, holding hearings, listening

to witnesses, making evidentiary rulings, and weighing testimony of stake-

holders. Its quasi-legislative duties include setting utility rates, controlling per-

mitting for power plant construction, and regulating pole attachments and

landlines for communications. Since 1906, PSC Commissioners (and their pre-

decessors on the Railroad Commission), have been elected statewide to stag-

gered six-year terms. In the over 100 years since Commissioners began being

elected, there has only been one change to PSC elections: in 1998, the Georgia

General Assembly created a five-district system with a residency requirement

which remains in place today. Under this system, PSC commissioners must

live in one of five districts, but they are still elected statewide and serve the

entire state.

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2 BRANCH J., respecting denial 22-12593

the VRA because black voters consistently have been unable to

elect their preferred candidate over the voting strength of white

voters across Georgia. The district court granted partial summary

judgment to plaintiffs, finding that they had satisfied the Gingles'

preconditions, and set the case for trial. After a five-day bench trial,

the district court found that under Gingles’ totality of the circum-

stances test, Georgia’s statewide elections for PSC commissioners

diluted the strength of black voters in violation of Section 2. Thus,

it permanently enjoined the Secretary from carrying out PSC elec-

tions under the statewide method. The district court also deter-

mined after the trial that the plaintiffs’ only proposed remedy—chang-

ing the PSC from a statewide body into a body comprising single-

member districts—was viable. The Secretary appealed.

On appeal, we unanimously found that the district court had

committed an error of law by failing to properly apply our prece-

dent regarding the first Gingles precondition. Specifically, we held

that the district court erred because plaintiffs had “failed to propose

a viable remedy and [could not] satisfy the first Gingles precondi-

tion[{.]” Rose, 87 F.4th at 486. We so held because plaintiffs’ pro-

posed remedy of single-member districted elections would funda-

mentally alter the PSC’s statewide structure and operations. Id. at

482-86.

With this background in mind, I now turn to the dissentals’

issues with our opinion.

3 Thornburg v. Gingles, 478 U.S. 30 (1986).

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3 BRANCH J., respecting denial 22-12593

First, Judges Wilson and Rosenbaum argue that we misap-

plied Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994) (en banc), and its

progeny because in their view, these cases should apply to judicial

elections only. Not so. While our opinion recognized that these

cases involved judicial elections, Rose, 87 F.4th at 484-85, we em-

phasized that their core teachings—forbidding courts from abol-

ishing a state’s chosen form of government and giving strong

weight to this choice at the first Gingles precondition—have wider

applications. Id. Indeed, as our opinion explained, Nipper empha-

sized that “[n]jothing in the [VRA] suggests an intent on the part of

Congress to permit the federal judiciary to force on the states a new

model of government,” Nipper, 39 F.3d at 1531, and accordingly, a

court “must determine as part of the Gingles threshold inquiry

whether it can fashion a permissible remedy in the particular con-

text of the challenged system.” Rose, 87 F4th at 475 (quotations

omitted). Nothing about these principles is limited to judicial elec-

tions only. And even if these principles were so limited, the PSC at

issue in this case is a quasi-judicial body that “hears rate cases, holds

hearings, listens to witnesses, makes evidentiary rulings, and

weighs testimony from stakeholders.”* Id. at 473.

4 Judges Wilson and Rosenbaum attempt to distinguish the PSC from the trial

judges at issue in the Nipper line of cases by arguing that those cases were

“grounded in independent nature of the judicial role” whereas the PSC “oper-

ate[s] as a collegial body that makes decisions through majority rule.” Judge

Rosenbaum further argues that PSC commissioners are elected in partisan

elections, whereas Georgia's elections of judges are non-partisan. But these

distinctions are unconvincing. Many judicial bodies operate in a collaborative

manner and not every state in the Eleventh Circuit elects its judges in a non-

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4 BRANCH J., respecting denial 22-12593

Second, Judge Wilson faults us for not reaching the totality

of the circumstances analysis because we determined at the first

Gingles precondition that plaintiffs had not met their burden of pro-

posing a viable remedy within Georgia’s chosen form of govern-

ment. Judge Wilson asserts that we “functionally renderjed] the

preconditions exhaustive” in contravention of the Supreme Court’s

decision in Johnson v. De Grandy,’ which in his view “will deny many

future plaintiffs meaningful review of their [Section] 2 challenges.”

Judge Wilson fundamentally misunderstands De Grandy, Nipper,

and our opinion in Rose.

In De Grandy, the Supreme Court held that while the three

Gingles preconditions are necessary, they are not sufficient standing

alone to prove a Section 2 claim. Id. at 1009-13. In Nipper we noted

that this decision “resolved any doubt as to the threshold nature of

the Gingles factors.” Nipper, 39 E.3d at 1513 (emphasis added).

When a plaintiff cannot satisfy these preconditions, we need not

reach the totality of the circumstances analysis. See Wright v. Sumter

County Board of Elections & Registration, 979 F.3d 1282, 1288 (11th

Cir. 2020) (“[OJnce all three Gingles requirements are established,

partisan manner. For example, Alabama conducts partisan elections for its

judges, Butler v. Alabama Jud. Inquiry Comm’n, 802 So. 2d 207, 214 (Ala. 2001),

and state appellate courts, which are collegial, multi-member bodies, are often

(although not always) elected statewide. If the dissentals’ distinctions were

accepted, Section 2 could be used to force states to draw their intermediate

appellate and State Supreme Court judges into single member districts, thus

reconfiguring their entire State court systems.

5512 US. 997 (1994).

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5 BRANCH J., respecting denial 22-12593

the statutory text directs us to consider the totality of the circum-

stances to determine whether members of a racial group have less

opportunity than do other members of the electorate.” (quotations

omitted)). Because we, in Rose, assessed the plaintiffs’ remedy at

the first Gingles precondition stage, as Judge Wilson admits was re-

quired, we gave Georgia's interest in maintaining its chosen form

of government the weight it was due and “reaffirm[ed] the princi-

ple that plaintiffs must propose a remedy within the confines of

the state’s chosen model of government” when bringing a vote di-

lution claim. Rose, 87 E4th at 484. And because we held that the

plaintiffs failed to satisfy the first Gingles precondition, we were not

required to proceed to the totality of the circumstances analysis.

Thus, contrary to the dissentals’ views, future Section 2 plaintiffs

will merely need to continue to satisfy the preconditions to prevail

on their claims, a requirement which has been in place for decades.°

Third, Judge Wilson asserts that we did not sufficiently en-

gage with cases where this Court has upheld Section 2 challenges

to at-large elections for multi-member administrative bodies, like

° Judge Rosenbaum reads our opinion as suggesting that if we had conducted

a totality of the circumstances analysis we would have found no vote dilution

based solely on the State’s policy interests. She is incorrect. Instead, we simply

pointed to other circuits which, despite evaluating the remedy at the totality

of the circumstances stage, recognize the critical nature of the proposed rem-

edy. Accordingly, we noted “in cases like this one, where plaintiffs offer only

a single, dramatic remedy . . . it makes no difference whether a claim fails for

the lack of a permissible remedy at the precondition stage or after the totality

of the circumstances analysis.” Rose, 87 F.4th at 475-76 (emphasis added). But

our analysis stayed at the precondition stage.

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6 BRANCH J., respecting denial 22-12593

the school board at issue in Wright.” He asserts that these cases

demonstrate “that, even when a state has an important interest in

maintaining an electoral system, this interest is not outcome deter-

minative.”* Judge Wilson again misses the mark. For starters, we

7 Similarly, both Judges Wilson and Rosenbaum express concern that our anal-

ysis was influenced by our determination that this case was novel in that it

dealt with a challenge to elections for a statewide body as opposed to county

or municipal bodies. Judge Rosenbaum in particular takes issue with this de-

termination, asserting that “[nJeither Plaintiffs’ claim nor their proposed rem-

edy is ‘novel.”” It is true we referred to the novel nature both of plaintiffs’

challenge and proposed remedy. Our opinion, however, was based entirely

on the impermissibility of plaintiffs’ proposed remedy. Rose, 87 F.4th at 480

(noting that “plaintiffs cannot satisfy the first Gingles precondition because

their novel application of Section 2 relies on a remedy that is not viable” and

their “novel proposal is that we dismantle Georgia’s statewide PSC system and

replace it with an entirely new districted system.”). Further, I note that the

Supreme Court and the Fourth Circuit rejected a unique Section 2 challenge

because the proposed remedy was not viable. See Holder v. Hall, 512 U.S. 874,

(1994), infra at 9; Baten v. McMaster, 967 F.3d 345, 360-61 (4th Cir. 2020) (re-

jecting a Section 2 challenge to South Carolina’s winner-take-all method of

selecting presidential electors because “[t]he relevant geographic area for the

selection of president [electors [was] the entire State” and thus “there [was]

no alternative of a ‘single-member-district’”).

