Opposition Brief — Richard Rose, et al., Petitioners v. Brad Raffensperger, Georgia Secretary of State

No. 23-1060

In the

Supreme Court of the United States

RICHARD ROSE, et al.,

Petitioners,

v.

BRAD RAFFENSPERGER,

GEORGIA SECRETARY OF STATE,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF IN OPPOSITION

Christopher M. Carr

Attorney General

Stephen J. Petrany

Solicitor General

Counsel of Record

Paul R. Draper

Deputy Solicitor General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondent

i

QUESTION PRESENTED

Since Thornburg v. Gingles, plaintiffs alleging vote

dilution have been required to show that, “in the absence

of the challenged structure or practice,” minority voters

could “elect representatives” of their choice. 478 U.S.

30, 50 n.17 (1986). This means they must propose a

“reasonable” and “workable” alternative election scheme

“against which to measure the existing voting practice.”

Holder v. Hall, 512 U.S. 874, 880–81 (1994). If there is no

alternative, there is no vote dilution. Id. at 880.

Here, Petitioners assert that their votes are diluted

because Georgia’s Public Service Commission, a statewide

agency, has statewide elections. Petitioners demanded

the Commission’s statewide character be abolished and

proposed to replace it with five representatives elected

from single-member districts. The Eleventh Circuit

rejected this demand because Petitioners’ “novel proposal”

would “replace Georgia’s chosen form of government …

with a completely different system.” Pet.App.16a–17a.

That is, Petitioners failed to identify a comparator by

which to measure vote dilution, and their claim fails.

The question presented is whether a plaintiff

alleging vote dilution has satisfied his burden to propose

a reasonable and workable alternative election scheme

when the suggested remedy would fundamentally alter

the State’s chosen form of government.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Governing Legal Framework . . . . . . . . . . . . 2

B. Factual Background . . . . . . . . . . . . . . . . . . . 5

C. Proceedings Below . . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR DENYING THE PETITION . . . . . 12

I.

The question presented is factbound, splitless,

and unlikely to recur . . . . . . . . . . . . . . . . . . . . . . 13

A. There is no split in authority. Every

court requires § 2 plaintiffs to propose

a feasible remedy that does not alter the

State’s chosen form of government . . . . . . 14

B. Georgia’s Public Service Commission

is a distinctive elective body. . . . . . . . . . . . . 19

iii

TABLE OF CONTENTS—Continued

Page

II. This case is a poor vehicle to address

Petitioners’ arguments . . . . . . . . . . . . . . . . . . . . 21

III. The Eleventh Circuit’s decision was correct . . . 24

A. Courts cannot use § 2 to dismantle and

replace a State’s government . . . . . . . . . . . 25

B. Allen v. Milligan has no bearing on

this case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

TABLE OF AUTHORITIES

Page

Cases

Allen v. Milligan,

599 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Bone Shirt v. Hazeltine,

461 F.3d 1011 (8th Cir. 2006) . . . . . . . . . . . . . . . . 16, 17

Burrage v. United States,

571 U.S. 204 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Christian Ministerial All. v. Sanders,

44:19-cv-00402, 2023 WL 4745352 (E.D. Ark.

July 25, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Concerned Citizens for Equal. v. McDonald,

63 F.3d 413 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 28

Cousin v. Sundquist,

145 F.3d 818 (6th Cir. 1998) . . . . . . . . . . . . . . . . . 16, 19

Gonzalez v. City of Aurora,

535 F.3d 594 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . 1, 25

Greater Birmingham Ministries v.

Sec’y of State for the State of Ala.,

992 F.3d 1299 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . 21

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

v

TABLE OF AUTHORITIES—Continued

Page

Holder v. Hall,

512 U.S. 874 (1994) . . . . 1, 2, 4, 11, 13–16, 19, 22, 25, 28–30

Johnson v. De Grandy,

512 U.S. 997 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

Large v. Fremont County,

670 F.3d 1133 (10th Cir. 2012) . . . . . . . . . . . . . . . 16–18

League of Utd. Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

League of Utd. Latin Am. Citizens, Council No.

4434 v. Clements,

999 F.2d 831 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . 15

Lowery v. Deal,

850 F. Supp. 2d 1326 (N.D. Ga. 2012) . . . . . . . . . . . . 16

Mallory v. Ohio,

38 F. Supp. 2d 525 (S.D. Ohio 1997) . . . . . . . . . . . . . 16

McLane Co. v. EEOC,

581 U.S. 72 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

McNeil v. Springfield Park Dist.,

851 F.2d 937 (7th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 28

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) . . . . . . . . 2, 15–17, 25, 27

vi

TABLE OF AUTHORITIES—Continued

Page

Reed v. Town of Babylon,

914 F. Supp. 843 (E.D.N.Y. 1996) . . . . . . . . . . . . . . . . 16

Rose v. Raffensperger,

584 F. Supp. 3d 1278 (N.D. Ga. 2022) . . . . . . . . . . . . 23

Rose v. Raffensperger,

No. 1:20-cv-02921

(N.D. Ga. Aug. 9, 2022) . . . . . . . . . . . . . . . . 6–11, 23, 24

S. Christian Leadership Conf. of Alabama v.

Sessions,

56 F.3d 1281 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . 6

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . 16

Thornburg v. Gingles,

478 U.S. 30 (1986) . . . . . . . . . . . . . . . . 2, 4, 5, 10, 11, 13,

14, 16, 19, 22–24, 27–30

Statutes and Other Authorities

52 U.S.C. § 10301 . . . . . . . . . . . . . . . . . . 3, 4, 12, 21, 22, 24

Ga. Const. art. IV, § 1, ¶ I(a) . . . . . . . . . . . . . . . . . . . . . . . 1

O.C.G.A. § 46-2-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1

INTRODUCTION

Petitioners ask this Court to weigh in on a splitless

dispute regarding the distinctive structure of Georgia’s

Public Service Commission. The Commission is a state

agency that regulates utilities. See Ga. Const. art. IV,

§ 1, ¶ I(a). It sets prices, issues permits to construct new

energy facilities, regulates infrastructure, and acts as a

judicial body for various disputes. It is a constitutionally

created agency with statewide jurisdiction, and its five

Commissioners are elected by the entire State.

Petitioners filed a claim under Section 2 of the Voting

Rights Act, hoping to transform the Commission into

a body made up of representatives elected via singlemember districts, but the Eleventh Circuit rightly denied

that request, and there is no need for further review.

