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.”
How later courts described this case
- 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.”
Written by the judges who cited it.
The opinion
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[PUBLISH]
In 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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22-12593 Opinion of the Court 2
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02921-SDG
____________________
Before BRANCH and GRANT, Circuit Judges, and SCHLESINGER,∗
District Judge.
BRANCH, Circuit Judge:
The Georgia Public Service Commission (“PSC”) consists of
five commissioners elected through statewide, at-large elections.1
Plaintiffs—four black residents of Fulton County, Georgia—sued
the Georgia Secretary of State (“Secretary”) alleging that this
election system constitutes unlawful vote dilution under Section 2
of the Voting Rights Act (“VRA”). In short, plaintiffs allege that
black Georgians have been unable to elect their preferred PSC
candidates because the statewide electoral system forces them to
go head-to-head with the preferences of white Georgians across
the State. Plaintiffs contend that single-member districts would be
∗ The Honorable Harvey Schlesinger, United States District Judge for the
Middle District of Florida, sitting by designation.
1
As the district court recognized in its order, Georgia’s PSC elections are
“statewide” because they are open to every registered Georgia voter and “at-
large” because all voters are eligible to vote directly for all five commissioners
(instead of electing a single commissioner that then represents their district on
the PSC). For ease of reference, we refer to this as a “statewide” system.
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22-12593 Opinion of the Court 3
less dilutive and, therefore, are required. The Secretary argues that
partisanship—not race—has driven the PSC’s electoral outcomes.
He also argues that plaintiffs’ requested remedy (single-member
districts) would impermissibly alter Georgia’s chosen form of
government—a statewide body designed to avoid provincialism in
the tough business of regulating energy. The district court agreed
with plaintiffs and enjoined the Secretary from administering
statewide PSC elections and from certifying any commissioner
elected via such method.2 For the reasons below, and with the
benefit of oral argument, we reverse.
I. Background
A. The PSC’s Functions and Method of Election
The Georgia Constitution requires a five-member PSC for
utility regulation. Ga. Const. Art. IV, § 1, ¶ I(a) (“There shall be a
[PSC] for the regulation of utilities which shall consist of five
members who shall be elected by the people.”). The PSC’s
significant responsibilities are wide-ranging. At a basic level, the
PSC determines, or at least monitors, the prices consumers pay for
utilities—including electricity, natural gas, and some telephone
services. The PSC also controls permitting for power plant
construction and it has some jurisdiction over internet connectivity
and rural broadband, among other functions. Simply put, the PSC
is important to the State and its citizens.
2
This order also cancelled elections for two PSC seats that were scheduled for
November 2022.
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22-12593 Opinion of the Court 4
The PSC carries out its responsibilities as an “administrative
body” that performs “quasi-judicial” and “quasi-legislative”
functions. Tamiami Trail Tours, Inc. v. Ga. Pub. Serv. Comm’n, 99
S.E.2d 225, 233 (Ga. 1957). That is, it conducts some of its
proceedings as an adjudicatory body that “hears rate cases, holds
hearings, listens to witnesses, makes evidentiary rulings, and
weighs testimony from stakeholders”—similar to the judicial role.
But it also sets utility rates, controls permitting for power plant
construction, and regulates pole attachments and landlines for
communications—similar to the legislative role.
The PSC dates back to 1879 when the Georgia General
Assembly adopted an act establishing its predecessor, the Railroad
Commission. In 1922, the General Assembly changed the name of
the Railroad Commission to the PSC and expanded its powers and
duties. Since 1906, Georgia’s PSC commissioners—railroad
commissioners prior to 1922—have been elected statewide to
staggered six-year terms. When the PSC achieved constitutional
status in 1945, the General Assembly retained the same election
system. 3 In fact, in over 100 years, there has only been one change
to PSC elections. Specifically, in 1998, under Governor Roy Barnes,
the Georgia General Assembly created a five-district system with a
residency requirement that remains in place today. Under this
system, PSC commissioners must live in the district they represent,
3
Before 1945, the PSC was only a creature of statute.
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22-12593 Opinion of the Court 5
but they are still elected through statewide elections.4 For example,
to represent the PSC’s third district (Clayton, DeKalb, and Fulton
Counties), a PSC commissioner must live in one of those three
counties; however, Georgians in all 159 counties will vote on that
commissioner’s candidacy. The residency requirement did not
alter the electoral system (i.e., statewide elections are still used), but
it did change the candidate pool (i.e., a PSC candidate must live in
the district that he would represent if he were to win the statewide
election).
The PSC’s statewide electoral structure was deliberately
chosen to advance policy interests that the Georgia General
Assembly deemed important. For example, the PSC’s statewide
elections allow each commissioner to prioritize the “best interest[s]
of the whole state” without logjams from regionalized disputes.
As PSC Chair Tricia Pridemore testified below:
4
The Georgia Constitution requires that the PSC be “elected by the people,”
Ga. Const. Art. IV, § 1, ¶ I(a), leaving room for the Georgia General Assembly
to spell out the specifics of the electoral system by statute. Since 1998, the
governing law has provided:
The [PSC] shall consist of five members to be elected as
provided in this Code Section. . . . [M]embers elected to the
commission shall be required to be residents of one of five
[PSC] Districts as hereafter provided, but each member of the
commission shall be elected state wide by the qualified voters
of this state who are entitled to vote for members of the
General Assembly.
O.C.G.A. § 46-2-1(a).
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[T]he one thing about the five commissioners is that
we don’t fight over where things go. We don’t fight
over which district gets a new gas plant or . . . a solar
farm. . . . The way [PSC elections are] structured
enables us to . . . maximize the needs for the state.