§ In a similar vein, Judge Rosenbaum argues that we “effectively overrule[d]

Gingles” by “disregard[ing] decades of binding precedent” and making “the

state’s interest in maintaining its existing electoral system dispositive.” As dis-

cussed above, Judge Rosenbaum is wrong for the same reasons as Judge Wil-

son, namely a state’s interest is not outcome determinative; rather the plaintiff

is required to propose a remedy within the confines of a state’s chosen model

of government. And while Judge Rosenbaum believes that single-member

districts would be an allowable remedy in this case because it is the default

remedy for vote dilution claims, such a remedy “do[fes] not map onto the type

of challenge that the plaintiffs have mounted here” because “[t]he relevant

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7 BRANCH J., respecting denial 22-12593

did not hold in Rose that a state’s interest was outcome determina-

tive. Indeed, we explicitly rejected such a reading of our opinion

by stating “[w]Je do not mean to suggest that Section 2 plaintiffs

could never prevail when asserting a Section 2 vote dilution claim

against a statewide body” and instead were “merely reaffirm[ing]

the principle that plaintiffs must propose a remedy within the con-

fines of a state’s chosen model of government” when bringing Sec-

tion 2 claims. Id. Furthermore, we explained that a state’s provin-

cialism concerns are much greater for statewide bodies like Geor-

gia’s PSC than county administrative bodies, like the school board

at issue in Wright because “there is much greater potential for divi-

sive problems to arise across an entire state . . . and the pertinent

issues are more likely to be large-scale with huge significance.” Id.

at 483. And while Judge Wilson takes issue with the discussion of

these provincialism concerns because PSC commissioners are re-

quired to live in one of five statutorily defined districts, State law

makes clear that their constituency is the State as a whole and they

perform statewide functions, unlike the school board members in

Wright. Thus, far from not engaging with cases like Wright, our

opinion distinguished cases involving elections of county adminis-

trative bodies with those involving elections of statewide bodies

like the PSC at issue here. °

geographic area for the selection of [PSC commissioners] is the entire State.”

Baten, 967 F.3d at 360-61.

° Judge Wilson asserts that “[t]he inconsistent nature of our precedent’s treat-

ment of state interests” in Wright and Nipper warrants further en banc review.

But there is no inconsistency. Building on Supreme Court precedent, the en

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8 BRANCH J., respecting denial 22-12593

Finally, Judge Wilson asserts that “[t]he injection of federal-

ism in the context of voting rights is a problematic ‘recent vin-

tage.” Yet, the Civil War Amendments and the VRA cannot be

understood except by reference to federalism principles. Indeed,

the Civil War Amendments altered our constitutional design, and

the VRA enforces the Fifteenth Amendment. Shelby Cnty., Ala. v.

Holder, 570 U.S. 529, 536 (2013). Accordingly, the VRA must be read

in light of this legal context. See id. at 534-35. When doing so, we

see that the Civil War Amendments and the VRA changed the re-

lationship between state and federal governments according to

their terms, and no more. As the Supreme Court has recognized,

even “the Fourteenth Amendment does not override all principles

of federalism.” Gregory v. Ashcroft, 501 U.S. 452, 469 (1991). Fur-

thermore, as explained in our opinion, federalism principles under-

gird Nipper, which made clear that the VRA does not “permit the

banc Nipper court made clear that “[t]he inquiries into remedy and liability . .

. cannot be separated” and therefore a court “must determine as part of the

Gingles threshold inquiry whether it can fashion a permissible remedy in the

particular context of the challenged system.” Nipper, 39 F.3d at 1530-31. The

Wright court fully recognized this requirement. Wright, 979 F.3d at 1302-03.

Furthermore, courts must evaluate a state’s interests both at the precondition

stage and, if the preconditions are met, again at the totality of the circum-

stances stage. Nipper, 39 F.3d at 1542. And while in many cases a state’s inter-

est will have “minimal relevancy in the totality of the circumstances analysis”

those interests can “play[] a major role” in evaluating the viability of a pro-

posed remedy. Id. In the instant case, Georgia’s interests in preserving a

statewide PSC played such a role at the precondition stage.

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9 BRANCH J., respecting denial 22-12593

federal judiciary to force on the states a new model of govern-

ment.” Nipper, 39 F.3d at 1531.

And the Nipper court did not go out on a limb in considering

federalism principles in reaching its holding. Instead, it followed

the Supreme Court’s lead. In Holder v. Hall, the plaintiffs brought a

Section 2 lawsuit challenging the size of a single-member county

commission, arguing that their proposed remedy—a five-member

county commission elected by single-member districts—should

serve as the benchmark for the district court to compare the alleged

dilution. 512 U.S. 874, 881 (1994). The Supreme Court held that

“there [was] no principled reason why one size should be picked

over another as the benchmark for comparison.” Id. The Nipper

court recognized that implicit in Holder was the principle that fed-

eral courts “may not alter the state’s form of government itself

when [plaintiffs] cannot identify a ‘principled reason why one [al-

ternative to the model being challenged] should be picked over an-

other as a benchmark for comparison.” Nipper, 39 F.3d at 1532.

(second brackets in original) (quoting Holder, 512 U.S. at 881). As

in Holder, the plaintiffs here failed to provide a principled reason for

selecting a PSC comprising single-member districts as opposed to a

statewide PSC as the benchmark. Accordingly, they failed to pro-

vide a viable remedy resulting in a failure to satisfy the first Gingles

precondition.

For these reasons, we did not err in reversing the district

court’s decision.

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22-12593 WILSON, J., Dissenting 1

WILSON, Circuit Judge, dissenting from the denial of rehearing en

banc, joined by ROSENBAUM and JILL PRYOR, Circuit Judges:

The Voting Rights Act strives to realize “an America defined

by pluralism, where everyone's voice is heard, everyone’s vote is

counted, and everyone’s interests are represented.”! It is consid-

ered to be “the most successful civil rights statute in the history of

the Nation,” Allen v. Milligan, 599 U.S. 1, 10 (2023) (quotation omit-

ted), and its continued success hinges on the good faith enforce-

ment of its most litigated provision. Section 2 provides a necessary

mechanism for challenging state and local electoral schemes that

deny voters equal participation in the political process to elect rep-

resentatives of their choice. See 52 U.S.C. § 10301. In its reversal

of the district court’s well-reasoned opinion, the panel improperly

narrows § 2, eroding the guarantees of the Voting Rights Act. Ac-

cordingly, I dissent from this court’s refusal to rehear this case en

banc.

I.

I begin with our primary authority for evaluating § 2 voter

dilution challenges. The Supreme Court “has long recognized that

multimember districts and at-large voting schemes may operate to

minimize or cancel out the voting strength of racial minorities in

the voting population.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986)

(internal quotations omitted and alteration adopted). The Court

has faithfully applied Gingles “in one § 2 case after another, to

! Eric Holder, Our Unfinished March 12 (2022).

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2 WILSON, J., Dissenting 22-12593

different kinds of electoral systems and to different jurisdictions in

States all over the country.” Milligan, 599 U.S. at 19.

The Gingles Court recognized that § 2 is a limited statutory

sword, and did not disclaim at-large elections as per se violations of

minority voters’ rights. 478 U.S. at 48. Instead, the Court articu-

lated three preconditions that plaintiffs must satisfy to obtain relief

from the challenged electoral practice:

First, the minority group must be sufficiently large

and geographically compact to constitute a majority

in a reasonably configured district. ... Second, the

minority group must be able to show that it is politi-

cally cohesive. And third, the minority must be able

to demonstrate that the white majority votes suff-

ciently as a bloc to enable it to defeat the minority’s

preferred candidate.

Milligan, 599 U.S. at 18 (internal citation and quotations omitted)

(alterations adopted) (citing Gingles, 478 U.S. at 50-51). Our circuit

interprets the first Gingles precondition to implicitly require plain-

tiffs to propose a viable remedy to the challenged electoral system.

See Nipper v. Smith, 39 F.3d 1494, 1530-31 (11th Cir. 1994) (en banc).

The remedy must fall “within the confines of the state’s system of

government.” See id. at 1533.