Petitioners’ proposed remedy would fundamentally alter

the form of the agency, transforming it into a sort of

second legislature with regional representatives. Instead

of Commissioners working on behalf of all Georgians as

statewide officials, Petitioners prefer local representatives,

beholden to regionalized special interests, who compete

with other Commissioners to secure the greatest benefits

for their districts.

But, as the panel noted and Petitioners do not dispute,

no court has ever used § 2 to jettison a statewide election

scheme for statewide agency officers, and for good reason.

To make out a vote dilution claim, plaintiffs have to

establish that their votes are diluted as compared to some

“benchmark.” Holder v. Hall, 512 U.S. 874, 880 (1994); see

also, e.g., Gonzalez v. City of Aurora, 535 F.3d 594, 598 (7th

Cir. 2008) (A court must ask: “Diluted relative to what?”).

2

Plaintiffs have to propose a remedy that would rectify the

supposed dilution. Thornburg v. Gingles, 478 U.S. 30, 50

n.17 (1986). And to do that, the proposed remedy must

involve the same form of government. Nothing in the text

of 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 v. Smith,

39 F.3d 1494, 1531 (11th Cir. 1994). Plaintiffs cannot, for

instance, propose a remedy that would change a single

Commissioner into a multi-member commission, because

there is no vote dilution if, to prove dilution, you have to

change the form of government. Holder, 512 U.S. at 881.

Plaintiffs quibble about whether their proposed

remedy would in fact alter Georgia’s chosen form of

government, but their arguments are novel, erroneous,

and require no further review. As the Eleventh Circuit

explained, the Commission is distinctive: it is a statewide,

quasi-legislative, quasi-judicial agency where each of

the five Commissioners must reside in particular areas

but are elected statewide. See Pet.App.3a–4a. The

Commission makes decisions for the whole State, and

it also adjudicates disputes within the State. Plaintiffs

argue that the Commission is not really judicial, that

the Eleventh Circuit should not have relied on certain

testimony, and other such nits, but there is no reason for

this Court to dive into disputes about the particular facts

of a single state agency.

In any event, there is no split of authority about any

of this. Every circuit requires plaintiffs to propose a

viable remedy; no circuit lets federal courts rework the

basic features of a State’s government. Petitioners barely

even assert otherwise, and their few cited cases reinforce

3

the distinction between an average § 2 challenge and

their novel challenge to a statewide agency’s composition.

“[T]raditional” § 2 claims, like those challenging singlemember district lines, do propose remedies that preserve

the basic features of government. Pet.App.10a–12a. That

simply is not the case with a challenge to the structure

of a state agency.

On top of everything else, this case is a bad vehicle

for review. Even if Petitioners were correct on this

issue, their claim would fail anyway. To start, they

failed to establish that voting in Georgia is racially

polarized. They did show that black Georgians tend to

vote for Democrats and white Georgians tend to vote for

Republicans, but that divergence is explained by voters’

partisan preferences, not their race. Black voters in

Georgia are not losing Commission elections “on account

of race.” 52 U.S.C. § 10301(a). Asian Democrats, Latino

Democrats—everyone who votes for Democrats is in

the same boat, so black voters have exactly the same

“opportunity” to “participate in the political process and

to elect representatives of their choice.” Id. § 10301(b).

Likewise, the district court made numerous errors in

its totality analysis. The district court held that multiple

factors favored the State, yet ruled against the State

because of, inter alia, its view that the State needed to

prove the validity of its policy choices, a legally erroneous

burden-shifting regime. See Pet.App.59a–75a. So even

if Petitioners had a point on the question presented—and

they do not—it is not dispositive anyway.

This Court need not act as a court of “first view,”

McLane Co. v. EEOC, 581 U.S. 72, 85 (2017) (quotation

4

omitted), on Petitioners’ novel theory. The petition should

be denied.

STATEMENT

A.

Governing Legal Framework

Section 2 of the Voting Rights Act prohibits state

and local governments from using any “practice” or

“procedure” that “results in a denial or abridgement

of the right … to vote on account of race or color.” 52

U.S.C. § 10301(a). The statute is violated when, “based

on the totality of circumstances,” members of a minority

community “have less opportunity than other members

of the electorate to participate in the political process and

to elect representatives of their choice.” Id. § 10301(b).

Crucially, while the statute guarantees equality of

opportunity, it specifically disclaims a right to proportional

representation. Id.

Claims of vote dilution allege that a minority group

has been “submerg[ed]” within a majority so as to

“minimize or cancel out” the minority’s voting strength.

Gingles, 478 U.S. at 46–47. Plaintiffs must satisfy three

preconditions. First, they must show that the minority

group has “the potential to elect representatives in the

absence of the challenged structure.” Id. at 50 n.17. This

requires the plaintiff to identify a “benchmark,” i.e., an

alternative election scheme in which the minority group

would have greater political success. Holder, 512 U.S. at

881. Second, they must show that the minority group is

“politically cohesive.” Gingles, 478 U.S. at 51. And third,

they must show that the majority votes as a racial bloc

to defeat the minority group’s preferred candidates. Id.

5

Establishing the preconditions is necessary for any

successful § 2 claim, but not sufficient. Plaintiffs who do

so must then show, by the totality of the circumstances,

that the challenged practice “result[s] in unequal access

to the electoral process.” Id. at 46; see also id. at 36–37

(identifying the nine factors usually considered at this

stage).

B. Factual Background

The Public Service Commission is a state body that

regulates utilities across the State of Georgia. Pet.

App.3a. It is comprised of five Commissioners, whose

responsibilities are “significant” and “wide-ranging.” Pet.

App.3a. It decides what rates utility providers may charge

their customers, controls permits for constructing new

power plants, regulates the installation and maintenance

of landlines and other communications technologies, and

so forth. Pet.App.3a.

The Commission has both “quasi-legislative” and

“quasi-judicial” functions. Pet.App.3a. Sometimes, it

sets rates, grants permits, and enacts regulations like

a legislature or regulatory body would. Other times,

it conducts proceedings as an adjudicatory body, with

adversarial proceedings. It hears witnesses and allows

cross-examination, holds hearings, makes evidentiary

rulings, and weighs testimony, just like a court. Pet.

App.3a.

Because the Commission is a statewide agency with

authority over the whole State, the Commission’s five

members are chosen through statewide elections, and

have been since 1906. Pet.App.3a–5a, 22a. This system

6

was “deliberately chosen to advance policy interests that

the Georgia General Assembly deemed important.” Pet.