If each commissioner represented only a district, then important
questions of utility regulation—such as the location of energy and
infrastructure—could turn into a zero-sum game between
commissioners beholden to their districts instead of a collaborative
effort to reach the best result for the entire State. Similarly,
Pridemore testified that the statewide electoral system discourages
fights over rate setting, one of the PSC’s most important functions:
“We don’t fight and argue amongst the five of us . . . over [whether]
District 5 customers pay less than District 3 or District 3 electric
customers pay more.” Other PSC commissioners provided similar
views.5 At the end of the day, the Georgia General Assembly
selected a statewide election system that allows PSC
commissioners to focus on the needs of Georgia as a whole.
B. Section 2 of the VRA
An upfront understanding of the framework of Section 2 of
the VRA helps contextualize plaintiffs’ allegations, the Secretary’s
counter arguments, and the district court’s various rulings.
5
Commissioner Tim Echols, for example, provided that he “think[s] it’s
important that commissioners understand the issues of constituents all across
[Georgia] regardless of where they live.”
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The text of Section 2 is straightforward:6 It forbids “any
State or political subdivision” from imposing any “voting
qualification or prerequisite to voting or standard, practice, or
procedure . . . which results in a denial or abridgement of the right
of any citizen of the United States to vote on account of race or
color.” 52 U.S.C. § 10301(a). The right protected by Section 2 is
“equality of opportunity, not a guarantee of electoral success for
minority-preferred candidates of whatever race.” Johnson v. De
6
The pertinent text of Section 2 provides:
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or applied 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 or color, or in contravention
of the guarantees set forth in section 10303(f)(2) of this title, as
provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the
totality of circumstances, it is shown that the political
processes leading to nomination or election in the State or
political subdivision are not equally open to participation by
members of a class of citizens protected by subsection (a) in
that its members have less opportunity than other members of
the electorate to participate in the political process and to elect
representatives of their choice. The extent to which members
of a protected class have been elected to office in the State or
political subdivision is one circumstance which may be
considered: Provided, [t]hat nothing in this section establishes a
right to have members of a protected class elected in numbers
equal to their proportion in the population.
52 U.S.C. § 10301(a)–(b).
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22-12593 Opinion of the Court 8
Grandy, 512 U.S. 997, 1014 n.11 (1994). Notably, Section 2 explicitly
disclaims a right to proportionality. 52 U.S.C. § 10301(b)
(“[N]othing in this section establishes a right to have members of a
protected class elected in numbers equal to their proportion in the
population.”).
In Thornburg v. Gingles, 478 U.S. 30, (1986), the Supreme
Court laid the foundation for assessing at-large voting systems for
vote dilution under Section 2. Id. at 43–51. “[A]t-large elections”
are not “per se violative of § 2,” but the Supreme Court has “long
recognized that . . . at-large voting schemes may operate to
minimize or cancel out the voting strength of racial minorities in
the voting population.” Id. at 46–47 (quotation omitted) (alteration
adopted). In such a case, at-large districts are prohibited. Id. at 48.
To establish vote dilution under Section 2, plaintiffs must
first satisfy the three Gingles preconditions:
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
politically cohesive. And third, the minority must be
able to demonstrate that the white majority votes
sufficiently as a bloc to enable it . . . to defeat the
minority’s preferred candidate.”
Allen v. Milligan, 599 U.S. 1, 18 (2023) (brackets in original) (ellipses
in original) (quotations omitted) (internal citations omitted) (citing
Gingles, 478 U.S. at 51).
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Importantly, we have interpreted the first Gingles
precondition—a minority group being sufficiently large and
geographically compact to constitute a majority in a reasonably
configured district—to require plaintiffs to “offer[] a satisfactory
remedial plan.” Wright v. Sumter Cnty. Bd. of Elections & Registration,
979 F.3d 1282, 1302 (11th Cir. 2020). Without a satisfactory
remedial plan, plaintiffs “cannot succeed.” Id.; see also Nipper v.
Smith, 39 F.3d 1494, 1530 (11th Cir. 1994) (en banc) (“[T]he issue of
remedy is part of the plaintiff’s prima facie case in section 2 vote
dilution cases.”); Burton v. City of Belle Glade, 178 F.3d 1175, 1199
(11th Cir. 1999) (“We have repeatedly construed the first Gingles
factor as requiring a plaintiff to demonstrate the existence of a
proper remedy.”). Further, plaintiffs’ remedial plan cannot be
fundamentally at odds with the state’s chosen model of
government because “[n]othing in the Voting Rights Act 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.
Our interpretation of the first Gingles precondition has
attracted support in other circuits. See Sanchez v. Colorado, 97 F.3d
1303, 1311 (10th Cir. 1996) (“The inquiries into remedy and liability,
therefore, cannot be separated: A district 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.”(quoting Nipper, 39 F.3d at 1530–31)); Bone Shirt v.
Hazeltine, 461 F.3d 1011, 1025 (8th Cir. 2006) (Gruender, J.
concurring) (same). Even circuits that do not assess the viability of
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22-12593 Opinion of the Court 10
the proposed remedy as part of the first precondition inquiry
recognize that proper remedies are critical in Section 2 vote
dilution cases. See generally Cousin v. Sundquist, 145 F.3d 818, 831
(6th Cir. 1998) (“Therefore, even if we found that plaintiffs’
showing met the Gingles pre-conditions or satisfied the totality of
the circumstances test, we would not approve the imposition of
such a remedy.”). Thus, especially in a case like this one, where
plaintiffs offer only a single, dramatic remedy—transforming a
cumulative voting statewide system into a single-member
districted plan—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.
If plaintiffs can satisfy each Gingles precondition, the analysis
then proceeds to a totality of the circumstances test 7 to determine
7
As part of the totality of the circumstances analysis, we traditionally consider
the “Senate factors,” which include:
1. the extent of any history of official discrimination in the state
or political subdivision that touched the right of the members
of the minority group to register, to vote, or otherwise to
participate in the democratic process;
2. the extent to which voting in the elections of the state or
political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used
unusually large election districts, majority vote requirements,
anti-single shot provisions, or other voting practices or
procedures that may enhance the opportunity for
discrimination against the minority group;
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whether the voting system “result[s] in unequal access to the
electoral process.” Gingles, 478 U.S. at 46; see also Wright, 979 F.3d
at 1288 (“Once all three Gingles requirements are established, the
statutory text directs us to consider the totality of the
circumstances to determine whether members of a racial group
have less opportunity than do other members of the electorate.”