Once a court has determined that the Gingles preconditions

are met, “the statutory text directs us to consider the totality of cir-

cumstances to determine whether members of a racial group have

less opportunity than do other members of the electorate.” League

of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425-26 (2006)

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22-12593 WILSON, J., Dissenting 3

ce

(internal quotations omitted). The Supreme Court “‘has provided

some structure to the statute’s totality of circumstances test’ by

adopting the Senate Report on the 1982 amendments to the Voting

Rights Act,” which identifies nine “Senate Factors” typically rele-

vant to a § 2 dilution claim. Wright v. Sumter Cnty. Bd. of Elections

and Registration, 979 F.3d 1282, 1288-89 (11th Cir. 2020) (quoting

Johnson v. De Grandy, 512 U.S. 997, 1010-11 (1994)). A state’s inter-

est in the electoral system is one of the nine factors considered.?

Nipper states that courts should give a state’s interest signifi-

cant weight when evaluating the viability of a proposed remedy at

the preconditions stage, and in doing so, treats this analysis as sep-

arate from a totality of circumstances analysis. See 39 F.3d at 1533.

Our decision in Davis v. Chiles similarly reviewed the state’s interest

in light of the proposed remedy, but employed the totality of the

circumstances language at the outset:

As part of any prima facie case under Section Two, a

plaintiff must demonstrate the existence of a proper

remedy. In assessing a plaintiff's proposed remedy, a

court must look to the totality of the circumstances,

weighing both the state’s interest in maintaining its

election system and the plaintiff's interest in the adop-

tion of his suggested remedial plan.

? The ninth Senate Factor is “whether the policy underlying the state or polit-

ical subdivision’s use of such voting qualification, prerequisite to voting, or

standard, practice or procedure is tenuous.” Wright, 979 F.3d at 1289 (quota-

tions omitted). It is referred to as “state interest” throughout § 2 jurispru-

dence.

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4 WILSON, J., Dissenting 22-12593

139 F.3d 1414, 1419-20 (11th Cir. 1998) (internal citations omitted).

But in Wright, we did not consider the state’s interest in assessing

the remedy as a Gingles precondition. 979 F.3d at 1302-04. Instead,

we considered the state’s interest only within our review of the to-

tality of the circumstances. Id. at 1296-97.

Here, the panel places such great weight on the state’s inter-

est at the preconditions stage that they foreclose reaching the total-

ity of the circumstances stage, where they would have weighed the

state's interest against the other Senate Factors. The inconsistent

nature of our precedent’s treatment of state interests speaks to our

need for en banc review.

II.

The Georgia Public Service Commission (PSC) is a five-

member administrative body responsible for ensuring the safety,

reliability, and affordability of utility services for Georgians. For

nearly 100 years, commissioners were elected via an at-large,

statewide vote and could reside anywhere in the state. But in 1998,

the Georgia General Assembly amended the Georgia Code to cre-

ate five PSC districts, requiring each commissioner to serve—and

reside in—their respective district for the duration of their six-year

term. Notably, commissioners continued to be elected by

statewide vote.

In this case, Plaintiffs—Black residents and voters in District

3—sued Georgia’s Secretary of State, alleging that PSC’s at-large

electoral system dilutes the strength of their vote in violation of § 2

and propose the standard remedy for § 2 violations: single-member

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22-12593 WILSON, J., Dissenting 5

districting. The Northern District of Georgia, finding that Plaintiffs

satisfied the Gingles preconditions and that a balance of the Senate

Factors compelled a finding of vote dilution, enjoined the state

from conducting future PSC elections under an at-large method.

Rose v. Raffensperger, 619 F. Supp. 3d 1241, 1260-69, 1272 (N.D. Ga.

2022). A panel of this court reversed the district court’s injunction.

Rose v. Sec’y, State of Ga., 87 F.4th 469 (11th Cir. 2023).

With that background, I begin by explaining how the panel

misapplies our precedent before turning to its improper prioritiza-

tion of federalism. But in order to frame my analysis, I must first

note my concern with how the panel’s insistence that this case is

“novel” steers its analysis. Id. at 479. Because our precedent to

date has only concerned § 2 challenges to municipal and county

elections, the panel posits that Plaintiffs’ proposed remedy to a

statewide election “asks us to wade into uncharted territory.” Id. at

479-80. However, § 2 explicitly protects voters from discrimina-

tory electoral practices by a “State or political subdivision.” See 52

U.S.C. § 10301(b) (emphasis added). Nothing in our precedent in-

dicates that its underlying reasoning and logic should be cabined to

local elections.

A.

Plaintiffs here proposed converting PSC’s statewide, at-large

elections to elections by single-member districts. They presented

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6 WILSON, J., Dissenting 22-12593

a map with one majority-Black district.’ In reviewing Plaintiffs’

proffered remedy, the district court engaged in a “fact-intensive”

inquiry and applied “‘an intensely local appraisal of the design and

impact’ of the electoral structure, practice, or procedure at issue.”

See Nipper, 39 F.3d at 1498 (quoting Gingles, 478 U.S. at 79). The

district court noted that where the challenged system is at-large

voting, single-member districting is the “standard remedy,” and

that Georgia's Secretary of State conceded that there was nothing

“facially problematic” with Plaintiffs’ proposed map. Rose, 619 F.

Supp. 3d at 1269-70. The district court concluded that single-mem-

ber districts were a viable remedy.

The panel reasons that Plaintiffs have not proposed a viable

remedy because the identified remedy “would upset Georgia’s pol-

icy interests that are afforded protection by federalism and our

precedents.” Rose, 87 F.4th at 479. This reflects a misunderstand-

ing of circuit law for the following reasons.

* * *

In Nipper, this court, sitting en banc, struck down a § 2 chal-

lenge of at-large elections of judges in Florida’s Fourth Judicial Cir-

cuit. 39 F.3d at 1546-47. Nipper established a requirement that

plaintiffs must propose a viable remedy‘ to meet the first Gingles

’ Under the proposal, District 1 would cover Clayton, DeKalb, Fayette, and

part of Fulton, Henry, Newton and Rockdale Counties. This proposed Dis-

trict 1 overlaps significantly with existing PSC District 3.

4 Nipper drew from the Supreme Court’s decision in Holder v. Hall, 512 U.S.

874, 880-881 (1994), to find that courts “cannot determine whether the voting

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22-12593 WILSON, J., Dissenting 7

precondition. Id. at 1530. We noted that the “State’s interest in

linking the jurisdictional and electoral bases of its circuit and

county court judges . . . plays a major role” in considering the plain-

tiffs’ proposed remedies. Id. at 1542. Importantly, this court pro-

vided that “[t]he maintenance of the linkage between a trial court

judge’s territorial jurisdiction and electoral base serves to preserve

judicial accountability,” while subdistricting “would disenfranchise

every voter residing beyond a judge’s subdistrict, thus rendering

the judge accountable only to the voters in his or her subdistrict.”

Id. at 1543 (emphasis added). We placed significant emphasis on

judicial independence, reasoning that the concern for disenfran-

chisement is “more pronounced [in the judicial context] because

trial court judges act alone in exercising their power,” whereas “ijn

the case of collegial bodies, all citizens continue to elect at least one

person involved in the decisionmaking process and are, therefore,

guaranteed a voice in most decisions.” Id. at 1543. We reasoned

that the “implementation of subdistricts would increase the poten-

tial for “home cooking’ by creating a smaller electorate and thereby

placing added pressure on elected judges to favor constituents.” Id.

at 1544. Florida clearly explained how the existing at-large judicial

selection process insulated judges from external pressures and fa-

cilitated impartial decisionmaking. We therefore concluded that

the proposed remedy of single-district voting would undermine

numerous, clearly identified state interests. Id. at 1546-47.

strength of a minority group has been impermissibly diluted without having

some alternative electoral structure in mind for comparison.” 39 F.3d at 1533.

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8 WILSON, J., Dissenting 22-12593

In Southern Christian Leadership Conference of Alabama v. Ses-

sions (hereinafter SCLC), this court, again sitting en banc, consid-

ered another § 2 challenge to at-large judicial elections. 56 F.3d

1281, 1285 (11th Cir. 1995) (en banc). We collectively considered

the plaintiffs’ proposed remedies against the state’s clearly identi-

fied interest in “maintaining the link between a trial judge’s juris-

diction and elective base.” Id. at 1294. One of the plaintiffs’ reme-

dial plans proposed carving existing circuits and counties into sin-

gle-member and multi-member districts. Id. at 1296. We rejected

this plan, finding that “in the context of circuit reconfiguration, sub-

districting would directly implicate the State’s linkage interest.” Id.