App.4a. It ensures that Commissioners are not beholden

to regionalized interests and instead work for the benefit

of the State as a whole. Pet.App.4a–5a. This is especially

important when it acts in its adjudicative capacity, as it

avoids the problem or appearance of “home cooking.” S.

Christian Leadership Conf. of Alabama v. Sessions, 56

F.3d 1281, 1297 (11th Cir. 1995) (en banc).

While Commissioners are elected in statewide

elections, they have to reside in one of five different

residency districts. O.C.G.A. § 46-2-1(a). That is, a

candidate for District 1 Commissioner must live in District

1, but the entire State votes on his candidacy. Pet.App.4a;

O.C.G.A. §46-2-1. This hybrid scheme of district residency

requirements and statewide elections ensures that the

Commission serves the interests of the entire State:

without the residency requirement, Commissioners might

all reside in one highly populated part of the state (like

Atlanta) and thus be tempted to prioritize that area’s

needs over others.

All current Commissioners are Republicans; four

are white and one is black. Trial Tr. at 609, Rose v.

Raffensperger, No. 1:20-cv-02921 (N.D. Ga. Aug. 9, 2022),

ECF No. 158; Popick Expert Rpt. at 9–15, Rose, No.

1:20-cv-02921 (N.D. Ga. July 11, 2022), ECF No. 146-8.

Republicans have generally prevailed in recent statewide

elections. Although other state elections have become more

competitive recently, Republicans dominate Commission

elections. Republicans have won every Commission seat

since David Burgess, a black Democrat, won election in

2000. Trial Tr. at 477–79, Rose, No. 1:20-cv-02921 (N.D.

Ga. July 5, 2022), ECF No. 141; Pet.App.44a–45a.

7

Georgia’s other elected officials are racially diverse

too. One of Georgia’s two U.S. Senators is black. And

black candidates have won more than a third of the

State’s congressional seats and roughly a quarter of the

state legislature. In other words, black Georgians, who

comprise 32% of the State’s population, Pet.App.45a,

are generally successful and often more successful than

proportionality would suggest.

C.

Proceedings Below

Petitioners, four black voters, filed an action

challenging the Commission’s statewide structure in

July 2020. Although they have never been prevented

from voting or registering to vote, they alleged that the

Commission’s statewide system of election dilutes their

votes in violation of § 2 of the Voting Rights Act. Pet.

App.12a–13a, 38a–39a. As a remedy, they asked the

district court to throw out the Commission’s more-than-acentury-old statewide system and implement a new regime

of single-member district representatives, including a

majority-black district based in Atlanta. Pet.App.13a.

1. Via a motion to dismiss and motion for summary

judgment, the Secretary argued that Petitioners’ challenge

could not succeed because their proposed remedy would

fundamentally alter the structure of the Commission. See

Mot. to Dismiss at 11, Rose, No. 1:20-cv-02921 (N.D. Ga.

Aug. 14, 2020), ECF. No. 22-1; Mot. for Summ. J., Rose,

No. 1:20-cv-02921 (N.D. Ga. July 9, 2021), ECF No. 80-1.

But the district court denied those motions and set the

matter for trial. Pet.App.13a–14a.

8

At trial, the Secretary again argued that Petitioners’

proposed remedy failed because it would alter Georgia’s

form of government. Trial Tr. at 830–37, Rose, No. 1:20cv-02921 (N.D. Ga. July 5, 2022), ECF. No. 143. For

instance, the Secretary relied on testimony from each

of the current Commissioners. The Commission Chair,

Tricia Pridemore, testified that Commissioners “don’t

fight” over decisions like which districts get new facilities

or whether customers in different districts should pay

different rates. Pet.App.5a. Instead, they “work in the

best interest of the whole state.” Pet.App.48a. Singlemember districts, on the other hand, would introduce

“favoritism and politics into utility regulation.” Pet.

App.48a. She also explained that the Commission hears

cases as an adjudicatory body, such as permitting cases.

Pet.App.36a–37a.

The parties also disputed the cause of voting patterns

in Georgia. One of Petitioners’ experts, Dr. Stephen

Popick, produced evidence that (1) a majority of black

voters voted for Democrats, (2) a majority of white voters

voted for Republicans, and (3) the Democrats consistently

lost to the Republicans. Pet.App.42a; Trial Tr. at 245,

Rose, No. 20-cv-02921 (N.D. Ga. July 5, 2022), ECF. No.

140. This assessment was based on eleven Commission

elections between 2012 and 2020. Pet.App.42a; Pet. at 10.

He did not consider any other elections. More importantly,

he—by his own admission—did not try to distinguish

race-based voting patterns from partisan voting patterns.

See Trial Tr. at 200, 230–31, Rose, No. 20-cv-02921 (July

5, 2022), ECF. No. 140. And he acknowledged that black

voters have never preferred a Republican in any Georgia

election. Id. at 245.

9

By contrast, the Secretary’s expert witness, Dr.

Michael Barber, did investigate the reason for polarization

in Georgia elections. To that end, he made two key

findings. First, he explained that black voters support

Democratic candidates for Commissioner at a consistent

rate regardless of the candidate’s race. Pet.App.45a–46a.

The same was true for white voters: their opposition to

Democrats does not change based on the candidate’s race.

Pet.App.46a. Second, Dr. Barber showed that, when

controlling for race, partisanship strongly predicts voting

behavior in other statewide and congressional races in

Georgia. Trial Tr. at 645–46, Rose, No. 20-cv-02921 (N.D.

Ga. July 5, 2022), ECF No. 142. These findings strongly

suggested that polarization in Georgia was a matter of

partisanship, not race. Id. at 637–38.

2. The district court ruled in Petitioners’ favor. The

court rejected the Secretary’s argument that Petitioners’

claim was beyond the scope of § 2 because it would require

fundamental changes to the structure of the Public Service

Commission. The court acknowledged the State’s interest

in a statewide structure, as articulated by Chairperson

Pridemore. Pet.App.73a–74a. But, in seemingly circular

logic, it ultimately concluded that, because changing to

a districted, representative structure was feasible (i.e.,

technically possible), it was a permissible remedy. Pet.

App.78a–79a.