(quotation omitted)). “[I]t is the plaintiff’s burden to establish each
of the Gingles preconditions and to show, under the totality of the
circumstances, that members of a protected class suffer unequal
4. if there is a candidate slating process, whether the members
of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the
state or political subdivision bear the effects of discrimination
in such areas as education, employment and health, which
hinder their ability to participate effectively in the political
process;
6. whether political campaigns have been characterized by
overt or subtle racial appeals; and
7. the extent to which members of the minority group have
been elected to public office in the jurisdiction.
...
8. whether there is a significant lack of responsiveness on the
part of elected officials to the particularized needs of the
members of the minority group; and
9. whether the policy underlying the state or political
subdivision’s use of such voting qualification, prerequisite to
voting, or standard, practice or procedure is tenuous.
Wright, 979 F.3d at 1289.
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access to the political process.” Wright, 979 F.3d at 1307 (emphasis
in original).
Putting these pieces together, the traditional Section 2 vote
dilution case challenges the operative boundaries of an electoral
system and seeks to redraw those boundaries so that the minority
population’s voting strength is no longer diluted across the
aggregated voting population. Gingles, 478 U.S. at 46–47. Often,
these cases challenge multi-member, at-large districts used by
governmental subunits within a state—such as city councils,
county commissions, or school boards—and allege vote dilution
because white voters get to vote for every board member which, in
turn, drowns out the preferences of minority voters. See generally
United States v. Marengo Cnty. Comm’n, 731 F.2d 1546, 1552 (11th Cir.
1984) (county commission and school board); Sanchez v. Bond, 875
F.2d 1488, 1489–90 (10th Cir. 1989) (county commission); Badillo v.
City of Stockton, 956 F.2d 884, 885–86 (9th Cir. 1992) (city council);
Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1385 (8th Cir. 1995)
(school board); McNeil v. Springfield Park Dist., 851 F.2d 937, 938 (7th
Cir. 1988) (school board and park district); Clarke v. City of
Cincinnati, 40 F.3d 807, 808 (6th Cir. 1994) (city council); Washington
v. Tensas Par. Sch. Bd., 819 F.2d 609, 610–12 (5th Cir. 1987) (school
board and policy jury which was the “parish governing authority”);
Holloway v. City of Va. Beach, 42 F.4th 266, 270–71 (4th Cir. 2022)
(city council); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d
1103, 1111–12 (3d Cir. 1993) (school board); Goosby v. Town Bd. of
Hempstead, 180 F.3d 476, 481 (2d Cir. 1999) (town board); Uno v. City
of Holyoke, 72 F.3d 973, 977–78 (1st Cir. 1995) (city council). In these
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cases, plaintiffs essentially allege that there are no “safe” districts in
which minority voters have an enhanced opportunity to elect their
preferred candidates. If vote dilution is found in these multi-
member, at-large electoral systems, then the traditional remedy
entails imposing a single-member districted system with some
allocation of “majority-minority” districts in which “a minority
group composes a numerical, working majority of the voting-age
population.” Bartlett v. Strickland, 556 U.S. 1, 13 (2009); see Connor v.
Johnson, 402 U.S. 690, 692 (1971) (“[S]ingle-member districts are
preferable to large multi-member districts as a general matter.”).
Section 2 vote dilution challenges have also been brought
against electoral systems that employ single-member districts.
Voinovich v. Quilter, 507 U.S. 146, 157–58 (1993) (“In [Growe v. Emison,
507 U.S. 25, 40–42 (1993)], however, we held that the Gingles
preconditions apply in challenges to single-member as well as
multimember districts.”); see, e.g., De Grandy, 512 U.S. at 1000.
Plaintiffs in these cases generally allege that their votes are diluted
because the operative electoral map has an insufficient number of
majority-minority districts. In the context of these single-member
districts, if vote dilution is found, the traditional remedy is to
redraw the boundaries of the already-existing single-member
districts to remove the plan’s dilutive effect. See League of United
Latin Am. Citizens v. Perry, 548 U.S. 399, 495 (2006) (Roberts, J.,
concurring) (“[I]n the context of single-member districting
schemes, we have invariably understood [Section 2 of the VRA] to
require the possibility of additional single-member districts that
minority voters might control.” (emphasis in original)).
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In these two types of traditional Section 2 cases, plaintiffs
have experienced mixed levels of success depending—of course—
on the facts of the case. Importantly, however, despite the
extensive and litigious history of Section 2, it had never been used
to invalidate a statewide election system on vote dilution grounds
until the district court reached such a holding in this case.8
C. Procedural History
Plaintiffs filed this lawsuit in the Northern District of
Georgia in July 2020. They alleged that Georgia’s statewide PSC
elections dilute their votes in violation of Section 2 of the VRA
because black voters have been consistently unable to elect their
preferred candidates over the voting strength of white voters across
Georgia.9 Plaintiffs maintained that this electoral ineffectiveness
8
We are unaware of—and plaintiffs failed to provide—any case that has
invalidated a statewide election system under the Section 2 framework. When
asked at oral argument if plaintiffs’ counsel was “aware of any case where § 2
renders a statewide election illegal,” counsel admitted that “[he thought] the
answer [was] no.” The district court recognized the unprecedented nature of
this case as well, noting that “[t]his case presents the novel question of whether
there can be vote dilution in violation of Section 2 of the [VRA] when the
challenged election is held on a statewide basis.”