Our reasoning in SCLC was like that in Nipper; we maintained that

subdistricting “would strip every voter residing beyond a judge’s

subdistrict of his or her participation in the judicial selection pro-

cess—leaving [a] judge accountable only to those voters in his or

her subdistrict.” Id. at 1297. We recognized Alabama’s value of

“judicial independence,” and found that subdistricting would “un-

dermine the Alabama system of fostering an independent judiciary

by holding judges accountable to a broad section of the popula-

tion.” Id. We went on to explain that subdistricting, which creates

smaller electorates, would “increase the pressure to favor constitu-

ents,” thus “increase[ing] the specter of “home cooking.” Id. Just

as in Nipper, our consideration of a state’s interest laboriously dis-

cussed the unique demands of the judiciary.

Turning to Davis, we see an inconsistency in how our court

considers a state’s interests at both the preconditions and totality

of the circumstances stages. The panel here aptly points out that

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22-12593 WILSON, J., Dissenting 9

the Davis court acknowledged that Nipper and SCLC “placed an in-

surmountable weight on a state’s interest in preserving its consti-

tution’s judicial selection system and in maintaining linkage be-

tween its judges’ jurisdiction and electoral bases.” Rose, 87 F.4th at

481 (quoting Davis, 139 F.3d at 1423) (alteration adopted) (emphasis

added). But notably, this weight was applied for a limited and spe-

cific purpose—to preserve the particular interest states have in ju-

dicial elections. Nipper and SCLC explained why a state’s interest in

maintaining an election system is uniquely considered in judicial

contexts, i.e., the nature of the judicial role is distinct from other

elected positions and the state has a heavy interest in maintaining

judicial independence. But in Davis, we criticized Nipper and

SCLC’s doctrinal development as unworkable, noting that that “in

this circuit, Section Two of the Voting Rights Act frankly cannot

be said to apply, in any meaningful way, to at-large judicial elec-

tions.” 139 F.3d at 1424 (emphasis added).

In considering the challenge brought before us here, what

tied the Davis court’s hands should not tie ours: states do not have

the same interest in regulating elections for multi-member admin-

istrative bodies as they do the judiciary. The panel asserts that this

line of cases has “equal force here because the PSC is a ‘quasi-judi-

cial’ administrative body.” Rose, 87 F.4th at 484. While it is true

that the PSC conducts hearings and makes evidentiary rulings,

those were not the dispositive functions of the judicial bodies there.

Our decisions in Nipper, SCLC, and Davis were grounded in the in-

dependent nature of the judicial role. This case presents a funda-

mentally different situation. The panel admits that the PSC

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10 WILSON, J., Dissenting 22-12593

operates as a collective administrative body with both quasi-legis-

lative and quasi-judicial functions. Id. at 473. However, unlike

judges who adjudicate independently, decisions by the PSC are

made by the body as a whole, informed not only by constituents

but also by “a consumer affairs group that works for all five com-

missioners to field issues raised by consumers.” Rose, 619 F. Supp.

3d at 1255.

This circuit has considered, and upheld, a § 2 challenge to an

at-large system used to elect a multi-member administrative body

like the one here. See Wright, 979 F.3d at 1311. The panel cites to

Wright several times while not sufficiently engaging with its under-

lying reasoning. In Wright, we considered a § 2 challenge to a

county’s re-drawn school district map. Id. at 1287. The school

board reduced its size and restructured to include at-large seats in

what had previously been an all single-member board. A plaintiff

brought suit, claiming that these changes diluted the strength of

Black voters.’ Id. at 1288. On review, this court affirmed the dis-

trict court’s holding that the plaintiff met the three Gingles precon-

ditions and that the totality of circumstances weighed in favor of

the plaintiff. Id. at 1303, 1311. In relevant part, we affirmed the

finding that a viable remedy was available. Id. at 1303-04. And

while we did not discuss the state’s interest in considering the

> The district court originally denied the plaintiff's motion to enjoin the school

board elections and granted the county’s motion for summary judgment.

Wright, 979 F.3d at 1290. We reversed and remanded, and following a bench

trial on remand, the district court enjoined the upcoming election and drew a

new district map. Id. 1290-91. The school board appealed. Id.

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22-12593 WILSON, J., Dissenting 11

viability of the remedy, we did consider it under the totality of the

circumstances analysis. Id. at 1296-97. Importantly, we affirmed

the district court’s determination that the state’s interest in reduc-

ing the board size weighed in its favor but did not outweigh the

plaintiff's “showing through other factors that the challenged prac-

tice denie[d] minorities fair access to the electoral process.” Id. at

1297 (quotations omitted and alteration adopted). Wright demon-

strates that, even when a state has an important interest in main-

taining an electoral system, this interest is not outcome determina-

tive.

As a result, a fulsome reading of our precedent reveals two

important points. First, while it’s true that Nipper and SCLC stress

the importance of ensuring that a state’s interests are considered in

assessing the viability of a proposed remedy, these cases do not ren-

der the presence of an identifiable state interest as dispositive. Ac-

cordingly, we should have found that the district court paid appro-

priate consideration to Georgia’s interest in maintaining a

statewide electoral system. The district court noted at trial that the

Secretary failed to explain why Georgia’s method of selecting PSC

members was “thoughtfully contemplated by the General Assem-

bly, or that it otherwise furthered some concrete interest that was

documented and provable.” Rose, 619 F. Supp. 3d at 1267. The

state did not point to a policy statement or legislative history that

explained why this particular electoral mechanism makes sense for

Georgia. Id.

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12 WILSON, J., Dissenting 22-12593

Second, our precedent suggests that a state’s interest in

maintaining its electoral scheme is heavily weighed only in judicial

contexts. While our antipathy to “home cooking” is logical in lim-

ited contexts—i.e., a judge who adjudicates independently over an

entire district should not be beholden to constituents from only

one subdistrict’—it is illogical here. This precedent permits states

to justify dilutive at-large elections merely because statewide, at-

large elections allow for “insulation from localized special inter-

ests.” Rose, 87 F.4th at 483. The panel’s decision to defend this

electoral system against provincialism, see id. at 483-84, is similarly

unfounded. Each member of the commission already represents

one of five statutorily defined districts. If we accept protection

against provincialism as an overriding state interest in the context

of statewide, at-large electoral systems, then it is hard to imagine

that single-member districted elections will ever pass muster under

Gingles.

In sum, Nipper, SCLC, Davis, and Wright deploy differing

frameworks for weighing a state’s interest at the preconditions and

totality of the circumstances stages. The panel erred in acting as if

our precedent clearly resolves the question of how to consider the

state’s interest in maintaining its form of government. Further, I

am compelled to note an alarming consequence of the panel’s de-

cision. The Supreme Court dictates that the Gingles preconditions

6 “[T ]rial courts [] do not operate as collegial bodies; rather, the judges exercise

independent judicial authority, engaging in coordinated decisionmaking only

for the handling of some administrative matters.” Nipper, 39 F.3d at 1498.

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22-12593 WILSON, J., Dissenting 13

do not “exhaust[] the enquiry required by § 2.” De Grandy, 512 U.S.

at 1013. But in weighing state’s interests so heavily at the Gingles

preconditions stage, the panel functionally renders the precondi-

tions exhaustive. Their decision to do so will deny many future

plaintiffs meaningful review of their § 2 challenges. We should be

wary of this outcome as it runs directly counter to precedent and

undermines the purpose of § 2.

B.

The injection of federalism in the context of voting rights is

a problematic “recent vintage.’ In prioritizing state sovereignty,

see Rose, 87 F.4th at 481-82, the panel ignores the constitutional and

statutory framework underlying § 2 of the Voting Rights Act.

The Fourteenth and Fifteenth Amendments expressly limit

state sovereignty in the design and administration of state elec-

tions. The Fourteenth Amendment’s Equal Protection Clause en-

sures no state shall “deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV. The Fif-

teenth Amendment guarantees that the right to vote “shall not be

denied . . . by any State on account of race, color, or previous con-

dition of servitude.” U.S. Const. amend. XV. Further, both

Amendments provide that “Congress shall have the power to en-

force” the Amendments’ substantive terms. U.S. Const. amend.

XIV, cl. 5; U.S. Const. amend. XV, cl. 2. Accordingly, while we

7 Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Race, Federalism, and Voting

Rights, 2015 U. Chi. Legal F. 113, 113-14 (2015).

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14 WILSON, J., Dissenting 22-12593

have long understood that states have an important interest in reg-

ulating their elections, state sovereignty may not be “used as an in-

strument for circumventing a federally protected right.” South Car-

olina v. Katzenbach, 383 U.S. 301, 325 (1966) (quotations omitted)

(discussing the Fifteenth Amendment). Unfortunately, the panel’s

opinion permits such circumvention.