On the question of racial polarization, the district

court decided that it was “difficult if not impossible

to disentangle” partisan explanations from racial

explanations. Pet.App.47a. So the court, like Petitioners’

expert, didn’t even try. It held that, simply because black

voters tended to vote for Democrats and non-black voters

10

tended to vote for Republicans, Petitioners had established

racial causation. See Pet.App.47a, 57a, 60a–61a.

Finally, the district court considered the Senate

Factors. Although it found that some factors favored

the Secretary, it concluded that the totality of the

circumstances supported a finding of vote dilution. Pet.

App.59a–75a. But the district court’s analysis of factor

two (racial polarization), which it weighed “more heavily,”

incorporated the same errors that plagued its analysis

of polarization at the Gingles preconditions stage. Pet.

App.59a–62a. And on the question whether the State’s

policy was “tenuous,” it shifted the burden to the State

to prove a justification for the statewide Commission

elections and then decided, with little analysis, that it had

failed to do so. Pet.App.72a–74a.

The district court permanently enjoined the Secretary

from administering statewide elections for the Public

Service Commission. Pet.App.81a–82a. The immediate

effect of the injunction was to cancel the impending

November 2022 elections for two seats on the Commission.

Pet.App.80a–81a. So the district court decided that

the Commissioners whose terms would have expired at

that election—the very Commissioners who Petitioners

argued were elected in violation of § 2—would continue

as “holdover[s]” in their positions until an election with

single-member districts could be held. Pet.App.80a.

3. The Secretary appealed, arguing that the district

court erred by failing to distinguish racial from partisan

polarization. See Appellant’s Br. at 26–49, Rose v. Sec’y,

State of Ga., No. 22-12593 (11th Cir. Sept. 19, 2022). The

Secretary also reiterated his argument that Petitioners’

11

proposed remedy would impermissibly alter the structure

of the Public Service Commission. Id. at 49–59.

The Eleventh Circuit agreed with the Secretary.

Petitioners had not satisfied the first Gingles precondition

because their proposal would, “for the first time ever,”

“dismantle” a statewide organ of government and “replace

it with an entirely new districted system.” Pet.App.16a,

17a. And that is not a “viable” remedy. Pet.App.17a. The

first Gingles precondition, the panel explained, requires

plaintiffs “to offer a satisfactory remedial plan.” Pet.

App.7a–8a (alteration adopted and quotation omitted);

see also Gingles, 478 U.S. at 88 (O’Connor, J., concurring)

(“In order to” gauge vote dilution, “a court must have an

idea in mind of how hard it ‘should’ be for minority voters

to elect their preferred candidates under an acceptable

system.”). And that remedy must be a “reasonable

benchmark” to compare against the challenged election

scheme. Pet.App.26a (citing Holder, 512 U.S. at 880–81).

But a benchmark is not reasonable if it would require

replacing the challenged system with an entirely new form

of government. Pet.App.16a. And Petitioners’ proposal—

to turn the Commission from a body of statewide officers

into a collection of members elected from single-member

districts—would do just that. Pet.App.16a.

Chang ing from a statew ide system to singlemember districts, the panel explained, “would clearly

affect the inner-workings of the [Commission] because

Commissioners would be serving a new constituency—

their respective districts rather than the State as a

whole.” Pet.App.22a–23a. Commissioners would face

greater pressure from “localized special interests” in

their respective districts. Pet.App.23a.

12

The panel was clear, however, that it was not holding

that “plaintiffs could never prevail when asserting a

Section 2 vote dilution claim against a statewide body.”

Pet.App.26a. “Instead, [the panel] merely reaffirm[ed] the

principle that plaintiffs must propose a remedy within the

confines of the state’s chosen model of government when

bringing such a claim.” Pet.App.26a.

REASONS FOR DENYING THE PETITION

The petition does not warrant review for at least

three reasons. First, this decision, based on the unique

characteristics of Georgia’s Public Service Commission,

implicates no split of authority or other reason to grant

review. The Eleventh Circuit’s decision straightforwardly

applied both its own precedent and this Court’s, both

of which require § 2 plaintiffs to propose a workable

comparator. Petitioners’ novel contrary theory is wrong,

but even if that is contestable, it is novel, and there is no

reason for this Court to wade in now.

Second, the question presented is not even dispositive.

For one, Petitioners failed to show that any purported

lack of black electoral success in Commission elections

is “on account of race,” 52 U.S.C. § 10301(a), rather

than partisanship. Black voters in Georgia have the

same opportunities as everyone else, as evidenced by

the extraordinary success of black and black-preferred

candidates across the State. Black voters do largely

prefer Democrats, however, and Democrats have

been unsuccessful in Commission elections. That is a

straightforward case of partisan disagreement, not a lack

of equal opportunity “on account of race.” Id. Moreover,

Petitioners failed to show that the totality of circumstances

13

favors a finding of vote dilution. The district court’s

contrary conclusion was riddled with errors—factual and

legal—including impermissibly shifting burdens onto the

State. There is little reason to intervene in this case on

a question that is not outcome-determinative.

Third, the Eleventh Circuit’s decision was correct.

Section 2 requires plaintiffs to propose an alternative

election scheme in which they could elect representatives

of their choice. See Gingles, 478 U.S. at 50 n.17; Holder,

512 U.S. at 880. But there is nothing in the text of

§ 2 suggesting that federal courts have the power to

fundamentally redesign state governments. Nor is there

any “workable standard” they could use to choose between

different forms of government, even if they wanted to.

Holder, 512 U.S. at 881. So Petitioners’ proposal to chop

up the Commission into single-member representative

districts must fail.

I.

The question presented is factbound, splitless, and

unlikely to recur.

The Eleventh Circuit’s decision is a straightforward

application of this Court’s vote dilution caselaw, and every

circuit requires § 2 plaintiffs to propose a valid remedy.

Petitioners barely even try to suggest there is a split of

authority, because there isn’t one. Plus, Georgia’s Public

Service Commission is a unique institution. In other

cases, with other government bodies, the outcome may

be different, and there is no reason to intervene here,

specifically.

14

A.

There is no split in authority. Every court

requires § 2 plaintiffs to propose a feasible

remedy that does not alter the State’s chosen

form of government.

T he Elevent h Ci rcu it ’s decision here wa s a

straightforward application of § 2. The panel held that,

because switching from statewide to district-by-district

elections would fundamentally change the Public Service

Commission, Petitioners failed to propose a viable remedy

and therefore could not make out a prima facie case of

vote dilution. Pet.App.7a–8a, 22a–23a, 25a–26a. That is

exactly how this Court has said vote dilution claims should

be evaluated, and every circuit court that has addressed

the issue has said the same.