9
Plaintiffs do not cabin their argument to the PSC’s unique statewide system
that is coupled with a residency requirement—rather, they take aim at the
statewide system in general. That is, even without the live-in-the-district
requirement, plaintiffs would put forth the same vote dilution argument, as
they made clear during proceedings at the district court:
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was despite the fact that “African Americans in Georgia [were]
sufficiently numerous and geographically compact to constitute a
majority of the voting-age population in at least one single-
member district.” Accordingly, plaintiffs sought a remedy that
would change Georgia’s statewide system to single-member
districts—including one Atlanta-based district with a black
majority.
The Secretary moved to dismiss. The district court denied
the Secretary’s motion in full.
Then, the parties cross-moved for summary judgment. In
particular, plaintiffs argued that they were entitled to partial
summary judgment because they satisfied the three preconditions
for a Section 2 vote dilution claim as set forth in Gingles. 478 U.S.
at 50–51. The Secretary again argued that plaintiffs lacked standing
or that, at least, plaintiffs “failed to demonstrate they have a
sufficient remedy” because “the undisputed evidence demonstrates
the State has a strong interest in maintaining its form of
government for the PSC as a statewide elected body.”
District Court: So you’re saying that even if there was no
residency requirement your challenge would still be viable?
Your challenge is to the statewide at-large nature of election?
[Plaintiffs’ Counsel]: Absolutely, Your Honor. In a nutshell,
our claim is that African-American voters votes are diluted by
the at-large nature of elections for the [PSC] because of the
presence of racially-polarized voting.
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While the Secretary’s motion was denied in its entirety,
plaintiffs’ motions were granted in part. The district court agreed
that plaintiffs satisfied the Gingles preconditions and were entitled
to summary judgment on those points. However, it determined
that plaintiffs were not entitled to summary judgment on their
proposed remedy, and the case was set for trial. After a five-day
bench trial, the district court found that Georgia’s statewide PSC
elections diluted the voting strength of black voters in violation of
Section 2 and permanently enjoined the Secretary from
administering or certifying future PSC elections under this
method. The district court also found that plaintiffs’ proposed
remedy (single-member districts) was viable.
The Secretary appealed, and “move[d] for a stay pending
appeal of the district court’s . . . order permanently enjoining him
from conducting state-wide elections on November 8, 2022, for
Districts 2 and 3 of the Georgia [PSC].” A panel of this Court
granted a stay, finding that the district court should not have altered
the rules of an election that was about to occur under the “Purcell
principle.” See Purcell v. Gonzalez, 549 U.S. 1 (2006). The Supreme
Court, however, vacated the stay, concluding that we erred in
failing to analyze the request under the traditional stay factors.10
Rose v. Reffensperger, 143 S. Ct. 58, 59 (2022).
10
The Supreme Court stated:
The August 12, 2022 order of the United States Court of
Appeals for the Eleventh Circuit staying the district court’s
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Accordingly, we ordered the Secretary to “file a
supplemental brief addressing whether a stay pending appeal is
appropriate under the traditional stay factors.” Instead, the
Secretary filed an “Unopposed Motion to Withdraw Emergency
Stay Injunction Pending Appeal,” which was granted, and the PSC
elections at issue did not occur in November 2022. We then heard
oral arguments on the merits of the Section 2 vote dilution claim.
II. Standard of Review
We review a district court’s “finding of vote dilution under
§ 2” of the VRA for “clear error.” Wright, 979 F.3d at 1288.
Similarly, a “district court’s determination regarding one of the
Gingles prongs is entitled to considerable deference.” Johnson v.
Hamrick, 296 F.3d 1065, 1074 (11th Cir. 2002). We have emphasized,
injunction is vacated. Respondent’s emergency motion for a
stay pending appeal relied on the traditional stay factors and a
likelihood of success on the merits, see Nken v. Holder, 556 U.S.
418 (2009), yet the Eleventh Circuit failed to analyze the
motion under that framework. Instead, it applied a version of
the Purcell principle, see Purcell v. Gonzalez, 549 U.S. 1 (2006) (per
curiam), that respondent could not fairly have advanced
himself in light of his previous representations to the district
court that the schedule on which the district court proceeded
was sufficient to enable effectual relief as to the November
election should applicants win at trial. The Eleventh Circuit
may reconsider whether a stay pending appeal is appropriate,
subject to sound equitable discretion.
Rose v. Raffensperger, 143 S. Ct. 58 (Mem), 213 L. Ed. 2d 1143 (2022)
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22-12593 Opinion of the Court 18
however, that clear error review is not a “rubber stamp,” Wright,
979 F.3d at 1301, and we always retain the power to “correct a
district court’s errors of law and its findings of fact based upon
misconceptions of law,” United States v. Jones, 57 F.3d 1020, 1022
(11th Cir. 1995).
III. Discussion
This vote dilution challenge is not a traditional one. Rather,
plaintiffs ask us to find—for the first time ever—that statewide
elections constitute vote dilution under Section 2. And, as a
remedy, plaintiffs ask that we replace Georgia’s chosen form of
government (five statewide commissioners) with a completely
different system (one commission with five single-member
districts) that does not protect the statewide interests the Georgia
General Assembly deemed important. Simply put, plaintiffs’
request strains both federalism and Section 2 to the breaking point.
Nonetheless, in a novel decision, the district court ruled that
Georgia’s statewide PSC elections constitute vote dilution in
violation of Section 2. But, because it is clear to us that plaintiffs’
proposed remedy is a unique application of Section 2 that would
upset Georgia’s policy interests that are afforded protection by
federalism and our precedents, we hold that plaintiffs have not
proposed a viable remedy and have failed to satisfy Gingles’s first
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precondition. See, e.g., Nipper, 39 F.3d at 1529. Thus, we conclude
that the district court made a mistake of law, and we reverse.11
A. Plaintiffs’ proposed remedy
Plaintiffs propose converting PSC elections from statewide
to single-member districted elections. Specifically, under plaintiffs’
proposal, the State of Georgia would be divided into five districts
and PSC commissioners would be elected by voters in their district
rather than by every voter in the State. Plaintiffs’ proposed map
includes one majority-minority district. That district (proposed
District 1) would span the Atlanta area and include all of Clayton,
DeKalb, Fayette, Henry, Newton, and Rockdale Counties as well as
the southern half of Fulton County. This district would have a 54%
black voting-age population. The other four districts would be
largely rural and majority white.
B. Plaintiffs’ proposed remedy is not viable
As an initial matter, we agree with plaintiffs that Section 2
applies because it explicitly protects against voting “standard[s],
practice[s], or procedure[s]” imposed by “any State or political
subdivision” that “result[] in a denial or abridgement of the right
of any citizen . . . to vote on account of race or color.” 52 U.S.C.
§ 10301(a); see Milligan, 599 U.S. at 24–25. Nonetheless, plaintiffs
11
Because we decide this appeal on the remedy requirement at the first Gingles
precondition, we do not consider the Secretary’s argument that the district
court’s finding of racial vote dilution was clearly erroneous, and we do not
proceed to analyze the “Senate factors” at Gingles’s totality of the
circumstances stage.
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cannot satisfy the first Gingles precondition because their novel
application of Section 2 relies on a remedy that is not viable.
Wright, 979 F.3d at 1302 (“A section 2 plaintiff cannot succeed
without offering a satisfactory remedial plan.”).
To reiterate a critical point, plaintiffs’ proposed remedy asks
us to wade into uncharted territory. Plaintiffs do not bring a
routine challenge to an at-large voting structure at the municipal
or county level and seek a single-member districted plan as the
remedy. Nor do they seek to redraw an already-existing single-
member districted system into a less dilutive single-member
system. We have considered those challenges. See generally Wright,
979 F.3d at 1287; De Grandy, 512 U.S. at 1000. Instead, plaintiffs’
novel proposal is that we dismantle Georgia’s statewide PSC
system and replace it with an entirely new districted system. But
we have never gone this far.
We start by laying out the applicable legal framework
established by three of our precedents and then we apply our
precedent to the instant case. See Nipper, 39 F.3d at 1497; S. Christian
Leadership Conf. v. Sessions, 56 F.3d 1281, 1296–97 (11th Cir. 1995)
[hereinafter SCLC] (en banc); Davis v. Chiles, 139 F.3d 1414, 1416
(11th Cir. 1998).
Nipper is the first case of the trifecta. 39 F.3d at 1496. In
Nipper, this Court—sitting en banc—expressly limited our reach in
certain Section 2 vote dilution cases. Id. In that case, plaintiffs
“challenge[d] the [at-large election] system used to elect the judges
of Florida’s Fourth Judicial Circuit Court [comprised of three
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counties] . . . and the judges of the Duval County Court.” Id. They
sought “a remedy, such as the creation of subdistricts, that [would]
ensure their ability to elect black judges of their choice.” Id. at
1497. A majority of the Court12 interpreted the first Gingles
precondition to require “a remedy within the confines of the state’s
judicial model.” Id. at 1531 (emphasis added). Without such a
remedy, plaintiffs could not succeed because “[n]othing in the
[VRA] . . . permit[s] the federal judiciary to force on the states a
new model of government; moreover, from a pragmatic
standpoint, federal courts simply lack legal standards for choosing
among alternatives.” Id. Then, after examining the alternative
models proposed by the plaintiffs, we held that plaintiffs’ claim
failed because each alternative would threaten important state
interests and “undermine the administration of justice.” Id. at
12
Due to recusals, eight judges sat en banc for Nipper. 39 F.3d at 1496 n.*. Judge
Tjoflat’s plurality opinion was joined by one judge. Id. at 1496–1547. Judge
Edmondson concurred and was joined by three judges. Id. at 1547
(Edmondson, J., concurring). As such, the portions of the plurality opinion
that were concurred to (specifically Parts III(A) and III(B)(1)) are binding
because they were joined by a six-judge majority. Id. For Judge Edmondson
(and the three judges that joined his concurrence), the case was open and shut:
For me, the point that determines the outcome of the case is
this one: The State of Florida’s legitimate interest in
maintaining linkage between jurisdiction and the electoral
bases of its trial judges is, as a matter of law, great and
outweighs (either at the vote-dilution-finding stage or at the
remedy stage) whatever minority vote dilution that may
possibly have been shown here.
Id.
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1543, 1546–47 (“Florida’s current model of trial court elections
embodies a state judgment that the voters in a judge’s jurisdiction
should have the right to hold that judge accountable for his or her
performance in office.”).
The logic of Nipper was quickly reaffirmed, this time in a
challenge to Alabama’s at-large elections for trial judges. SCLC, 56
F.3d at 1281. Sitting en banc again, we had the power to revisit the
legal standards employed in Nipper—but did not. Id. at 1294.
Instead, after affirming the district court’s finding that there was no
vote dilution, we went on to hold that “no remedy [was] available.”
Id. We reiterated that “[w]hen determining whether the remedy a
plaintiff seeks is a feasible alternative to the challenged electoral
system, a state’s interest in maintaining the challenged system is a
legitimate factor to be considered.” Id. Then, we considered
Alabama’s interests in “maintaining the link between a trial judge’s
electoral base and jurisdiction,” protecting against “favoritism
concerns” that arise when smaller districts are created, and
“ensuring a reasonable pool of qualified potential candidates.” Id.
at 1297. In sum, we held that “the many state policy
interests . . . preclude[d] the remedies appellants[] propose[d].” Id.
Thus, SCLC cemented the analysis of Nipper.
Finally, in Davis, in affirming the district court’s rejection of
a proposed remedy in a Section 2 vote dilution suit challenging an
at-large judicial election system in Florida, a panel of this Court
reiterated our prior holdings regarding impermissible remedies:
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In Nipper and SCLC, we ruled that a state’s interest in
maintaining its judicial model and in preserving such
linkage outweighed the plaintiffs’ interest in
ameliorating the effects of racial polarization in at-
large judicial elections. . . . Based on these precedents,
we hold that Davis’s [proposed remedy] would not be
a proper remedy . . . .