It is “not a great intrusion into state autonomy to require the

states to live up to their obligation to avoid discriminatory practices

in the election process.” United States v. Marengo Cnty. Comm’n, 731

F.2d 1546, 1561 (11th Cir. 1984). Ultimately, the panel’s preoccu-

pation with state sovereignty undermines the effectiveness of the

Voting Rights Act,’ undercutting oversight of election processes.

Il.

The Voting Rights Act is a representation of the best of

America, and a reminder of the worst of America. See Brnovich v.

Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (Kagan, J., dis-

senting). This panel’s opinion reminds us why the Act “was—and

remains—so necessary.” See id. I therefore dissent from my col-

leagues’ refusal to reconsider this case.

’Franita Tolson, Reinventing Sovereignty?: Federalism as a Constraint on the Voting

Rights Act, 65 Vand. L. Rev. 1195, 1200 (2012).

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1 ROSENBAUM, J., Dissenting 22-12593

ROSENBAUM, Circuit Judge, joined by WILSON and JILL Pryor, Cir-

cuit Judges, dissenting from the denial of rehearing en banc:

Before us is a challenge to the statewide, at-large elections

that Georgia uses for its Public Service Commission (“PSC”). In a

well-reasoned opinion following significant briefing and a five-day

bench trial, the district court concluded that these elections consti-

tute vote dilution in violation of Section 2 of the Voting Rights Act.

A panel of this Court reversed the district court’s ruling.

Rose v. Sec’y, State of Ga., 87 F.4th 469, 486 (11th Cir. 2023). In its

opinion, the panel did not disagree with the district court’s factual

findings. Nor did it disagree with the district court’s conclusion

that the existing PSC elections result in racial bloc voting that pre-

vents Black voters in Georgia from electing their preferred candi-

dates to the PSC. Instead, the panel determined that Plaintiffs’

challenge cannot succeed because their proposed remedy—a sin-

gle-member districted election—is not the same as the State’s exist-

ing electoral system. But given that the State’s existing electoral

system makes the PSC election “not equally open,” 52 U.S.C. §

10301(b), to Black voters, that’s the point.

' The Branch Statement “note[s] the Supreme Court recently declined to take

up this case by denying a petition for writ of certiorari.” See]. Branch Statement

at 1 (citing Rose v. Raffensperger, No. 23-1060, 2024 WL 3089563 (U.S. June 24,

2024)). Of course, “a denial carries with it no implication whatever regarding

the Court’s views on the merits of a case which it has declined to review. The

Court has said this again and again; again and again the admonition has to be

repeated.” State v. Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950) (State-

ment of J. Frankfurter respecting the denial of certiorari).

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2 ROSENBAUM, J., Dissenting 22-12593

The panel opinion commits several errors of law. It ignores

binding and long-standing law governing Section 2 cases. It inap-

propriately extends our precedent. And it replaces the appropriate

framework for Section 2 challenges with its own single-minded

test. In making these errors, the panel opinion severely and unlaw-

fully limits the application of Section 2 in this Circuit.

For these reasons, I respectfully dissent from the denial of

rehearing en banc.

I. The Panel Opinion erroneously frames Plaintiffs’

challenge as a novel Section 2 case.

Since 1982, Section 2 has prohibited the imposition of any

“voting qualification or prerequisite to voting or standard, practice,

or procedure . . . by any State or political subdivision in a manner

which results in a denial or abridgement of the right of any citizen

of the United States to vote on account of race.” 52 US.C. §

10301(a). A violation occurs whenever, “based on the totality of

the circumstances,” the electoral processes “in the State or political

subdivision are not equally open to participation by members” of

a racial minority.” Id. § 10301(b). To effectuate this goal of com-

batting racial discrimination in voting, Congress has charged us

with giving these provisions “the broadest possible scope.” Chisom

v. Roemer, 501 U.S. 380, 403 (1991).

Here, Plaintiffs have sued Georgia on the ground that its at-

large elections for commissioners on the PSC prevent Black voters

from electing their preferred representatives. See Thornburg v. Gin-

gles, 478 US. 30, 47 (1986). In fact, they allege that the at-large

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22-12593 ROSENBAUM, J., Dissenting 3

election system is so noxious that only one Black person has been

elected to the Commission in nearly 150 years—and that was only

after he was originally appointed.’

According to the panel opinion, Plaintiffs’ challenge presents

an exceptional issue of first impression because PSC elections are

statewide elections. See Rose, 87 F.4th at 486. The panel opinion

strikes an almost incredulous tone in emphasizing that Plaintiffs

have asked the Court to make what it calls a “novel application of

Section 2” to statewide elections “for the first time ever.” Id. at 479,

480. And the panel appears even more troubled by the so-called

“extraordinary remedy” that Plaintiffs propose—single-member

districted elections, a solution that the panel opinion chides for

“strain[ing] both federalism and Section 2 to the breaking point.”

Id. at 479, 484. So the panel opinion characterizes itself as

“wad[ing] into uncharted territory” to reject Plaintiffs’ “novel pro-

posal... that we dismantle Georgia’s statewide PSC system” and

“fundamentally change the PSC[].” Id. at 480, 482.3

2 That commissioner, David Burgess was appointed in 1999. After that, he

narrowly won his first election in 2000 and, despite winning the plurality in

the 2006 election, ultimately lost to a white candidate in the runoff election

that same year.

3 The Branch Statement defends the panel opinion for “reject[ing] a unique

Section 2 challenge” in the same manner as Holder v. Hall, 512 U.S. 874 (1994),

and Baten v. McMaster, 967 F.3d 345 (4th Cir. 2020). J. Branch Statement at 6

n.6. But these other decisions don’t support the panel’s reasoning. Holder re-

jected a Section 2 challenge because the voters proposed a change in the size

of the governing body, not single-member districting. Holder, 512 U.S. at 878,

881-82. And Baten rejected a Section 2 challenge with a dangerous suggestion

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4 ROSENBAUM, J., Dissenting 22-12593

That is wrong in every way. Neither Plaintiffs’ claim nor

their proposed remedy is “novel.” First, and most importantly, Sec-

tion 2 expressly applies to voting practices imposed “by any State.”

52 U.S.C. § 10301(a). As Judge Wilson notes, the text of the statute

draws no distinction between the electoral practices of “any State”

and the electoral practices of any “political subdivision.” See id.; J.

Wilson Dissent at 5. This language “is straightforward.” Rose, 87

F.4th at 474. The panel’s insistence that we treat this challenge to a

statewide system any differently than we treat challenges to other

political subdivisions therefore finds no support in the statutory

text. Cf’ Brnovich v. Democratic Nat’l Comm., 592 U.S. 647, 666-67

(2021) (showing that our application of Section 2 always begins

with the text of the statute).

Second, the caselaw on Section 2 clearly anticipates that the

statute extends equally to statewide bodies. We have long recog-

nized that we must defer to “Congress’ considered judgment” that

the statute presents “an effective method of preventing States from

undoing or defeating the rights” that Black Americans won with

the passage of the Voting Rights Act. City of Rome v. United States,

446 U.S. 156, 178 (1980) (alterations and internal quotation marks

omitted) (quoting Beer v. United States, 425 U.S. 130, 140 (1976)), ab-

rogated on other grounds in Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

557 US. 193 (2009). And following the 1982 amendment, we ex-

pressly contemplated that Section 2 applies equally to state and

that Section 2 might not apply at all to at-large election systems. See Baten, 967

F.3d at 360-61 (rejecting challenge to elections for presidential electors).

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22-12593 ROSENBAUM, J., Dissenting 5

local governments and that we must “require the states to live up

to their obligation to avoid discriminatory practices in the election

process,” despite their “important interest in determining their

election practices.” United States v. Marengo Cnty. Comm’n, 731 F.2d

1546, 1561 (11th Cir. 1984).

Third, the relative rarity of Section 2 challenges to statewide

bodies doesn’t make them unique. Unlike other provisions of the

Voting Rights Act, Section 2 depends on litigation, which “occurs

only after the fact, when the illegal voting scheme has already been

put in place and individuals have been elected pursuant to it.”

Shelby County v. Holder, 570 U.S. 529, 572 (2013) (Ginsburg, J., dis-

senting). For this reason, Section 2 “was supposed to be a back-up.”

Brnovich, 594 US. at 700 (Kagan, J., dissenting); cf id. at 657 (detail-

ing how Section 2 “was ‘little-used’ for more than a decade after its

passage”). But since the Supreme Court invalidated Section 4(b)

and dismantled Section 5 of the Voting Rights Act, Shelby County,

570 U.S. at 556-57; voters now must rely on Section 2 alone to rem-

edy racial discrimination in voting, Brnovich, 594 U.S. at 700-01 (Ka-

gan, J., dissenting). Given this backdrop, we should expect in-

creased Section 2 litigation and claims that more frequently address

a wider range of electoral practices.

And finally, the panel’s focus on the novelty of this case ig-

nores two general features of Section 2 litigation. One, the core

challenge that voters may sustain under Section 2 is one that alleges

vote dilution. See id. at 660 (recognizing the “steady stream” of

vote-dilution claims under Section 2). Nearly every Section 2 case

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6 ROSENBAUM, J., Dissenting 22-12593

involves a claim that a districting plan, such as at-large elections,

“dilute[s] the ability of particular voters to affect the outcome of

elections.” Id. at 657 (discussing legislative districts); Houston Law-

yers’ Ass’n v. Att’y Gen. of Tex., 501 U.S. 419, 428 (1991) (applying

Section 2 to judicial elections).

And two, the Supreme Court has instructed that, “absent

special circumstances,” we should “employ single-member dis-

tricts” to remedy vote dilution that at-large systems cause. Wise v.

Lipscomb, 437 U.S. 535, 540 (1978). This “remedial principle” has

guided us for decades. Id. (citing Connor v. Williams, 404 U.S. 549,

551 (1972); Mahan v. Howell, 410 U.S. 315, 333 (1973); Chapman v.

Meier, 420 U.S. 1, 18 (1975); E. Carroll Parish Sch. Bd. v. Marshall, 424

US. 636, 639 (1976)). And for good reason. “The single-member

district is generally the appropriate standard against which to meas-

ure minority group potential to elect because it is the smallest po-

litical unit from which representatives are elected.” Gingles, 478

US. at 50 n.17. So we recognize single-member districts as the

“simple, straightforward, and indisputably available” remedies for

challenges to at-large systems. Wright v. Sumter Cnty. Bd. of Elections

é& Registration, 979 F.3d 1282, 1310 (11th Cir. 2020); see also Holder,

512 US. at 888 (1994) (O’Connor, J., concurring in the judgment)

(“[TJhe alternative benchmark is often self-evident. In a challenge

to a multimember at-large system, for example, a court may com-

pare it to a system of multiple single-member districts.”).

In short, all factors—from the text of the statute to the his-

tory of Voting Rights Act litigation—underscore that Section 2

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22-12593 ROSENBAUM, J., Dissenting 7

embraces challenges to statewide, at-large elections that propose

single-member districting as a remedial measure.

II. | The panel opinion’s decision to extend Nipper here is

a mistake of law.

The panel opinion asserts that our decisions in Nipper v.

Smith, 39 E3d 1494 (11th Cir. 1994) (en banc), Southern Christian

Leadership Conference v. Sessions, 56 F.3d 1281 (11th Cir. 1995) (en

banc), and Davis v. Chiles, 139 F.3d 1414 (11th Cir. 1998), provide the

applicable legal framework to evaluate Plaintiffs’ challenge to the

at-large elections for commissioners serving on Georgia’s PSC.

Rose, 87 F.4th at 480. But as Judge Wilson points out, all three cases

concern judicial elections. Nipper, 39 F.3d at 1496; S. Christian Lead-

ership Conf. (“SCLC”), 56 F.3d at 1283; Davis, 139 F.3d at 1416; J. Wil-

son Dissent at 10. Indeed, those decisions themselves explain that

they find their basis in “the unique features of judicial elections and

the manner in which they affect the vote dilution inquiry.” Nipper,

39 E3d at 1527-28. So we have limited our application of this line

of precedent to judicial elections for the past thirty years.

Notwithstanding the clear language of our past decisions

and three decades of precedent, the panel opinion concludes that

Nipper and its progeny must guide our analysis here for two rea-

sons. Rose, 87 E4th at 484-85. First, the panel opinion baldly

states—without reason or citation—that these cases are “not lim-

ited to judicial elections only.” Id. at 484. And second, it claims that

the Nipper line of precedent has “equal force here” because “the

PSC is a ‘quasi-judicial’ administrative body.” Id. at 485 (quoting

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8 ROSENBAUM, J., Dissenting 22-12593

Tamiami Trail Tours, Inc. v. Ga. Pub. Serv. Comm’n, 99 S.E.2d 225, 233

(Ga. 1957)).

This move is novel, dramatic, and wrong. It belies a funda-

mental misunderstanding of our caselaw and reflects a total failure

to consider the consequences on future Section 2 litigation. Our

failure to rehear the case and correct the panel opinion’s doctrinal

errors shirks our responsibility to clean up this mess.

A. Nipper and its progeny govern our consideration of

judicial elections only.

The panel opinion’s conclusory determination that Nipper

and its progeny apply outside the context of judicial elections is at

odds with our caselaw. I agree with Judge Wilson’s analysis and

write separately to emphasize a few points. See J. Wilson Dissent

at 6-13.

We'll start with Nipper. There, this Court, sitting en banc,

considered a claim that the at-large elections for certain trial-level

judges in Florida diluted the voting strength of Black voters in vio-

lation of Section 2. Nipper, 39 K3d at 1496-97. Following a thor-

ough review of the record, we determined that the plaintiff voters

had presented sufficient evidence to “create{] a strong inference of

racial vote dilution.” Id. at 1541. Nevertheless, we struck the chal-

lenge on the ground that the remedies proposed by the plaintiff

voters weren't viable. Id. at 1542-43.

One framework guided our analysis: Gingles. See id. at 1537—

42 (reviewing the district court’s factual findings and conclusions

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22-12593 ROSENBAUM, J., Dissenting 9

of law under Gingles). In fact, the Nipper decision dedicates nearly

seventeen pages to reviewing Gingles’ requirements. See id. at 1509-

27. Rightly so. Gingles binds our consideration of any vote-dilution

challenge because it faithfully interprets “the text and purpose” of

Section 2. Bartlett v. Strickland, 556 U.S. 1, 21 (2009).

But because Gingles requires more than a mechanical appli-

cation, in Nipper, we set forth two additional principles to address

“the unique features of judicial elections and the manner in which

they affect the vote dilution inquiry.” Nipper, 39 K.3d at 1527-28.

First, we said that our Gingles analysis must include a “judicially-

specific consideration—the state’s interest in maintaining its judi-

cial elections structure.” Id. at 1530; see also id. at 1528-30 (discuss-

ing the Supreme Court’s application of Section 2 to judicial elec-

tions in Chisom v. Roemer, 501 U.S. 380 (1991), and Houston Lawyers’

Ass’nv. Att’y Gen. of Tex., 501 U.S. 419 (1991)). Second, we explained

that we must make certain “modulations” to account for the judi-

cial context. See id. at 1530-37.

Specifically, plaintiffs alleging vote dilution in judicial elec-

tions must show the following under Nipper: (1) that a remedy ex-

ists “within the confines of the state’s judicial model that does not

undermine the administration of justice,” to satisfy the first Gingles

precondition; (2) that racial bloc voting exists, to satisfy the second

and third preconditions; and (3) that circumstantial evidence spe-

cific to the “unique features surrounding judicial elections” sup-

ports a finding of vote dilution. Id. Armed with these principles,

we rejected all three of the proposed remedies for reasons that are

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10 ROSENBAUM, J., Dissenting 22-12593

unambiguously unique to the context of judicial elections. See id.

at 1543-47.

Our decision in SCLC follows the same logic. Like Nipper,

SCLC involved a challenge to the at-large system for electing trial-

level judges in Alabama. SCLC, 56 F.3d at 1283. Once again sitting

en banc, we concluded that the plaintiff voters hadn’t established a

Section 2 violation because the evidence in the record failed to sat-

isfy the third Gingles precondition. Id. at 1293-94.

In response to the district court’s alternative holding, we also

determined that the plaintiff voters had failed to propose a viable

remedy. Id. at 1294. As in Nipper, we emphasized that we can’t

“{ljump[] together all elections” and instead must consider the “sig-

nificant differences” between judicial and non-judicial elections. Id.

at 1293. We reasoned that single-member subdistricts that elected

judges to serve district-wide would result in home-cooking, mak-

ing judges responsive to the voters of their own subdistrict and vi-

olating judicial independence. See id. at 1296-97. So we rejected

the plaintiff voters’ two proposed remedies for their failure to main-

tain the link between a judge’s electoral base and the trial court’s

territorial jurisdiction and for their adverse effect on the pool of

qualified candidates for judicial office. See id. at 1294-97. Stated

differently, we allowed the at-large judicial elections to continue be-

cause the proposed remedies didn’t account for the “unique fea-

tures” of judicial elections. See id.

This pair of en banc decisions binds our evaluation of chal-

lenges to judicial elections today. See Davis, 139 F.3d at 1419-24.

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22-12593 ROSENBAUM, J., Dissenting 11

But accompanying our reliance on them are serious misgivings

about their continued viability. In the past thirty years, we have

rejected almost every conceivable remedy to Section 2 violations in

at-large judicial elections, including, but not limited to, re-district-

ing, sub-districting, modified sub-districting, cumulative voting,

limited voting, and special nomination. Id. at 1423 (citing Nipper,

39 E3d at 1542-46; SCLC, 56 E3d at 1294-97; White v. Alabama, 74

F.3d 1058, 1072-73 (11th Cir. 1996)). In practice, Nipper stands as

an impregnable wall for voters alleging vote dilution in at-large ju-

dicial elections in this Circuit. Id. at 1424 (“[IJn this circuit, Section

Two of the Voting Rights Act frankly cannot be said to apply, in

any meaningful way, to at-large judicial elections.”).

Through Nipper, we have effectively created a bright-line

rule that categorically exempts at-large judicial elections from fed-

eral law. And we've done so despite Congress’s intention that, like

all other elections, judicial elections fall within the scope of Section

2. See Chisom, 501 U.S. at 404. Now, the panel opinion pushes that

line further, excluding a yet-to-be-defined group of state bodies

from Section 2’s purview without any textual or precedential basis.

See J. Wilson Dissent at 12.

B. The panel opinion wrongly extended Nipper to apply

to Georgia’s PSC.

Perhaps recognizing the novelty of extending Nipper beyond

the context of judicial elections, the panel opinion reasons that Nip-

per applies with “equal force here” because the PSC “operates in a

distinctly judicial fashion.” Rose, 87 E.4th at 484-85. To reach this

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12 ROSENBAUM, J., Dissenting 22-12593

conclusion, the panel opinion lists the PSC’s “quasi-judicial func-

tions” and claims that the unique features of a state’s judicial sys-

tem are also inherent “in the ‘quasi-judicial’ context.” Id. at 485.

But the panel’s characterization of the PSC runs counter to Geor-

gia law.

Georgia has long expressed that the PSC is entirely distinct

from the state judiciary. In Tamiami Trail Tours, the Georgia Su-

preme Court established that the PSC “is an administrative body”

empowered to perform both quasi-legislative and quasi-judicial

functions. Tamiami Trail Tours, 99 S.E.2d at 232 (holding that the

PSC isn’t bound to follow the same rules of evidence and proce-

dure that govern judicial proceedings when it hears cases). This is

not an unusual structure. See Starnes v. Fulton Cnty. Sch. Dist., 503

S.E.2d 665, 667 (Ga. Ct. App. 1998) (“A particular administrative

body may at times exercise judicial or quasi-judicial functions and

at other times exercise administrative, ministerial, or legislative

functions.”). In fact, administrative bodies are baked into the state’s

constitutional structure. Ga. Const. art. VI, § 1, 41. And as the

Georgia Constitution makes clear, any “quasi-judicial powers” that

administrative bodies exercise are distinguishable from the “judi-

cial power of the state.” Id. (stating that “[t]he judicial power of

the state shall be vested exclusively” in various courts and that the

legislature “may authorize administrative agencies to exercise

quasi-judicial powers”); see also Bentley v. Chastain, 249 S.E.2d 38, 40

(Ga. 1978) (quoting Dep’t of Nat. Res. v. Linchester Sand & Gravel

Corp., 334 A.2d 514, 522 (Md. 1975)).

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22-12593 ROSENBAUM, J., Dissenting 13

Not only that, but the panel opinion’s decision to represent

PSC’s quasi-judicial functions as “distinctly judicial” doesn’t even

make sense when we clarify what those quasi-judicial functions are.

See Rose, 87 E4th at 485. True, the PSC “hears rate cases, holds

hearings, listens to witnesses, makes evidentiary rulings, and

weighs testimony from stakeholders” to come to a decision. Id.

But the PSC takes these actions largely in the context of its regula-

tion of the rates various utilities charge and the services utilities

provide. These activities are distinctly legislative. See, e.g., Ga. Pub.

Serv. Comm’n v. S. Bell, 327 S.E.2d 726, 728 (Ga. 1985) (describing

ratemaking as part of “the legislative domain”); Tamiami Trail

Tours, 99 S.E.2d at 233 (describing the grant and revocation of cer-

tificates of public convenience and necessity as an “exercise of ad-

ministrative or legislative power’).

Equally unpersuasive is the panel opinion’s claim that elec-

tions for the PSC possess the same “unique features” as judicial

elections. See Rose, 87 F.4th at 485; J. Wilson Dissent at 10. For

starters, Georgia elects its PSC commissioners through partisan

elections, see Ga. Code Ann. § 46-2-1(a); but it elects its judges

through non-partisan elections, see Ga. Const. art. VI, § VII, ¥ I.

And significantly, PSC commissioners operate as a collegial body

that makes decisions through majority rule, see Ga. Comp. R. &

Regs. 515-2-1-.10; but judges exercise their authority independently,

see Nipper, 39 F.3d at 1534-35. So unlike in the hypothetical judicial

scenario, a single PSC commissioner is unable to home-town her

rulings to favor only her voters in a single-member district. See J.

Wilson Dissent at 12. Indeed, Georgia voters understand that PSC

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14 ROSENBAUM, J., Dissenting 22-12593

commissioners are responsive to their concerns. See Ga. Power Co.

v, Allied Chem. Corp., 212 S.E.2d 628, 632 (Ga. 1975) (“It is said that

Public Service Commissions and legislatures should be ‘collectively

responsive to the popular will.

533, 565 (1964)). These “significant differences between the legis-

(quoting Reynolds v. Sims, 377 U.S.

lative and judicial arenas” animated our decision to deviate from

Gingles in the context of judicial elections. Nipper, 39 E.3d at 1534.

So in their absence, we have no reason to deviate.‘

The PSC’s “quasi-judicial” functions do not transform this

administrative body into a judicial body. See J. Wilson Dissent at 9—

10. In holding otherwise, the panel disrespects both Georgia law

and our decision in Nipper.

III. The panel’s opinion effectively overrules Gingles.

Just last year, the Supreme Court confirmed that the frame-

work it developed in Gingles continues to guide our assessment of

claims alleging vote dilution under Section 2. Allen v. Milligan, 599

US. 1, 17-19 (2023). Together, Milligan and Gingles mandate that

4 The Branch Statement claims that “these distinctions are unconvincing” be-

cause other states hold partisan elections for judges, and state appellate courts

act as collegial, multi-member bodies. J. Branch Statement at 3-4 n.3. The

Branch Statement misunderstands. I don’t suggest that partisan elections or

collegial operations are dispositive factors in distinguishing between legislative

and judicial bodies. Nor could I; Nipper expressly states that “significant differ-

ences” exist between the two “arenas, chief among them being the varied ex-

pectations of responsiveness and bias in favor of constituents.” Nipper, 39 F.3d

at 1534. To this point of law, the Branch Statement offers no satisfactory re-

sponse.

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22-12593 ROSENBAUM, J., Dissenting 15

we assess whether plaintiffs have satisfied three “preconditions.” Id.

at 18 (citing Gingles, 578 US. at 50). First, plaintiffs must show that

the minority group is “sufficiently large and geographically com-

pact” to constitute a political group. Id. (alteration and internal

quotation marks omitted) (quoting Wis. Legislature v. Wis. Elections

Comm’n, 142 S. Ct. 1245, 1248 (2022) (per curiam)). Second, plain-

tiffs must prove that the minority group is “politically cohesive.”

Id. (internal quotation marks omitted) (quoting Gingles, 478 U.S. at

51). Third, plaintiffs must demonstrate that the majority group

votes to defeat the preferred candidates of the minority group. Id.

(citing Gingles, 478 U.S. at 51). And then, if they establish those

three preconditions, plaintiffs also must show that “the political

process is not ‘equally open’ to minority voters” based on the “to-

tality of the circumstances.” Id. (citing Gingles, 478 U.S. at 45-46).

So each step requires a different showing from the plaintiffs and a

different evaluation by the courts.

The panel opinion rejected Plaintiffs’ challenge because it

said their proposed remedy isn’t viable in light of Georgia’s as-

serted “policy interests” in maintaining at-large elections for the

PSC. Rose, 87 K.4th at 480, 485. In coming to this conclusion, the

panel opinion claims that Plaintiffs, in fact, failed to satisfy the first

Gingles precondition. Id. at 480. The panel opinion also suggests

that the outcome would be the same after consideration of the to-

tality of the circumstances. Id. at 475-76 (“[W here plaintiffs offer

only a single, dramatic remedy . . . it makes no difference whether

a claim fails for the lack of a permissible remedy at the precondition

stage or after the totality of the circumstances analysis.”).

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16 ROSENBAUM, J., Dissenting 22-12593

Yet the panel’s opinion is nearly bereft of any discussion of

the three well-established Gingles preconditions and of the various

factors that make up our totality-of-the-circumstances analysis, as

the Supreme Court described in Milligan. Rather than engage with

this binding framework, the panel opinion instead focused its in-

quiry on only whether “the State’s deliberate choice” of at-large

PSC elections “was informed by significant policy considerations

that would be undermined by a forced change . . . from a statewide

body to a single-member districted body.” Id. at 482.

But again, just last year, the Supreme Court announced that

such a “single-minded view of § 2 cannot be squared with the [Vot-

ing Right Act]’s demand that courts employ a more refined ap-

proach.” Milligan, 599 US. at 26. That is nothing new. As Judge

Wilson recognizes, we have long understood that we may not re-

duce the Gingles framework to a solitary factor. Wis. Legislature,

595 US. at 405; J. Wilson Dissent at 13. The panel here focused on

a single factor: the state’s interest in maintaining its existing elec-

toral system. Rose, 87 E4th at 480-86. Gingles doesn’t countenance

this sort of evaluation of a Section 2 claim, and we should correct

the panel opinion’s contrary analysis.

A. The first Gingles precondition doesn’t center on the

state’s interest in its existing system.

As I’ve noted, the panel opinion determined that Plaintiffs

failed to satisfy the first Gingles precondition. Id. at 480. But its

analysis completely disregards decades of binding precedent about

the limited showing this step of the Gingles analysis requires.

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22-12593 ROSENBAUM, J., Dissenting 17

Under the first Gingles precondition, plaintiffs alleging vote

dilution in violation of Section 2 must show that the minority

group is “sufficiently large and geographically compact” to make

up a majority in some “reasonably configured district.” Milligan,

599 US, at 18 (quoting Wis. Legislature, 142 S. Ct. at 1248). To satisfy

this precondition, they must produce some illustrative map in

which the minority group “make{s] up more than 50 percent of the

voting-age population in the relevant geographic area.” Bartlett,

556 US. at 18. This illustrative map may be useful to the defendant

state in devising its ultimate remedial map if the court finds a Sec-

tion 2 violation. See Milligan, 599 US. at 20 (explaining that the

plaintiffs’ illustrative maps were “example districting maps” that

the defendant state could choose to enact).

But we impose this map requirement for a much simpler

purpose: to determine whether at-large voting is responsible for the

minority group’s inability to elect its preferred candidates. Gingles,

478 US. at 51 & n.17 (“Unless minority voters possess the potential

to elect representatives in the absence of the challenged structure

or practice, they cannot claim to have been injured by that struc-

ture or practice.”); see also Milligan, 599 U.S. at 18 (explaining that

the purpose of the illustrative map is “to establish that the minority

has the potential to elect a representative of its own choice in some

single-member district” (quoting Growe v. Emison, 507 U.S. 25, 40

(1993))).

As a result, satisfaction of the first Gingles precondition re-

quires only that plaintiffs show a hypothetical alternative district

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18 ROSENBAUM, J., Dissenting 22-12593

that is “reasonably configured” and in which the minority popula-

tion is “geographically compact” according to “traditional district-

ing principles such as maintaining communities of interest and tra-

ditional boundaries.” Abrams v. Johnson, 521 U.S. 74, 92 (1997) (quot-

ing Bush v. Vera, 517 U.S. 952, 977 (1996)).

Despite this clear and consistent guidance, the panel opinion

grafts onto the first precondition a new requirement that plaintiffs

produce a map that respects “the state’s interest in maintaining its

form of government.” Rose, 87 E.4th at 482. As Judge Wilson de-

tails, the panel opinion lifts this idea from Nipper, where we stated

that the first precondition implies “a limitation on the ability of a

federal court to abolish a particular form of government and to use

its imagination to fashion a new system.” Nipper, 39 F.3d at 1531; J.

Wilson Dissent at 11-12. But in Nipper, we recognized just two

limits on the illustrative maps that Section 2 plaintiffs may propose.

See id. at 1531-33. First, we explained that any proposed remedy

may not alter the size of the governmental body at issue. Id. at

1532 (discussing Holder v. Hall, 512 U.S. 874 (1994)). And second,

we determined that the first precondition requires that the pro-

posed map fall “within the confines of the state’s judicial model”

and not “undermine the administration of justice.” Id. at 1531.

In the decades since Gingles, the Supreme Court has never

required that Section 2 plaintiffs produce an illustrative map that

doesn’t alter the state’s “chosen form of government.” See, e.g., Mil-

ligan, 599 US. at 18; Abbott v. Perez, 585 U.S. 579, 614 (2018); Bartlett,

556 U.S. at 11-12 (2009) (plurality opinion); League of United Latin

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22-12593 ROSENBAUM, J., Dissenting 19

Am. Citizens v. Perry, 548 U.S. 399, 425 (2006); Holder, 512 U.S. at 880

n.1; Growe, 507 U.S. at 40. Nor has any other federal appellate court

adopted this rule. For good reason. The panel opinion’s rule cre-

ates a Catch-22 for plaintiffs, both requiring them to show a single-

member district in which voters of the minority group are the ma-

jority and then striking their challenge if the state doesn’t already

use single-member districts. To the extent that dicta in Nipper im-

plies the broad rule that the panel opinion suggests, it is incompat-

ible with Gingles. We should have “decline[d] to depart from the

uniform interpretation of § 2 that has guided federal courts and

state and local officials for” nearly forty years. Bartlett, 556 U.S. at

19.

B. By definition, any totality-of-the-circumstances analy-

sis requires consideration of more than the state’s in-

terest alone.

The panel opinion says it would have reached the same an-

swer had it considered the totality-of-the-circumstances analysis.

Rose, 87 F.4th at 475-76. Again, this statement is inconsistent with

binding Supreme Court precedent.

In cases where plaintiffs have satisfied the three precondi-

tions, Gingles directs us to consider the “totality of the circum-

stances” to determine whether the challenged electoral system di-

lutes the minority group’s vote in violation of Section 2. See John-

son v. De Grandy, 512 U.S. 997, 1010-11 (1994) (detailing the nine so-

called “Senate factors” we must consider when analyzing the total-

ity of the circumstances). Although the state’s interest in

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20 ROSENBAUM, J., Dissenting 22-12593

maintaining its existing electoral structure is one of several “legiti-

mate factor[s] to be considered by courts among the ‘totality of

circumstances’ in determining whether a § 2 violation has oc-

curred,” Houston Lawyers’ Ass’n, 501 U.S. at 426; this interest “does

not automatically, and in every case, outweigh proof of racial vote

dilution,” id. at 427. As the Supreme Court clarified last year, Sec-

tion 2 liability “must be determined ‘based on the totality of cir-

cumstances,” not a single factor. Milligan, 599 U.S. at 26. We have

long followed this command. See, e.g., Wright, 979 F.3d at 1304-11

(considering the various Senate factors and weighing them against

each other).

But here, the panel opinion considered only one of the nine

Senate factors: “whether the policy underlying the state or political

subdivision’s use of such voting qualification, prerequisite to vot-

ing, or standard, practice or procedure is tenuous.” Id. at 1289

(quoting Solomon v. Liberty Cnty. Comm’rs, 221 F.3d 1218, 1226 (11th

Cir. 2000) (en banc)). And despite the panel opinion’s approving

citation, its approach to this particular factor “place[s]. . . an insur-

mountable weight on [the] state’s interest” in defiance of the Su-

preme Court’s contrary command. Rose, 87 E.4th at 281 (quoting

Davis, 139 E.3d at 1423).

The panel opinion makes the state’s interest in maintaining

its existing electoral system dispositive. In doing so, the panel opin-

ion has erased the entirety of the Gingles framework, from the first

precondition through the totality-of-the-circumstances analysis.

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22-12593 ROSENBAUM, J., Dissenting 21

Our decision to let the panel opinion stand therefore renders Sec-

tion 2 a dead letter in this Circuit.

IV. Conclusion

For the foregoing reasons, I dissent from this Court’s denial of

rehearing en banc.