Start with this Court’s cases. In Gingles, the Court

held that § 2 requires a plaintiff alleging vote dilution to

show that the relevant minority group is large enough and

compact enough that it could form the majority of a voting

district and elect its preferred representative but is unable

to do so under the existing electoral map because its votes

are submerged within (i.e., diluted by) the majority. 478

U.S. at 50–51. As the Court later explained in Holder,

this means a plaintiff must offer a “reasonable alternative”

election scheme for use as a “benchmark against which to

measure the existing voting practice.” 512 U.S. at 880. If

there is no viable alternative, the existing electoral scheme

by definition does not dilute anyone’s voting power. Id.

at 881. And if the plaintiff’s proposed alternative is not

actually workable—for example, if it would fundamentally

alter the form of government by converting a singlemember commission into a multimember commission, as

the plaintiffs in Holder proposed—then they have failed

15

to provide a meaningful benchmark and cannot succeed

on their vote dilution claim. Id. at 881–82.

The Eleventh Circuit’s decision here is just an

application of that principle. “Under Holder,” the Eleventh

Circuit has explained, federal courts “may insist that a

state … operate a governmental structure fairly,” but they

may not “alter the state’s form of government.” Nipper, 39

F.3d at 1532. “Similarly, here, plaintiffs have not provided

a principled reason why a [Commission] comprising singlemember districts should be picked as the benchmark.”

Pet.App.26a.

Contrary to Petitioners’ half-hearted argument for

a circuit split, Pet. at 22–24, the Eleventh Circuit’s rule

reflects the unchallenged consensus among the federal

courts. Even before Holder, the Fifth Circuit rejected a

challenge to at-large judicial elections in Texas because

electing judges in single-member districts would change

the “office’s structure and function.” League of Utd. Latin

Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831,

869 (5th Cir. 1993). “The decision to make jurisdiction

and electoral bases coterminous … is a decision of what

constitutes a state court judge,” and “the people of

Texas have at least a substantial interest in defining the

structure and qualifications of their judiciary.” Id. at 872.

So too here; the statewide electoral system is a “defining

feature” of the Public Service Commission, and the people

of Georgia have a “strong interes[t]” in preserving that

structure. Pet.App.23a, 26a. That is especially true since

the Commission acts in a judicial capacity in numerous

instances. Pet.App.3a, 27a.

16

In the wake of Holder, more circuits converged on

the same position. The Sixth Circuit, like the Eleventh,

has said that a plaintiff who offers an “inappropriate”

remedy loses even if they otherwise “me[e]t the Gingles

pre-conditions or satisf[y] the totality of the circumstances

test.” Cousin v. Sundquist, 145 F.3d 818, 831 (6th Cir.

1998); see also Bone Shirt v. Hazeltine, 461 F.3d 1011, 1025

(8th Cir. 2006) (Gruender, J., concurring) (observing that

“a plaintiff’s claims fail as a matter of law” if “no proper

and workable remedy exists” within the “context of the

challenged system” (quotation omitted)). In Sanchez v.

Colorado, the Tenth Circuit, quoting an earlier Eleventh

Circuit case, held that plaintiffs win on a vote dilution

claim only if they “can fashion a permissible remedy in the

particular context of the challenged system.” 97 F.3d 1303,

1311 (10th Cir. 1996) (quoting Nipper, 39 F.3d at 1531).

Indeed, federal courts regularly reject vote dilution

claims where plaintiffs fail to propose a remedy that

maintains the basic features of the challenged system.

See, e.g., Reed v. Town of Babylon, 914 F. Supp. 843, 866–

67 (E.D.N.Y. 1996); Mallory v. Ohio, 38 F. Supp. 2d 525,

576–78 (S.D. Ohio 1997); Lowery v. Deal, 850 F. Supp. 2d

1326, 1335–36 (N.D. Ga. 2012); Christian Ministerial All.

v. Sanders, 4:19-cv-00402, 2023 WL 4745352, at *21–22

(E.D. Ark. July 25, 2023).

Petitioners, on the other hand, have not identified

any case in conflict with the Eleventh Circuit’s decision.

They point to two circuit court decisions, but neither has

anything material in common with this case. See Pet.

at 22 (citing Bone Shirt, 461 F.3d at 1016, 1018; Large v.

Fremont County, 670 F.3d 1133, 1145 (10th Cir. 2012)).

17

Bone Shirt merely required South Dakota to create

an additional majority-Indian legislative district in a

plan that already included single-member districts. 461

F.3d at 1024. Before the litigation, South Dakota used

a hybrid system of dual- and single-member districts.

Most legislative districts “elected two members of the

state house,” but the plan also included single-member

districts. Id. at 1016. The Eighth Circuit merely required

South Dakota to redraw its district lines to create a third

majority-Indian single-member house district. Id. at 1024.

And adding one more single-member district to a plan that

already has them does not “dismantle” and “replace” the

system like Petitioners seek to do here. Pet.App.17a. The

case obviously would not have “come out the other way

if the Eighth Circuit had applied the Eleventh Circuit’s

rule,” Pet. at 24 n.3, because the court’s remedy explicitly

satisfied the rule. As Judge Gruender’s concurring opinion

noted, the remedy—adding one more district—preserved

“the particular context of the challenged system.” 461

F.3d at 1025 (quoting the Eleventh Circuit’s decision in

Nipper, 39 F.3d at 1530–31).

And Large v. Fremont County plainly supports the

decision below. There, the federal court imposed a remedy

specifically allowed by state law. Native American voters

challenged the at-large election system of Fremont

County’s five-member board of Commissioners. 670 F.3d

at 1135–36. Two remedies were proposed: (1) creating five

single-member districts or (2) creating one single-member

district with a Native American majority and otherwise

maintaining the at-large election system. Id. at 1136.

The Tenth Circuit rejected the hybrid scheme precisely

because it was “not authorized under Wyoming law.” Id.

On the other hand, Wyoming law specifically permitted

18

single-member districts in county commission elections.

Id. And federal courts, the Tenth Circuit affirmed, should

not impose remedies that unnecessarily conflict with state

law. Id. at 1148.