139 F.3d at 1423 (citations omitted). In fact, this holding was the
only possible outcome because our case law “has placed . . . an
insurmountable weight on a state’s interest in preserving its
constitution’s judicial selection system and in maintaining linkage
between its judges’ jurisdictions and electoral bases.” Id.
The primary takeaway from this line of precedent is that
general principles of federalism undergird our decisions—as they
must. Id. (“[W]e must consider Florida’s interest in maintaining the
challenged electoral system. . . . Of primary importance in this
case, our adoption of Davis’s plan would require us to contravene
Florida’s Constitution and to substantially break the link between
the affected judges’ jurisdictions and electoral bases.”); see also
SCLC, 56 F.3d at 1298 (Edmondson, J., concurring) (“The basic
structure of Alabama’s judicial branch of government, including
the shape of its judicial jurisdictions and the manner of selecting
trial judges, is in the hands of Alabama’s people.”). This significant
respect for a state’s decisions on matters involving its governmental
structure stems from our federalist system of government which
necessitates respect for states that are “residuary sovereigns and
joint participants in the governance of the Nation.” Alden v. Maine,
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527 U.S. 706, 748 (1999); Printz v. United States, 521 U.S. 898, 918–19
(1997) (“Although the States surrendered many of their powers to
the new Federal Government, they retained ‘a residuary and
inviolable sovereignty.’” (quoting The Federalist No. 39, at 245
( James Madison)). Thus, while the Fourteenth Amendment and
VRA overcome state sovereignty in certain factual situations in the
voting rights arena, we must remain mindful of state authority,
which is a hallmark of American government. See, e.g., League of
United Latin Am. Citizens v. Clements, 999 F.2d 831, 871 (5th Cir. 1993)
(“The substantiality of the state’s interest has long been the
centerpiece of the inquiry into the interpretation of the Civil War
Amendments and their interplay with the civil rights statutes.”).
Building on federalism, the second critical takeaway is that
we must assess a plaintiff’s proposed remedy early and strongly
consider the state’s interest in maintaining its form of government
when making that assessment. Specifically, “there must be a
remedy within the confines of the state’s [PSC] model[.]” Nipper, 39
F.3d at 1531. And we must consider “a state’s interest in
maintaining the challenged system” when “determining whether
the remedy a plaintiff seeks is a feasible alternative to the
challenged electoral system.” SCLC, 56 F.3d at 1294; see also Davis,
139 F.3d at 1423; Houston Lawyer’s Ass’n v. Att’y Gen., 501 U.S. 419,
426–27 (1991) (recognizing the importance of considering the
state’s interest in assessing a plaintiff’s proposed remedy). We must
be mindful that “[i]mplicit in this first Gingles requirement is 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
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system.” Nipper, 39 F.3d at 1531; Wright, 979 F.3d at 1302 (“A section
2 plaintiff cannot succeed without offering a satisfactory remedial
plan,” because “the issue of remedy [at the first Gingles
precondition] is part of the plaintiff’s prima facie case.”).
The Georgia General Assembly determined that the PSC—
a state commission with statewide authority and statewide
responsibilities—should be elected on a statewide basis. O.C.G.A.
§ 46-2-1(a). It did so for race-neutral reasons, and plaintiffs do not
suggest otherwise. Indeed, there is no evidence that race
motivated Georgia’s choice of electoral format at all. To the
contrary, the State’s deliberate choice was informed by significant
policy considerations that would be undermined by a forced
change in the Commission’s structure—from a statewide body to
a single-member districted body. Thus, an adequate remedy has
not been proposed. See SCLC, 56 F.3d at 1297 (“[T]he many state
policy interests we have discussed . . . preclude the remedies
appellants[] propose; moreover[,] these interests outweigh
whatever possible vote dilution may have been shown in this
case.”).
We reach this conclusion because plaintiffs’ proposed
remedy would fundamentally change the PSC’s structure and
operations. 13 A change from statewide to single-member districted
13
To combat this point, plaintiffs point to the dissent to our grant of a stay in
this case in August 2022. In pertinent part, the dissent argued that the district
court did not permit a remedy that altered Georgia’s chosen form of
government because “[t]he district court didn’t, for instance, add a branch of
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elections would clearly affect the inner-workings of the PSC
because commissioners would be serving a new constituency—
their respective districts rather than the State as a whole. 14 As PSC
Chair Pridemore testified, the current system allows
commissioners to focus on the needs of the entire State, whereas a
districted plan has the potential to disconnect commissioners from
that critical statewide mission. See Id. at 1296 (recognizing, in the
judicial context, an important state interest in “linkage,” which
preserves accountability by “[l]inking a trial court judge’s territorial
jurisdiction and electoral base”); Cousin, 145 F.3d at 827 (same).
Plaintiffs’ proposed remedy would also undo a fundamental
component of Georgia’s current PSC electoral system—its
insulation from localized special interests. Our precedents make
clear that this concern is not only relevant, but also can be the
defining feature of an elected body. See, e.g., Nipper, 39 F.3d at 1544.
government, or move a power from one branch to another” or “change how
any of the three branches must conduct themselves.” Rose v. Sec’y, No. 22-
12593, 2022 WL 3572823, at *11 (11th Cir. 2022) (Rosenbaum, J., dissenting).
This test sets an arbitrarily high threshold such that nearly every conceivable
proposal would pass muster (i.e., no proposed remedy will be as significant as
offering a fourth branch of government). Such a test does not comport with
our precedents that expressly protect a state’s chosen form of government.
And moving from a statewide electoral system to a districted one is, in any
event, a change of significant magnitude.
14
Because the PSC’s electoral map is already drawn into residency districts,
plaintiffs argue that single-member districted elections would be consistent
with the State’s chosen model of government. This argument ignores that
each commissioner is still elected statewide.