Petitioners go on to invoke a parade of supposed

horribles, see Pet. at 22–23, 30–31 (claiming the Eleventh

Circuit’s rule would preclude § 2 challenges to local

governments), but their parade falls flat. The Eleventh

Circuit just applied the same rule that all the circuits—

and this Court—apply. As the panel below noted, there

is a considerable difference between what Petitioners

are trying to do here (convert a statewide, quasi-judicial

agency from statewide elections to single-member

districts) and “traditional Section 2 vote dilution case[s],”

like Large, that challenge at-large elections “used by

governmental subunits within a state.” Pet.App.10a

(emphasis added). “[A]t the county level, there is little risk

of provincialism due to the county’s size.” Pet.App.24a.

But “there is much greater potential for divisive problems

to arise across an entire state.” Pet.App.24a. Likewise, a

State’s subunits are, by definition, based on line drawing

by a higher body. The borders of a State, however, are

not subject to the choice of the State’s voters.

Finally, perhaps recognizing that the circuits are

against them on whether plaintiffs must offer a workable

remedy, Petitioners try to manufacture a divide on when

in the § 2 analysis they should be required to do so. See

Pet. at 23 (suggesting the “State’s interest in maintaining

its electoral system” is better considered as part of the

“totality-of-circumstances analysis”). But as the panel

explained, it does not matter when a vote dilution plaintiff

has to propose a viable remedy; the “critical” point is that,

19

if they don’t, their claim fails. Pet.App.8a; see also Cousin,

145 F.3d at 831 (noting that, without a viable remedy,

plaintiffs fail even if they otherwise satisfy Gingles and

the totality of the circumstances test).

The cases Petitioners cite on this point do not say

otherwise. To be sure, Gingles instructs that courts

should wait until the totality-of-the-circumstances

phase to consider “whether the policy underlying” the

challenged practice “is tenuous.” 478 U.S. at 37, 45

(quotation omitted). And the cited cases do just that.

See Pet. at 23. But that question (whether governments

have a good reason for using the challenged electoral

practice) is different from the remedial question at the

center of the Eleventh Circuit’s decision here (whether

the practice can be abandoned without altering the

structure of the government itself ). For example, in

Holder, where plaintiffs sought to transform a county’s

sole Commissioner into a five-Commissioner board, this

Court did not ask whether the county had a good “policy”

argument for the one-Commissioner system. See 512

U.S. at 880–82. It rejected the proposed transformation

outright, because it would have changed the entire

structure of the commission for “no principled reason.”

Id. at 881. No circuit disagrees with that approach, and

there is no split for this Court to resolve.

B. Georgia’s Public Service Commission is a

distinctive elective body.

Certiorari is inappropriate for another reason: this

is a factbound dispute revolving around an unusual

governmental body. Even Petitioners acknowledge the

distinctiveness of Georgia’s scheme. See Pet. at 6; Pet.

20

App.23a n.14. There are not many (if any) other quasijudicial, statewide agencies with statewide elections and

particular residency requirements.

In other words, Petitioners ask this Court to review

a decision affecting, in all likelihood, only a single

commission in a single State. That is the narrowest kind

of error correction. Despite Petitioners’ sky-is-falling

rhetoric, the Eleventh Circuit’s decision will not “have

a cascading effect far beyond the reach of this case.”

Pet. at 4. It certainly will not affect challenges to local

governments that employ at-large elections. Contra Pet.

at 31. To the contrary, the decision below specifically

acknowledged that single-member districts are often

permissible remedies for vote dilution in local elections.

See Pet.App.24a.

On the other hand, to the extent they argue that

every statewide body must use single-member districts

to elect its members, see Pet. at 30–31, it is Petitioners

who are pushing an extreme, novel theory that no court

has accepted. This Court should not be the very first to

analyze Petitioners’ avant-garde ideas.

In sum, Petitioners ask this Court, “for the first

time ever,” to hold that statewide elections for a state

agency somehow dilute minority voting power. Pet.

App.16a. And for that never-before-found violation, they

request a novel remedy, urging the court to “replace

Georgia’s chosen form of government” by switching out

five statewide Commissioners for five representatives

beholden to separate districts. Pet.App.16a. No court

has ever awarded relief on such a claim, and there is no

need for this Court to do so now. Indeed, if Petitioners

21

were somehow correct that the Eleventh Circuit’s decision

here will precipitate a rash of federal courts rejecting

valid challenges to at-large election systems, see Pet. at

30–31, that is all the more reason to deny certiorari here.

If there is some error to correct, it will arise again. But

there isn’t, and it won’t.

II. This case is a poor vehicle to address Petitioners’

arguments.

Whether or not Petitioners are correct in their

contention that federal courts can use § 2 to reshape

a statewide governing body, it does not matter. The

Secretary should prevail any way, for at least two

independent reasons: (1) Petitioners failed to show that

black-preferred candidates in Georgia lose “on account

of race” rather than ordinary partisan politics, 52 U.S.C.

§ 10301(a), and (2) the totality of the circumstances favors

the Secretary, especially after correcting the district

court’s legal errors. There is no reason to grant review

in this posture.

1. Statutory text and caselaw both make clear that

vote dilution claims under § 2 fail unless the plaintiff can

show that minority voters lose elections because of race.

Start with the text. Section 2 prohibits the use of any

voting practice or procedure that “results in” the denial

or abridgment of the right to vote “on account of race or

color.” Id. So a plaintiff must show that a challenged

law—like a particular electoral scheme—causes them to

have less voting opportunity because of their race. See

Greater Birmingham Ministries v. Sec’y of State for the

State of Ala., 992 F.3d 1299, 1330 (11th Cir. 2021); Burrage

v. United States, 571 U.S. 204, 211 (2014) (“‘Results from’

22

imposes … a requirement of actual causality.” (quotation

omitted)); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176

(2009) (explaining that “on account of” means “because

of” and requires but-for causation).

In other words, the text of § 2 does not “guarantee”

that minority-preferred candidates will win every election.

League of Utd. Latin Am. Citizens v. Perry, 548 U.S.

399, 428 (2006) (“LULAC”) (quotation omitted). It simply

ensures an equal playing field when it comes to race. If

minority voters lose elections for non-racial reasons (like

ordinary, colorblind partisan politics), there is no § 2

violation because they have precisely the same opportunity

as “other members of the electorate.” 52 U.S.C. § 10301(b).

So, to prove that the majority votes “as a bloc … to

defeat the minority’s preferred candidate,” Gingles, 478

U.S. at 51, plaintiffs have to show that race causes the

problem, not ordinary partisanship. Racial minorities

have the same “obligation to pull, haul, and trade to find

common political ground” that affects all voters. Johnson

v. De Grandy, 512 U.S. 997, 1020 (1994). Justice White

emphasized this point in Gingles itself, explaining that the

key question is whether elections change based on race,

not simply whether white voters and black voters tend

to prefer different candidates. 478 U.S. at 83 (White, J.,

concurring). Indeed, he denied the lead opinion a majority

on this very point. Id. at 82. Section 2, he said, requires

more than the basic fact that “the majority of white

voters vote for different candidates than the majority of

the blacks.” Id. at 83. Otherwise, § 2 would be triggered

every time minority groups lose elections, but that isn’t

right because, in a democracy, “numerical minorities

lose elections.” Holder, 512 U.S. at 901 (Thomas, J.,

23

concurring). Holding otherwise would be taking a side

in “interest-group politics rather than a rule hedging

against racial discrimination.” Gingles, 478 U.S. at 83

(White, J., concurring).

Despite § 2’s clear focus on racial causation, the

district court in this case concluded that Petitioners could

satisfy Gingles simply by showing that the majority of

black Georgians tend to vote for different candidates

than the majority of non-black Georgians. Rose v.

Raffensperger, 584 F. Supp. 3d 1278, 1294–95 (N.D. Ga.

2022) (summary judgment order). So the court didn’t

even try to distinguish racial causation from ordinary,

colorblind partisan politics. Id. That was error; black

Georgians have the same electoral power and access

as Latino or Asian or white Georgians. The candidates

who fail tend to be Democrats, wholly regardless of

race—voting patterns show no sensitivity to the race

of the candidate, but extreme sensitivity to whether the

candidate is a Republican. See Trial Tr. at 643–46, Rose,

No. 1:20-cv-02921 (N.D. Ga. July 5, 2020), ECF No. 142.

Petitioners largely conceded that there was no

evidence of racial causation, just partisan differences

between black and white voters. See Appellees’ Br. at

46–63, Rose, No. 22-12593 (11th Cir. Oct. 19, 2022). Their

only real response was the (quite circular) argument that

partisan differences between black and white voters

are evidence of racial polarization because partisan

differences are (somehow) caused by race. See id. at 59.

2. Even if Petitioners could clear the Gingles

preconditions without evidence of genuinely racial

polarization, they would still have to show, “based on the

24

totality of the circumstances,” that the political process

in Georgia is not equally open to black voters. 52 U.S.C.

§ 10301(b). This analysis generally focuses on nine factors

identified in the 1982 Senate Report accompanying

the amendment of § 2. See Gingles, 478 U.S. at 44–45.

Here, the district court found that some of these factors

favored Petitioners, while others favored the Secretary,

ultimately concluding that the factors support a finding of

vote dilution. See Pet.App.59a–75a. But as the Secretary

explained on appeal, the district court’s analysis was shot

through with legal errors. See Appellant’s Br. at 60–63,

Rose, No. 22-12593 (11th Cir. Sept. 19, 2022).

For example, echoing the error in its Gingles

preconditions analysis, the district court held that factor

two (racial polarization) favors Petitioners because black

and white voters tend to vote for different candidates.

The court again refused to consider evidence that

partisanship, not race, drives those voting patterns.

Pet.App.60a. Other errors plagued the court’s analysis

of the remaining factors: the court relied on outdated

information, improperly shifted the burden of persuasion

onto the Secretary, and discounted the State’s legitimate

interests in ensuring that Public Service Commissioners

are accountable to the whole State rather than separate

districts. Pet.App.62a–75a.

So even if Petitioners prevailed before this Court,

their claim would fail for several other reasons. The Court

should deny the petition.

III. The Eleventh Circuit’s decision was correct.

The Eleventh Circuit’s rule tracks with settled

precedent and common sense. There can be no vote

25

dilution if the only way to “establish” it would be to

fundamentally alter the State’s form of government. That

is not vote dilution, because nothing has been diluted

compared to anything else.

A.

Courts cannot use § 2 to dismantle and replace

a State’s government.

This Court has emphasized that electoral schemes do

not violate § 2 just because minority voters lose elections.

See, e.g., LULAC, 548 U.S. at 428 (“The circumstance

that a group does not win elections does not resolve the

issue of vote dilution.”). Section 2 guarantees equality of

opportunity, not victory. De Grandy, 512 U.S. at 1014 n.11.

And there is “nothing in the Voting Rights Act” that

“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. Even if federal

courts wanted to compel States to restructure their

governments, they’d find it a difficult task, as “there is

no objective and workable standard” in the statute that

courts could use to choose between alternative models

of government. Holder, 512 U.S. at 881. So, to satisfy

§ 2, the plaintiff must identify a “reasonable alternative”

election scheme, id. at 880, that preserves the essential

features of the State’s chosen model of government,

Nipper, 39 F.3d at 1531. If there is no such alternative,

then there is no vote dilution—to dilute a vote means you

need a comparator, and with no comparator, there can be

no dilution. Gonzalez, 535 F.3d at 598 (“Diluted relative

to what benchmark?”).

26

Applying that rule to this case, Petitioners’ claim fails.

The people of Georgia have decided that the Public Service

Commission—a quasi-legislative, quasi-judicial agency

“with statewide authority and statewide responsibilities—

should be elected on a statewide basis.” Pet.App.22a.

Turning it into a collection of representatives elected from

single-member districts would “fundamentally change [its]

structure and operations.” Pet.App.22a. Commissioners

would be responsible to “their respective districts rather

than the State as a whole,” and consequently would be

more susceptible to “localized special interests.” Pet.

App.23a.

Plus, because the Commission is a quasi-judicial body

that functions in many ways like a court, it is important

that the Commissioners be and appear impartial. The

Commission “holds hearings, listens to witnesses,

makes evidentiary rulings, and weighs testimony from

stakeholders.” Pet.App.27a. It uses these adversarial

proceedings to make decisions about utility rates, whether

to permit power plant construction, and whether to assess

punitive fines. Pet.App.36a–37a. Electing Commissioners

from discrete parts of the State could give the appearance

of bias and “home cooking.” Pet.App.27a.

Petitioners quibble with (1) the Eleventh Circuit’s

determination that the Public Service Commission is a

quasi-judicial body and (2) the weight assigned by the

Eleventh Circuit to the State’s interest in preserving the

statewide nature of the Commission. See, e.g., Pet. at

27–28. But the Eleventh Circuit’s decision does not rest

entirely on the judicial nature of the Commission; it turns

on “a broader concern” about the limits of federal courts’

power under § 2 and the States’ interest in preserving

27

their basic “form of government.” Nipper, 39 F.3d at 1532.