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As we have stated, “[t]he implementation of subdistricts would
increase the potential for ‘home cooking’ by creating a smaller
electorate and thereby placing added pressure on elected [officials]
to favor constituents—especially as election time approaches.” Id.;
see also SCLC, 56 F.3d at 1297 (“Subdistricting would also increase
the specter of ‘home cooking’: Creating a smaller electorate would
increase the pressure to favor constituents.”). And the concern over
provincialism is merited because “[e]veryone agrees that in some
politically volatile and controversial cases it is beneficial to have the
electorate come from the entire circuit rather than some smaller
portion.” SCLC, 56 F.3d at 1297.
The provincialism concerns discussed in our precedents are
magnified when dealing with a statewide body like the PSC.
Compared to county commission districts, for example, there is
much greater potential for divisive problems to arise across an
entire state—especially one as large as Georgia—and the pertinent
issues are more likely to be large-scale with huge significance.15
15
Just one example of a hugely divisive and significant issue with which the
PSC is involved is the construction of Plant Vogtle near Augusta, Georgia.
The total project “nears $35 billion” in cost. Jeff Amy, Utilities Begin Loading
Radioactive Fuel into a Second New Reactor at Georgia Nuclear Plant, Assoc. Press
(Aug. 17, 2023), [https://perma.cc/2PZY-7YTG]. And soon there will be “a
hearing . . . by the PSC to determine how much customers will pay versus
Georgia Power.” Erica Van Buren, Georgia Power to Start Loading Fuel into Plant
Vogtle Unit 4, Test the Reactor, Augusta Chron. (Aug. 18, 2023),
[https://perma.cc/AYD3-D4G9]. It is easy to see how such a project—which
carries large costs and directly affects one specific area of the state (in order to,
in theory, reduce energy costs across the entire state)—would implicate
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Thus, while changing an at-large electoral system to a single-
member districted system may be a permissible remedy at the
county level where there is little risk of provincialism due to the
county’s size, such a remedy can be impermissible at the State level
where provincialism concerns merit considerable weight. And the
State’s interest is all the stronger where, as here, the PSC’s
statewide body furthers important race-neutral goals. Accordingly,
the need to prioritize the State’s interests over local concerns
supports the State’s policy-based decision to have its PSC elected
statewide. And finally, while it does not play a determinative role
in our analysis, we note that Georgia is not the only state to
undertake this calculus and conclude that statewide elections are
best for state boards like the PSC. Rather, nine other states—of
varying regions and political majorities—employ statewide
elections for their state commissions. Plaintiffs’ counsel admitted
as much at oral argument: “there are . . . seven states . . . including
Georgia, that use [statewide] at-large elections for some or all of
their utility regulators,” as well as “two states . . . that use
[statewide] at-large elections for some or all of their boards of
education[],” and “Hawaii . . . uses [statewide] at-large elections for
a native Hawaiian board.” And there is no reason that if the
statewide PSC—justified by a legitimate desire to avoid
provincialism in the regulation of utilities and untainted by even a
suggestion of racial bias in its creation—could be converted by this
“home cooking” concerns in a way that would negatively affect the PSC’s
mission to protect the interests of the entire State.
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Court into a multidistrict body, that the State Supreme Courts and
other multi-member statewide entities could not be converted as
well.
Here, plaintiffs have failed to put forward an alternative less-
dilutive voting practice that can be implemented to elect
commissioners to the statewide PSC. Plaintiffs instead propose
adopting an election scheme that would effectively change the
structure of the PSC itself from a statewide body to a body that
comprises single-member districts. This extraordinary remedy is
not viable given Georgia’s strong interests in maintaining the PSC
as a statewide body.
We do not mean to suggest that Section 2 plaintiffs could
never prevail when asserting a Section 2 vote dilution claim against
a statewide body. Instead, we merely reaffirm the principle that
plaintiffs must propose a remedy within the confines of the state’s
chosen model of government when bringing such a claim.
Further supporting our decision is the difficulty in selecting
a reasonable benchmark to evaluate the challenged voting practice.
As the Supreme Court has explained, sometimes selecting a
reasonable benchmark is easy, sometimes it is hard. Holder v. Hall,
512 U.S. 874, 880–81 (1994). Here, plaintiffs simply state, without
citing any case, that their proposed remedy is the benchmark. But
that cannot be right. If we accepted plaintiffs’ argument that a
proposed remedy is the benchmark, we would never struggle to
find one. And, in fact, in Holder, the Supreme Court wrestled with
the issue of how to choose an appropriate benchmark. Id. at 881.
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In that case, the plaintiffs challenged the size of a county
commission and argued that a five-member commission should
serve as the benchmark over the single member commission that
was in place. Id. The Supreme Court held that “there [was] no
principled reason why one size should be picked over another as
the benchmark for comparison.” Id. Similarly, here, plaintiffs have
not provided a principled reason why a PSC comprising single-
member districts should be picked as the benchmark.
We turn now to plaintiffs’ counterarguments—and reject
them.
To start, despite plaintiffs’ argument to the contrary, the
Nipper line of precedent is binding on the instant case. Of course,
we are fully aware that Nipper, SCLC, and Davis involve judicial
elections. But the application of these decisions is not limited to
judicial elections only. Even if that were the case, these decisions
would still have equal force here because the PSC is a “quasi-
judicial” administrative body. Tamiami Trail, 99 S.E.2d at 233 (“It
has been recognized by this court and by the courts of other
jurisdictions that an administrative body such as the Public Service
Commission may, in matters which come before it for
determination, perform quasi-judicial functions as well as quasi-
legislative functions.”). This categorization is not hollow. Rather,
the PSC operates in a distinctly judicial fashion. It “hears rate cases,
holds hearings, listens to witnesses, makes evidentiary rulings, and
weighs testimony from stakeholders to come to a decision.”
Further, the reasons that we respect a state’s decision regarding its
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judicial election system (i.e., linking the electoral and jurisdictional
districts for accountability, protecting against “home cooking,” and
promoting fairness) apply just the same in the “quasi-judicial”
context (as analyzed above). See generally Nipper, 39 F.3d at 1544.
We also recognize that Davis references a state’s
“constitutional” model at multiple points. 139 F.3d at 1423. We do
not read Davis to mean, however, that only constitutionally
enshrined models of government are entitled to judicial respect.
To the contrary, as explicated in Davis, “[u]nder Nipper . . . this
court must carefully consider the impact that any remedial
proposal would have on the judicial model enshrined in a state’s
constitution or statutes.” 139 F.3d at 1421 (emphasis added). As
such, we do not analyze whether the Georgia General Assembly
chose its form of government by constitutional or statutory means
because it makes no difference. 16 Compare Ga. Const. Art. IV, § I, ¶
I(a), with O.C.G.A. § 46-2-1(a). Either way, Georgia chose the
statewide electoral model for the PSC, and plaintiffs’ proposed
remedy would alter that choice in contravention of the principles
of federalism.
16
We recognize that the district court interpreted the Georgia Constitution’s
requirement that the PSC be “elected by the people” to require only that the
PSC be elected—instead of appointed by the governor, for example. See Ga.
Const. Art. IV, § I, ¶ I(a). In other words, the district court found that the
specific form of those elections (statewide) is not constitutionally prescribed
and is rooted only in statute. See O.C.G.A. § 46-2-1(a). As such, the district
court concluded that plaintiffs’ proposed remedy would not require the
alteration of Georgia’s chosen form of government.
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Next, plaintiffs argue in a Federal Rule of Appellate
Procedure 28(j) letter that the Supreme Court’s decision in Allen v.
Milligan supports their argument because the Supreme Court
rejected Alabama’s arguments which “echoe[d] the Secretary’s
state-interest argument.” 599 U.S. at 24–26. Milligan counsels
against a “single-minded view of § 2” and quotes Wisconsin
Legislature v. Wisconsin Elections Commission, 595 U.S. 398, 405 (2022),
to provide that a court cannot “improperly reduc[e] Gingles’
totality-of-circumstances analysis to a single [Senate] factor.”
Milligan, 599 U.S. at 24–26. Critically, however, our analysis is not
“single-minded”; rather, in conformance with precedent, we
analyze plaintiffs’ proposed remedy and look to a state’s policy
interests and rationales as one part of that larger undertaking. 17
Similarly, Wisconsin Legislature does not change our analysis—we
are not weighing the Senate factors because we do not reach
Section 2’s totality of the circumstances test (i.e., step two of the
Section 2 analysis once the Gingles preconditions are satisfied).
Rather, we go no further than the first Gingles precondition as
interpreted by binding Eleventh Circuit precedent. See League of
Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 943 (11th
Cir. 2023) (describing our binding commitment to our Circuit’s
precedent). At this first step, we conclude that plaintiffs’ lack of an
adequate remedial proposal means that their claim cannot proceed.
17
A state’s interest, however, is not infallible. See, e.g., SCLC, 56 F.3d at 1297
(“[T]hese interests outweigh whatever possible vote dilution may have been
shown in this case.”).
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See Milligan, 599 U.S. at 18 (“To succeed in proving a § 2 violation
under Gingles, plaintiff must satisfy three preconditions.” (italics
added) (quotations omitted)).
Finally, plaintiffs argue that other evidence—such as
testimony from other commissioners that their duties would not
change and testimony from the “long-time director of the
Secretary’s Center for Election Systems” that transitioning to
single-member districts would be feasible—proves that “switching
to single-member districts would not even affect the
commissioners’ day-to-day work.” 18 As to whether the PSC will be
affected by the potential change in electoral format, the district
court dismissed the State’s interests, such as its “linkage” concern
(i.e., its interest in promoting accountability by having an official’s
territorial jurisdiction mirror his electoral base). But the district
18
Despite their own reliance on lay opinion testimony, plaintiffs also argue
that PSC Chair Pridemore’s “lay opinion” regarding the State’s policy interest
in maintaining its statewide election system is insufficient. The district court
agreed, finding that Pridemore’s testimony was “not tethered to any objective
data” and “lacked foundation.” It is unclear to us what “data” could be offered
to better support Georgia’s policy interests. To the extent that the district
court preferred “arguments buried in legislative history” over Pridemore’s
testimony, we disagree that such forms of evidence would be more
compelling or instructive. All in all, we understand the principal reasons that
Georgia adopted a statewide elected PSC were a concern for avoiding conflicts
amongst the PSC’s commissioners in order to achieve cohesive utility policy
that favors Georgians in each region of the State equally and the desire to
dodge the “home cooking” problem (issues that we have highlighted as
important in our precedents). We find these rationales are properly
considered.
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court’s reasoning was premised on discounting our Nipper line of
precedent because those cases concerned judicial elections. We
have already explained how this conclusion rests on a mistake of
law. See Jones, 57 F.3d at 1022 (“We may correct a district court’s
errors of law and its findings of fact based upon misconceptions of
law.”). And because the district court also mistook other critical
parts of our law—including our Circuit’s emphasis on Gingles’s first
precondition and the effect that federalism and our precedent have
in a novel Section 2 case—we must reverse. Id.
IV. Conclusion
The Georgia General Assembly determined that the State’s
PSC—a constitutionally created state commission with statewide
authority and statewide responsibilities—should be elected
statewide. Georgia chose this electoral format to protect critical
policy interests and there is no evidence, or allegation, that race
was a motivating factor in this decision. On the facts of this case,
we conclude that plaintiffs’ novel remedial request fails because
Georgia’s chosen form of government for the PSC is afforded
protection by federalism and our precedents. In simple terms,
plaintiffs have failed to propose a viable remedy and cannot satisfy
the first Gingles precondition as we understand it. Because the
district court made mistakes of law, we reverse.
REVERSED.