In any event, that Petitioners’ disagreement with the

Eleventh Circuit turns on case-specific factual disputes—

like the Commission’s judicial function—just confirms it

is not a candidate for this Court’s review.

Petitioners also say the Eleventh Circuit’s decision

conflicts with Gingles and other vote dilution cases, but

their objections fall flat. First, they overstate the scope

of the decision to argue that it would preclude a finding of

vote dilution “in every case,” for both statewide and local

bodies. Pet. at 29. Not so; as the panel explained, plaintiffs

alleging vote dilution can prevail so long as they “propose

a remedy within the confines of the state’s chosen model of

government.” Pet.App.26a. That low bar will have no effect

on “traditional Section 2 vote dilution case[s]” seeking to

redraw single-member district lines, Pet.App.10a, because

those remedies don’t require changes to the basic structure

of government. See supra 18. Nor will it affect challenges

to local government elections, where there is less “risk

of provincialism” because the jurisdiction is smaller, Pet.

App.24a, and the lines are necessarily drawn by the State

(unlike a State’s own, immutable borders, which are beyond

the State’s control).

Petitioners also misread Gingles itself. If they were

correct that Gingles requires nothing more than “the

literal ability … to draw single-member districts,” then

the first Gingles requirement would be rendered toothless.

Nipper, 39 F.3d at 1531. Plaintiffs could always imagine

a scheme with more single-member districts, even if it

required—as it would here, where the current scheme

has no districts at all—changing the form of government

altogether. But that just begs the question posed by the

28

first Gingles precondition: if the “existing [form] of the

governmental body precludes a plaintiff from satisfying

the first prong of Gingles” because it is impossible to add

more districts, the plaintiff may not “circumvent” that

barrier simply by “hypothesiz[ing] some other political

structure under which the first Gingles precondition would

be met.” Concerned Citizens for Equal. v. McDonald, 63

F.3d 413, 417 (5th Cir. 1995); see also McNeil v. Springfield

Park Dist., 851 F.2d 937, 946 (7th Cir. 1988) (noting

this would “create a voting rights violation where none

presently exists”).

This Court has already rejected Petitioners’ logic.

In Holder, the plaintiffs argued that a county’s onecommissioner structure constituted vote dilution because,

if the county had five commissioners each elected from a

single-member district, minority voters would prevail in

one of those districts. 512 U.S. at 881. The Court rejected

that argument because there was “no principled reason”

for compelling the county to abandon its one-commissioner

structure (under which there was no vote dilution) in favor

of a five-commissioner districted structure (which would

have created a vote dilution problem). Id. at 881. But if

Petitioners here were correct that § 2 plaintiffs satisfy the

first Gingles threshold simply by imagining a different

political structure in which minority voters find greater

success because the form is different, see Pet. at 20–21,

Holder would have come out the other way.

Finally, Petitioners try to skirt the many flaws in their

case by noting that the district court did not specifically

require Georgia to adopt single-member districts for the

Commission. It simply instructed Georgia to choose a

“new manner” of selecting Commissioners that complies

29

with § 2. Pet. at 2–3. But that just puts the cart before

the horse. Section 2 plaintiffs must propose a reasonable

alternative election scheme in order to prove vote dilution

in the first place. See Holder, 512 U.S. at 880–81. If the

alternative isn’t reasonable, then there is no vote dilution.

Courts can’t assume vote dilution in the abstract, simply

because minority voters lose elections, and then import

that conclusion backwards into the Gingles preconditions.

(Not to mention that Petitioners never made this argument

previously, anyway.)

B. Allen v. Milligan has no bearing on this case.

It is perhaps understandable that Petitioners rely

heavily on this Court’s recent decision in Allen v. Milligan,

599 U.S. 1 (2023). They hope the Court will equate

Georgia’s Public Service Commission with Alabama’s

Congressional map, wash, rinse, and repeat. But Milligan

has nothing to do with the question here and is entirely

consistent with the Eleventh Circuit’s decision, as that

court already explained.

Milligan involved a challenge to a single-member

district scheme; the plaintiffs never asked the court to

change Alabama’s form of government. Id. at 16–17. Here,

by contrast, Petitioners challenge the structure of the

Commission itself. Pet.App.2a. And unlike Alabama’s

proposed “race-neutral benchmark,” which would have

imposed a new obstacle for § 2 plaintiffs to overcome, the

Eleventh Circuit in this case has not “grafted” anything

onto the traditional Gingles test. Milligan, 599 U.S. at

33. The need to propose a viable remedy and comparator

is already part of the first Gingles precondition as federal

courts (including this one) have applied it for decades. See

Pet.App.7a–8a, 16a n.11.

30

If anything, Milligan supports the Eleventh Circuit’s

rule. Per Milligan, the reason why the first Gingles

precondition must focus on a specific map adduced by the

plaintiff, rather than a race-neutral map generated by

computers, is because “[d]eviation from [the plaintiff’s]

map shows it is possible that the State’s map has a

disparate effect on account of race.” 599 U.S. at 26. Then

the rest of the Gingles framework (the second and third

preconditions and the totality-of-the-circumstances test)

kicks in to determine “whether that possibility is reality.”

Id. Here, it is impossible to alter the election scheme as

Petitioners desire without fundamentally redesigning the

Public Service Commission. See Pet.App.17a, 25a–26a. So

there is no “possib[ility]” that the Commission’s statewide

election scheme “has a disparate effect on account of race.”

Milligan, 599 U.S. at 26.

***

At bottom, Petitioners assert that a single-member

district representative scheme is a comparator for the

Commission because it could, theoretically, be employed.

“But it is one thing to say that a benchmark can be found,

quite another to give a convincing reason for finding it

in the first place.” Holder, 512 U.S. at 882. Georgia’s

Public Service Commission is a statewide agency, elected

statewide. No court has ever previously held what

Petitioners have asked federal courts to hold here, and

this Court need not dive in to address their novel theories.

31

CONCLUSION

For the reasons set out above, this Court should deny

the petition.

M ay 2024

Respectfully submitted,

Christopher M. Carr

Attorney General

Stephen J. Petrany

Solicitor General

Counsel of Record

Paul R. Draper

Deputy Solicitor General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondent