Petition for Writ of Certiorari — Barber v. Cox

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Supreme Ceurt, U.S.

FILEO

02 678 OCT 302002

No.

Jn The

Supreme Court of the Anited States

J. MAC BARBER,

Petitioner,

CATHY COxX, in her official capacity as

Secretary of State of Georgia,

Respondent.

On Petition For A Writ Of Certiorari

To The Supreme Court Of The State Of Georgia

PETITION FOR A WRIT OF CERTIORARI

GEORGE BRIAN SPEARS

Counsel of Record

Georgia Bar No. 670112

Atlanta, Georgia 30306

404-872-7086

NICKOLAS P. CHILIVIS

Georgia Bar No. 124800

CHILIVIS, COCHRAN, LARKINS &

BEVER, LLP

3127 Maple Drive, N.E.

Atlanta, Georgia 30305

404-233-4171

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. In 1998, the State of Georgia adopted one year

district residency requirements for posts of the Public

Service Commission for its members and concurrently

retained a system of staggered terms of office. Its members

are elected on a state-wide basis. Petitioner Barber has

continuously resided in the District for which elections are

to be held in November of 2002. However, he moved from

one county within that district to another county within

that district ten months before the November election. As

a result of redistricting in April of 2002, Barber’s former

county of residence is no longer within the district to

which he qualified to be a candidate. The Georgia Su-

preme Court removed Barber from the primary ele_tion

ballot in August of 2002, six days before the primary

election, ruling that he had not been continuously a

resident of the newly configured electoral district for a full

year prior to the November, 2002, election. The question

“resented is whether the application of the one year

durational residence requirement of Georgia Law, as

applied to the Petitioner, resulted in a violation of the

Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution.

2. Currently available census information reflects

that up to 43.3 million Americans change their residence

in any given year. Where imposition of one year residency

requirements can have the effect of disqualifying many

thousands of otherwise qualified eligible office seekers in

Georgia elections, and indeed had the effect of disqualify-

ing Petitioner Barber, the question presented is whether

Georgia’s invocation of a one year durational residence

requirement must serve a “compelling state interest.”

QUESTIONS PRESENTED - Continued

3. This court’s jurisprudence concerning durational

residency requirements in the area of voter eligibility and

candidate qualifications has resulted in considerable

discrepancies in the decisions of the Courts of the United

States and the Courts of the States when called upon to

determine the constitutionality of durational residency

requirements for state-wide elective office. Although it

appears that this Court requires application of a “strict

scrutiny” test to the constitutionality of State durational

residency requirements as applied to candidate eligibility,

the test has been subjected to dramatically disparate

interpretation. The question presented is whether a

compelling state interest is served by Georgia’s one year

durational residence requirement for candidates who,

although statutorily required to reside for one year within

a prescribed district, nevertheless are elected by the voters

of the state as a whole.

LIST OF PARTIES

The caption contains the names of all parties to the

proceeding which are as follows:

J. MAC BARBER

CATHY COX, in her official capacity as Secretary

of State, State of Georgia

TABLE OF CONTENTS

Page

QUBS TIONG PIRI 6 Be ec ccccccesccscccccesecesscoscceccesees i

EE I IEE scintisitth:sinccesaienenseeniaumneunsnnsadnsieaoiaaen iii

Ee Se TIED iccishncvcccsisennsnniecenendpinnenenaasbnns iv

OMe COEF AAT SINE A MED siveseccercesenssnnccenssnstevevnoess v

Se ENTE TIT icisiccnitacsnnnudisbednbinseenubauininnniuncnehinke 1

IIT cacanditsceacccchcseivupskaehcenidiikanebdaaccabasiaeas 1

PRIMARY CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE................. 1

STATEMENT OF THE CASE....................csecceeeeceeeees 2

REASONS FOR GRANTING THE WRIT ................. 12

A. The Writ should be granted because a deci-

sion by this Court is needed to resolve ap-

parent inconsistencies in decisions of the

Federal Courts along with Courts of the

States regarding whether the imposition of

residency requirements upon candidates may

only be justified by a showing of compelling

I Be cctsencstinbivsactseasenventasianioetiioniianis 12

B. The Writ should be granted because the

frequency with which citizens of the United

States change their residency presents an

urgent need for clarification of the standards

of the law from this Court to ensure that

citizens can continue to exercise their fun-

damental right to stand for elective office,

particularly in years surrounding the decen-

nial redrawing of district lines.....................6. 20

TABLE OF AUTHORITIES

Page

CASES

Brewster v. Johnson, 260 Ark. 450, 541 S.W.2d 306

(Ark. 1976).......:ccsscsccesssssseseessessseessessrsnseesssnnensanseansssnenses 19

Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31

L.Eid.2 92 (1972) .......ccccccccccsscessssserercesessssseeeenneeeees 22, 23

Callaway v. Samson, 193 FSupp.2d 783 (D.N.J.

QOOD).....ccecccsescsssccecccessscssccscsscsrcensssnscsscevonsesssessseseseseess 18

Chimento v. Stark, 353 F.Supp. 1211 (D.N.H. 1975)

(three judge panel), aff'd without op., 414 USS.

802, 38 L.Ed.2d 39, 94 S.Ct. 125 (19793) ............ 11, 14, 15

Corrigan v. City of Newaygo, 55 F.3d 1211 (6th Cir.

1995) .....cccccoscccsssessscssscsssccssevssscesssessssecsessesserenssssecsscsonsees 13

Daves v. City of Longwood, 423 F.Supp. 503 (M.D.

Fla. 1976)........c.ccccccssssscccesssssccsssssrecesssecsssssssecseneseossnesens 13

Donatelli v. Mitchell, 2 F.3d 508 (3rd Cir. 1993) ...........-++ 13

Dunn v. Blumstein, 405 U.S. 341, 92 S.Ct. 1002.............. 21

Gilbert v. State, 526 P.2d 1131 (Alaska 1974) ...........-++++ 19

Gralike v. Walsh, 483 S.W.2d 70 (Mo. 1972).......:-sseeseee 19

Headlee v. Franklin County Board of Elections, 368

F.Supp. 999 (D.C. Ohi0 1973)........:seeseeerereesereseeenees 8,19

Illinois State Board of Elections v. Socialist Workers

Party, 440 U.S. 173, 99 S.Ct. 983 ITE ccicsnnievanntnabepenen 11

Joseph v. Birmingham, 510 F.Supp. 1319 (E.D.

Mich. 1981)..........cccccccssesssssccssssssssceesssnscesssssssreresssesoeeees 12

Robertson v. Bartels, 150 F.Supp.2d 691 (D.C.N.J.

2001), aff’d without op., 122 S.Ct. 914, 151

Sik OS COI as cccnsccceasncnrceinorsvesentunecec 11, 14, 18, 19

TABLE OF AUTHORITIES — Continued

Page

Russell v. Hathaway, 423 F.Supp. 833 (N.D. Texas

Sununu v. Stark, 383 F.Supp. 1287 (D.N.H. 1974)

(three judge panel), aff’d without op., 420 U.S.

958, 43 L.Ed.2d 435, 95 S.Ct. 1346 (1975) .............. 11, 14

Turner v. Fouche, 396 U.S. 346, 24 L.Ed.2d 267, 90

BCR, BEE Ca oa necseccssccstnicenteiannitansannaieanndiieiian 20

Walker v. Yucht, 352 F.Supp. 85 (D.Del. 1972).................. 19

Wenke v. Hitchock, 6 Cal.3d 746, 100 Cal. Rptr. 290,

GOG FOG RAG CR Tae savticssnsscstcssctienianenned 15, 17, 18, 23

White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470

COR es Bi Di necescsveseosssssssascinedesenntausassensuncataaueanaiienien 19

STATUTES

BB UBL. © TEBE vucvcscecrscrrintvatiasinsineninuamadanaiale 1

Official Code of Georgia Annotated § 46-2-1(b)............. 4,10

UNITED STATES CONSTITUTION

PInOh AGRI, crenecrcihvictnisinmnmee 6, 13

Fourteenth Amendment................cccssecssseeeseeeeeeees 1, 6, 13, 24

GEORGIA CONSTITUTION

ce FB eb me SR a ne 10

OPINIONS BELOW

The decision of the Supreme Court of Georgia was

reported as follows:

CATHY COX, Secretary of State, Respondent-

Appellant, v. J. MAC BARBER, Petitioner-

Appellee, 568 S.E.2d 478; 2002 Ga. LEXIS 629; 2

Fulton County DR 2444 (2002).

The decision of the Georgia Supreme Court was issued

on August 14, 2002.

JURISDICTION

The judgment of the Supreme Court of Georgia was

entered on August 14, 2002. This Court has discretionary

jurisdiction over this cause by virtue of 28 U.S.C. § 1257.

| PRIMARY CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED IN THE CASE

The relevant constitutional provisions involved are:

AMENDMENT XIV, § 1

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States, nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.

STATEMENT OF THE CASE

Course of Proceedings

On June 21, 2002, J. Mac Barber submitted a Decla-

ration of Candidacy to qualify as a candidate of the De-

mocratic Party for the Public Service Commission

(hereinafter, PSC], District 4. Although candidates for the

District 4 post must reside within the district, they are

elected state-wide. Barber’s eligibility to stand for election

was challenged by Lauren “Bubba” MacDonald, the only

other candidate who had filed as a candidate in the De-

mocratic Primary for District 4. The primary was sched-

uled to occur on August 20, 2002. MacDonald charged that

Barber had not met the durational residency requirements

of Georgia law for candidates for the PSC. The State of

Georgia’s Office of State Administrative Hearings con-

ducted an evidentiary hearing upon the challenge. On July

30, 2002, the Administrative Law Judge issued an Initial

Decision in which he declared that Barber was disqualified

because “... he will not have lived in the current District

4 for one year at the time of the General Election in

November 2002.”

On July 31, 2002, the Secretary of State for the State

of Georgia, Cathy Cox, issued a decision by which she

adopted the conclusions of the Administrative Hearing

Officer, and ordered that Barber’s “ ... name shall be

stricken from the Primary Ballots for this race, and ...

any votes cast for Respondent [Barber] shall not be

counted and such vote shall be void and of no effect.” (App.

20).

On August 6, 2002, Barber appealed the decision of

the Secretary of State pursuant to Georgia law by filing a

Petition in the Superior Court of Fulton County, Georgia.

The Superior Court granted Barber’s Petition and declared

that the application of Georgia’s residency requirements to

Barber’s candidacy was unconstitutional as applied, being

in contravention of the Equal Protection Clause of the

United States Constitution. The court directed Cox to

ensure that Barber's name was on the primary ballots for

the District 4 seat on the PSC.

The Secretary of State immediately petitioned the

Georgia Supreme Court for discretionary appeal and for

expedited consideration. Following the grant of Cox's

petition for discretionary appeal, the Supreme Court of

Georgia issued a per curiam opinion on August 14, 2002,

by which it reversed the ruling of the Superior Court, and

ruled that the manner by which the one year residency

requirement impacted Barber did not deny him equal

protection under the United States Constitution or the

Georgia Constitution.

Factual Background

The PSC consists of five elected members. Prior to the

November, 2000 elections, members of the PSC were

qualified for election to the Commission regardless of the

location of their residency within the State. In 1998, the

General Assembly adopted legislation which for the first

time divided the state into five PSC districts, and required

that: “In order to be elected as a member of the commis-

sion from a Public Service District, a person must have

‘4

resided in that District for at least 12 months prior to

election thereto.” O.C.G.A. § 46-2-1(b). However, the

commissioners continue to be elected on a state-wide basis.

The first PSC election affected by the residency require-

ment was held in 2000, more than two years after the

districts were created.

The 1998 law also provided that the terms of the

commissioners from the respective districts would be

staggered: elections would be held for Districts 3 and 5 in

November 2000, for Districts 1 and 4, in November of

2002, and for District 2 in November of 2004.

In April of 2002, approximately eight months prior to

the November elections, the Georgia legislature reconfig-

ured the territory encompassed by the respective districts.’

Counties and parts of counties were shifted from one

district to another. Prior to April 11, 2002, District 4

included both Jackson County and Banks County. Barber

"The timing of the drawing of the PSC districts was, and is, a

completely arbitrary process. The “district” system of PSC election is of

recent statutory origin, and the districts themselves were only adopted

in 1998. The candidates for the PSC are elected by state-wide election.

Therefore, there was no Baker v. Carr, 369 U.S. 186, 208, 7 L.Ed.2d

663, 82 S.Ct. 691 (1962) “one person — one vote” compulsion which

prompted the redistricting process. The Georgia legislature is author-

ized to redraw the PSC district lines at any time, even with less than 12

months before the election. Thus the Georgia legislature could easily

redraw PSC districts in such a manner as to draw potential challengers

to sitting PSC members out of the districts from which such challengers

might seek to run. Similarly, the legislature could effectively disqualify

even sitting members of the PSC from their positions by drawing them

out of the district from which they were elected. O.C.G.A. § 46-2-1(b)

requires that Commissioners “ ... must continue to reside in that

district during the person’s term of office or that office shall thereupon

become vacant.”

was a resident of Jackson County from December 15, 2000

to January 15, 2002. Barber moved to Banks County on

January 15, 2002, intending to present his candidacy for

the District 4 PSC post. At the time that Barber moved

into Banks County, he had already met the twelve month

residency requirement of Georgia law to stand for election

to that post on November 5, 2001, and remained so eligible

at least until April 11, 2002.

On April 11, 2002, Jackson County — Barber’s former

county of residence — was removed from District 4. Banks

County — Barber’s current county of residence — remained

within District 4. There was no point in time between

November 5, 2001, and the present, during which Barber

was not a resident of PSC District 4. Despite the continuity

of his residency in District 4, he was declared ineligible by

Secretary of State Cox, and removed from the ballot by the

Georgia Supreme Court’s reversal of the decision of the

Fulton County Superior Court. As a result of the Court’s

decision, Barber cannot remain a resident of Banks

County should he wish to run for the PSC any earlier than

November of 2008. Indeed, he could not have run for any

PSC 4 post if he had remained in Jackson County.’ The

conclusion is inescapable that he has been penalized for

his intrastate move despite the continuity of his residency

within District 4.

In contrast to the law’s effect on Barber, a large

number of other citizens did not lose the opportunity to be

a candidate for the PSC by virtue of the redrawing of the

? No election for any PSC post will take place for potential candi-

dates from Jackson County in 2002.

district lines. Citizens of at least three counties — Cha-

tooga, Floyd and Gordon — were afforded two opportunities

within two years’ time to run for the PSC. Each of those

counties were formerly contained within District 5. As

residents of District 5, they had the opportunity to run for

the PSC in 2000. As a result of the redistricting accom-

plished by legislative act in April of 2002, residents of

_ those three counties were given yet another opportunity to

run for the PSC. The redrawing of District lines permitted

persons not previously eligible to run for a PSC post in

2002 the opportunity to do so yet disqualified other per-

sons, such as Barber, who had continuously resided in

District 4 throughout the entire twelve month period prior

to November 5, 2002.

The Georgia Supreme Court held that Barber was

disqualified through application of a “flexible standard”

rather than an approach which would compel the state to

demonstrate a compelling state interest in order to apply

the residency requirement to the candidacy in question.’

The Georgia Court declared that:

... there is no single standard to apply in evalu-

ating equal protection challenges to residency re-

quirements for candidates. Instead, the Supreme

Court has adopted a flexible standard depending

on the extent to which the challenged regulation

imposes a burden on First and Fourteenth

Amendment rights.

(App. 6).

* Barber presented an “as applied” equal protection challenge to the

application of Georgia’s one year residency requirement.

The court opined that the residency requirement did

not place “an unreasonable burden on the right of voters to

choose a candidate or the right of Barber to run for public

office,” (App. 8), and declared that the residency require-

ment only applied “to a limited number of potential candi-

dates: the persons who moved into the relevant district

since last November.” (App. 7). The court opined further

that Barber could simply “present himself to the voters as

a candidate for the PSC in the 2004 elections.”* (App. 7).

In so reasoning, the Court failed to consider the inherent

inequality and unfairness generated by the redistricting

process — a process which resulted in permitting persons

from a number of Georgia Counties who had only resided

in District 4 for less than a year (the county residents

moved into District 4) to become a PSC candidate, but

which prohibited Barber, a resident of well over eighteen

months to likewise become a candidate.’

By failing to require that the State of Georgia estab-

lish a compelling state interest in the particular applica-

tion of the residency requirement to Barber, the Supreme

Court committed error which can only be corrected by this

Court.

The realignment of the counties which comprised

District 4 did more than simply move one county [Jackson]

“It must be noted, however, that if redistricting occurs again,

Barber would be further disqualified.

* It is important to note that Barber was born in Banks County, his

current county of residence. In addition, Barber has previously served

as a member of the State’s Public Service Commission and as a member

of the State’s Legislature.

out of the District and retain another [Banks]. Ten coun-

ties previously contained within District 4 were removed

from its territorial description. All of the residents of those

ten counties were thereby precluded from becoming a

candidate for the PSC in calendar year 2002. Compare,

Headlee v. Franklin County Board of Elections, 368

F.Supp. 999 (D.C. Ohio 1973) (one year residency require-

ment for members of village legislative authority, as

applied, in view of recent annexations, would have pre-

cluded almost one half of village from seeking public office

until next election violating equal protection). Contrary to

the assertion of the Georgia Supreme Court, the limitation

resulting from the redrawing of the district lines did not

apply merely “to a limited number of potential candi-

dates.”

In declaring that Barber had the option of simply

offering himself as a candidate for the PSC again in 2004,

the Georgia Supreme Court completely disregarded the

fact that the next election for District 4 would not occur

until 2008. Members of the PSC serve six year terms. The

court’s decision not only punished Barber for his intra-

district move occurring in January of 2002 by removing

him from the ballot for 2002; it effectively conditioned his

standing for election upon his making another move in his

residence if he wished to stand as a candidate in 2004.

The court’s “flexible approach” allowed it to avoid the

fact that none of the State’s proffered justifications for

banning Barber’s candidacy were served by the one year

residency requirement. The Court reasoned that the

“representative form of government” was served by the

requirement, noting the following interests: 1) candidates

would be “familiar with the problems” of the persons

within the district; 2) voters would be exposed to the

character and views of the candidates; and, 3) elected

representatives would have “at least a minimum amount

of ties to the community.” (App. 6). The “flexible approach”

utilized by the Court became nothing more than the

traditional “rational basis” approach for evaluating legis-

lation in the face of non-suspect equal protection classifi-

cations or discrimination, and failed to genuinely consider

the fundamental right at stake.

The court approached these factors as if Barber would

be elected solely by the voters of District 4. Yet the PSC

election is conducted on a state-wide basis. Although

Barber would have been elected “from” District 4, he

would have been elected “by” the voters of the entire state.

The voters of the entire state share the same interest in

being exposed to the character and views of a PSC candi-

date from District 4 as do the actual residents of that

District. Similarly, a candidate elected on a state-wide

basis has as deep a need to be “familiar with the problems”

of the residents of the entire State of Georgia as the

probiems of residents of District 4.

Having been a resident of the actual District 4 con-

tinuously from December of 2000 through this day, Barber

has more than a “minimum amount of ties to the commu-

nity.” His “ties to the community” far outstripped the “ties”

to District 4 of the residents of the counties who were only

added to the District as of April of 2002. Residents of

Chatooga, Floyd and Gordon — suddenly made eligible to

run for the District 4 PSC post would not have had any

particular “familiarity” with District 4, nor would the

voters of District 4 have had any particular familiarity

with their character or views. Nevertheless, with less than

eight months’ residency in District 4, residents of these

three counties were fortuitously made eligible to stand as

a candidate for the post, while Barber was disqualified.

The error in the Court’s approach is further borne out

by the heavy reliance which it placed upon its own deci-

sional law construing the differently described residency

requirements for members of the Georgia General Assem-

bly. Candidates for those offices must “have been legal

residents of the territory embraced within the district from

which elected for at least one year,” (App. 3, 4), citing Ga.

Const. Art. III, § II, 9 III. Candidates for such offices are

elected on the basis of the votes of those electors who

reside in their respective districts. Thus the interests to

which the Court pointed as being served by imposition of

the one year residency requirement at least made more

sense for candidates for such offices than for the PSC post

sought by Petitioner. In Petitioner’s case, he would be a

candidate running for election on a state-wide basis. The

justification for his particularized tie to District 4 is

greatly diminished, and the residency requirement as

applied to him serves little, if any, of the interests cited by

the Court, and thus deprived him of the equal protection of

the laws.

The Georgia Constitution provides that candidates for

state assembly must have been residents “within the

territory embraced within the district for at least one

year,” (Georgia Constitution of 1983, Art. III, Sec. II, Para.

III(b)) whereas the PSC statute declares that a candidate

“must have resided in that district for at least 12 months

prior to election thereto.” O.C.G.A. § 46-2-1. The difference

between the language of the Constitution, and the statute

is of critical importance. Barber has had actual and

continuous residency “in that [the Fourth] District” for

over twelve months. The current district lines were only

drawn eight months prior to the election, guaranteeing

that any citizen who moved intra district after November

of 2001 would be disqualified from running for the PSC in

2002. Also, because the current district as reconfigured

with the elimination of some counties and the addition of

others has only existed since April 11, 2002, no one will

have resided in the current district for at least twelve

months prior to the November, 2002, election.

The legal test for determining the constitutionality of

the application of the 12 month residency requirement for

eligibility to run for the PSC is whether it serves a compel-

ling state interest. Illinois State Board of Elections v.

Socialist Workers Party, 440 U.S. 178, 184, 99 S.Ct. 983,

990 (1979) (“When such vital individual rights are at

stake, a State must establish that its classification is

necessary to serve a compelling interest.”); Chimento uv.

Stark, 353 F.Supp. 1211 (D.N.H. 1975) (three judge panel),

aff'd without op., 414 U.S. 802, 38 L.Ed.2d 39, 94 S.Ct. 125

(1973); Sununu v. Stark, 383 F.Supp. 1287 (D.N.H. 1974)

(three judge panel), aff’d without op., 420 U.S. 958, 43

L.Ed.2d 435, 95 S.Ct. 1346, (1975); Robertson v. Bartels,

150 FSupp.2d 691 (D.C.N.J. 2001), aff’d without op., 122

S.Ct. 914, 151 L.Ed.2d 881 (2002). Proper application of

the “compelling state interest” test to the circumstances of

Barber’s candidacy should have resulted in finding that

the residency requirement, as interpreted by Secretary of

State Cox, not only resulted in a denial of Barber’s right to

stand for office, but was unconstitutional as applied to

him.

When a residency requirement is coupled with an

alteration of political boundaries so that, as here, a candi-

date who resides in a district — and has resided in that

district continuously prior to realignment — is denied

access to a ballot merely because his place of former

residence had been removed from the district, there can be

no justification for such denial that is consistent with the

Fourteenth Amendment, and such application of residence

requirements should be held unconstitutional as applied.

REASONS FOR GRANTING THE WRIT

A. The Writ should be granted because a decision

by this Court is needed to resolve apparent in-

consistencies in decisions of the Federal Courts

and Courts of the States regarding whether the

imposition of residency requirements upon can-

didates may only be justified by a showing of

compelling state interest.

State and federal courts require guidance with respect

to whether a compelling state interest must be shown in

order to impose and enforce residency requirements upon

candidates for office. The Supreme Court has not yet

addressed the question of the appropriate standard of

review for cases involving durational residency require-

ments for candidates. As pointed out by the Court in

Joseph v. Birmingham, 510 F.Supp. 1319 (E.D. Mich.

1981):

The substantial majority of these courts [consid-

ering the constitutionality of residency require-

ments for candidates], and apparently all the

courts in this Circuit which have faced the ques-

tion, have held that strict scrutiny must be ap-

plied to durational residency requirements for

candidates. Id. (collecting cases). Howlett v. Sal-

ish and Kootenai Tribes, 529 F.2d 233, 242-243

(9th Cir. 1976); Alexander v. Kammer, 363

F.Supp. 324, 326 (E.D. Mich. 1973).

Other courts do not apply strict scrutiny to candidate

durational residency requirements. See, for example,

Russell v. Hathaway, 423 F.Supp. 833 (N.D. Texas 1976)

(three judge court) and Daves v. City of Longwood, 423

F.Supp. 503 (M.D.Fla. 1976) (both holding that the mere

rationality test is appropriate in these circumstances).

Compare, Corrigan v. City of Newaygo, 55 F.3d 1211 (6th

Cir. 1995) (ordinance disqualifying candidates for failure

to pay local taxes is not completely arbitrary under ra-

tional basis review). Reflecting the disparity of judicial

interpretations in this field of law are the decisions of

other courts considering challenges to the disenfranchise-

ment of voters by virtue of the combined effect of redis-

tricting and staggered terms. Some courts have held that

they are to utilize a “rational basis” standard of review

under these circumstances. See, Donatelli v. Mitchell, 2

F.3d 508, 514 (3rd Cir. 1993) (state actions surrounding

reapportionment and redistricting for offices with stag-

gered terms subject only to rational-basis review because

they did not involve a suspect classification or burden a

fundamental constitutional right) (cites omitted).

The Supreme Court of Georgia declared that the

constitutionality of residency requirements for candidates

was to be evaluated using a “flexible standard depending

on the extent to which the challenged regulation imposes a

burden on First and Fourteenth Amendment rights.” P. 7,

Slip op. The Court utilized this “flexible standard” despite

the fact that application of the residency requirements

precluded Barber from qualifying as a candidate for

District 4 for another six years, and left only one lone

candidate [the original complaining party, Lauren Mac-

Donald] from which voters could select the Democratic

party nominee for the District 4 PSC post.

The Georgia Court’s “flexible standard” approach is in

stark contrast with the analytical approach employed by

other Federal and State Supreme Courts, including

decisions of those Courts which have been affirmed by this

Court. Chimento v. Stark, 353 F.Supp. 1211 (D.N.H. 1975)

(three judge panel), aff'd without op., 414 U.S. 802, 38

L.Ed.2d 39, 94 S.Ct. 125 (1973) (compelling interest test);

Sununu v. Stark, 383 F.Supp. 1287 (D.N.H. 1974) (three

judge panel), aff’d without op., 420 U.S. 958, 43 L.Ed.2d

435, 95 S.Ct. 1346, (1975) (compelling state interest);

Robertson v. Bartels, 150 F.Supp.2d 691 (D.C.N.J. 2001),

aff’d without op., 122 S.Ct. 914, 151 L.Ed.2d 881 (2002)

(strict scrutiny analysis).

In Chimento v. Stark, 353 F.Supp. 1211 (D.N.H. 1975)

(three judge panel), aff'd without op., 414 U.S. 802, 38

L.Ed.2d 39, 94 S.Ct. 125 (1973), the Court reasoned that:

... the question [of the standard to utilize in ad-

judicating challenges to candidate residency re-

quirements — ed.] is resolved judicially by

determining what is more important to our form

of government; the rights protected by the state

law in question or the rights infringed by it.

Where, as here, the law in question poses a

barrier to a candidacy of a not insubstantial

segment of the community and, to that degree,

limits the voters in their choice of candidates, we

hold that the stricter standard of review should

be applied.

* * *

For cases that dealt with the issue of durational

residency requirements for public office and ap-

plied the “compelling interest” test, see Stapleton

v. Clerk for City of Inkster, 311 F.Supp. 1187

oo REN NES

(E.D. Mich. 1970); Hadnott v. Amos, 320 F.Supp.

107 (M.D. Ala. 1970), aff’d without opinion, 401

U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971);

Bolanowski v. Raich, 330 F.Supp. 724 (E.D. Mich.

1971); Green v. McKeon, 335 F.Supp. 630 (E.D.

Mich. 1971); Mogk v. City of Detroit, 335 F.Supp.

698 (E.D. Mich. 1971); McKinney v. Kaminsky,

340 F.Supp. 289 (M.D. Ala. 1972); Wellford v.

Battaglia, 343 F.Supp. 143 (D. Del. 1972); Draper

v. Phelps, 351 F.Supp. 677 (W.D. Okl. 1972); and

Zeilenga v. Nelson, 4 Cal.3d 716, 94 Cal. Rptr.

602, 484 P.2d 578 (1971). Contra see Gangemi v.

Rosengard, 44 N.J. 166, 207 A.2d 665 (1965);

Hayes v. Gill, 52 Haw. 251, 473 P.2d 872 (Hawaii

1970); DeHond v. Nyquist, 65 Misc.2d 526, 318

N.Y.S.2d 650 (S.Ct. Albany Cty. 1971); and State

ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo.

1972).

The Supreme Court of Georgia failed to apply the

compelling state interest test despite the presence of facts

which should have triggered a Chimento analysis: the

timing of the reconfiguration of the PSC districts, by

which persons who resided in the Counties removed from

District 4 were summarily precluded from the opportunity

to stand as candidates for the PSC office, resulted in a

“ .. barrier to a candidacy of a not insubstantial segment

of the community ... ” and operated to exclude Barber

from the ballot, thus “ ... limit[ing] the voters in their

choice of candidates.”

The Court’s failure to apply the compelling state

interest test placed the result of its decision squarely at

odds with decisions of other Courts. In Wenke v. Hitchock,

6 Cal.3d 746, 100 Cal. Rptr. 290, 493 P.2d 1154 (1972), the

California Supreme Court decided a durational residency

limitation issue substantially the same as presented to the

Georgia Supreme Court. Citizens of Orange County,

California, seeking to become candidates for the County

Board of Supervisors were required to have been a resi-

dent of the district from which they would be elected for

one year before the election. Members of the Board of

Supervisors served staggered terms of office. Wenke had

been a resident of the First District for over eighteen

years. At a time less than one year prior to the next

scheduled election, Wenke learned that the location of his

residence in the First District was to be included in a

different District, the Fourth District, for which (owing to

the staggered terms of Commission members) there would

be no election in 1972. Intending to retain his opportunity

to become a candidate for the Board of Supervisors from

the First District, (for which the election was scheduled for

1972) he moved to a new location which remained within

the First District after redistricting. Wenke’s candidacy for

the First District post was rejected by the registrar of

voters, and sustained by the initial trial court, on the

theory that a candidate could not move and preserve his

continuity of residence in the district.

Acknowledging that United States Supreme Court

decisional law required that there be a “compelling inter-

est” demonstrated by the state in order to rigidly enforce

the one year residency requirement under the circum-

stances as shown, the California Supreme Court reversed

the trial court and held that, in the immediate wake of a

redistricting process, a person could effectively “bridge” his

district residency with that in the newly configured

district to satisfy the one year residency requirement. The

Court reasoned that:

We think that the purpose of the residency re-

: quirement would be promoted by permitting a

candidate who, prior to his removal therefrom by

a redistricting enactment, has resided in a given

district for the necessary period of time to run for -

/ office in his former district providing he relocates

his residence within its boundaries. Every voter

in the district as “it was constituted before the

redistricting resided within the same boundaries

as he did. He will undoubtedly be familiar with

their problems and needs — certainly as much as

the candidate who by fortuity remains in the dis-

trict unaffected by the change in boundaries. We

think it makes good sense to permit him to relo-

cate there and to run for office and that indeed it

may thwart the democratic process to insist that

he may only run in his new district which may

contain relatively few of his former fellow First

District residents.

Id., at 754, 755. On the basis of that reasoning, the Court

held as follows:

We hold, therefore, that a person desiring to

become a candidate for the office of member of

the board of supervisors who has been an elector

within a given supervisorial district but will be

made a nonresident thereof by redistricting may

choose one of two alternatives. He may choose to

apply his previous period of residence to his new

supervisorial district or to his former supervi-

sorial district to the end of becoming a candidate

for such office either in his new district or in his

former district. In the event he chooses to be a oan

candidate for the office of supervisor of his for-

mer district from which his place of residence

will be excluded by such redistricting, in order to

preserve his period of residency, he must, prior to

SS ee nee

——————————————————— —————

the effective date of the boundary change, relo-

cate his residence in his former district by mov-

ing it to a location therein which has not been

removed therefrom by the redistricting.

Id., at 755.

The Georgia Supreme Court’s decision is also at odds

with the holding of the Court in Robertson v. Bartels, 150

F.Supp.2d 691 (D.C.N.J. 2001), aff’d without op., 122 S.Ct.

914, 151 L.Ed.2d 881 (2002) in which the Court applied a

“compelling state interest” test to the state’s residency

requirements for State Assembly. In Robertson, the Plain-

tiffs were initially declared ineligible to become candidates

because of a redrawing of the district lines by the State

Legislature. The Court declared that:

The fundamental right at issue is the combined

right of persons to run for public office and the

right of voters to vote for candidates of their

choice. Impairment of that combined right ... is

subject to strict scrutiny and can only be im-

paired if the impairment furthers significant

State interests.

The Court held that the residency requirement for State

Senate and State Assembly “does not survive a strict

scrutiny analysis.” Id., at 698. Accord, Callaway v. Sam-

son, 193 F.Supp.2d 783 (D.N.J. 2002) (invalidating dur-

ational residency requirement of one year for election to

local office in as-applied equal protection challenge).

The lack of an overarching standard from this Court

for judicial review of durational residency requirements

has resulted in inconsistent results from the Courts of the

United States to challenges to the one year durational

residency requirement such as that at issue here. Some

federal courts have found this length of residency to

constitute a violation of equal protection. See, Robertson v.

Bartels, 150 F.Supp.2d 691 (D.N.J. 2001) (state’s one year

residency requirement fails to meet compelling state

interest and therefore was a violation of equal protection.);

Headlee v. Franklin County Board of Elections, 368

F.Supp. 999 (D.C. Ohio 1973) (Ohio statute requiring each

member of the legislative authority of a village shall have

resided in the village for one year next preceding his

election held to violate equal protection clause of Four-

teenth Amendment.) Other courts have concluded that the

one year residential requirement is not a violation of equal

protection. See, Walker v. Yucht, 352 F.Supp. 85 (D.Del.

1972) (court upholds under reasonable basis test the

validity of the requirements of one year in the district to

be represented for election to the Delaware general as-

sembly.); Russell v. Hathaway, 423 F.Supp. 833 (1976, D.C.

Tex.) (requirement that candidate for public office be state

resident for one year not violation of equal protection.);

Gilbert v. State, 526 P.2d 1131 (Alaska 1974) (candidates

seeking state legislative office must have one year resi-

dency in district from which elected.); Brewster v. Johnson,

260 Ark. 450, 541 S.W.2d 306 (Ark. 1976) (requirement

that candidates for office of senator or representative have

been resident of county or district for one year valid under

either reasonable basis or compelling state interest tests. );

Gralike v. Walsh, 483 S.W.2d 70 (Mo. 1972) (one year

residency requirement for office of state senator not

violation of equal protection); White v. Manchin, 173 WVa.

526, 318 S.E.2d 470 (W.Va. 1984) (one year durational

residency requirement for office of state senator did not

deny equal protection.)

Guidance by this Court is necessary to provide uni-

formity across the courts of the United States in dealing

with the proper application of the “compelling state

interest” standard to durational residency requirements

for elected office. A rule must be fashioned that permits

“continuity of residency” eligibility where a candidate has

remained continuously within the district from which he

or she seeks office even if his or her former residence has

been removed from the district through a process of

redistricting. One’s right to run for office must not turn on

the vagaries of redistricting, nor should the exercise of this

fundamental right turn upon the particular state in which

a citizen resides.

B. The Writ should be granted because the fre-

quency with which citizens of the United States

change their residency presents an urgent need

for clarification of the standards of law by this

Court to ensure that citizens can continue to ex-

ercise their fundamental right to stand for elec-

tive office, particularly in years surrounding the

decennial redrawing of district lines.

There exists “a federal constitutional right to be

considered for public service without the burden of invidi-

ously discriminatory disqualifications,” and a state “may

not deny to some the privilege of holding public office that

it extends to others on the basis of distinctions that vio-

lated federal constitutional guarantees.” Turner v. Fouche,

396 U.S. 346, 362-363, 24 L.Ed.2d 267, 90 S.Ct. 532

(1970). In the setting of voter durational residency re-

quirements, this Court has observed that: “Durational

residence laws penalize those persons who have traveled

from one place to another to establish a new residence

inane

during the qualifying period.” Dunn v. Blumstein, 405 U.S.

330, 334, 335, 31 L.Ed.2d 274, 92 S.Ct. 995 (1972) (foot-

note omitted).

The number of citizens whose right to run for elected

office is foreclosed by application of durational residency

requirements is very substantial. According to a report of

the U.S. Department of Commerce, Economics and Statis-

tics Administration, U.S. Census Bureau issued in May of

2001,

Between March 1999 and March 2000, 43.4 mil-

lion Americans moved. Over half (56 percent) of

these moves were loca] (within the same county),

20 percent were between counties in the same

state, and 19 percent were moves to a different

state. Only 4 percent of movers came from

abroad.

Source: “Current Population Reports,” by Jason Schachter,

U.S. Census Bureau. (App. 25-36). On the basis of these

figures, we can conclude that in the year prior to March of

2000, nearly 17 million people moved from one county to

another [either intrastate or interstate], with the effect

that all of the adult citizens within that group might be

precluded from running for any number of elected offices

where a state mandates 4 one year residency requirement

for candidacy and where their county may have been

shifted from one district to another. The 17 million persons

affected by the one year residency requirement marks an

increase from a comparable period evaluated by the

Census Bureau for the year March 1995 to March 1996. In

that year, approximately 14.5 million persons moved from

one county to another and from one state to another in

that period of time. Source: “Current Population Reports,”

Geographical Mobility: March 1995 to March 1996, By

Kristin A. Hansen, Census Bureau. (App. 37-49).

Another component of the 2001 report is very impor-

tant. The report also found that the economic and housing

status of citizens played an important role in residential

mobility. “early 33 percent of renters compared with 9

percent of homeowners moved during the one-year period

surveyed. Members of households receiving less than-

$25,000 annual income were nearly twice as likely to have

moved within a one year time frame as households receiv-

ing an annual income of $100,000 or more. (Households

where income was less than $25,000 moved within the one

year period at a rate of 21.1 percent; Households where

the income was greater than $100,000 moved within the

one year period at a rate of 12.1 percent. (App. 29).

The results of the survey demonstrate that one year

residency requirements for candidates carry with them the

prospect of impacting a significant proportion of potential

candidates, and of having a disparate impact upon citizens

on the basis of income. This Court’s concern regarding

limitations to candidacy on the basis of income was a

fundamental part of the decision in Bullock v. Carter, 405

U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). In Bullock,

the Court considered the constitutionality of state statutes

requiring the payment of a filing fee before a candidate

could have his name placed on the ballot in a primary

election. The Court observed that:

The effect of this exclusionary mechanism on

voters is neither incidental nor remote. Not only

are voters substantially limited in their choice of

candidates, but also there is the obvious likeli-

hood that this limitation would fall more heavily

on the less affluent segment of the community,

whose favorites may be unable to pay the large

costs required by the Texas system.... Because

the Texas filing-fee scheme has a real and appre-

ciable impact on the exercise of the franchise,

and because this impact is related to the re-

sources of the voters supporting a particular

candidate, we conclude, as in Harper, that the

laws must be “closely scrutinized” and found rea-

sonably necessary to the accomplishment of le-

gitimate state objectives in order to pass

constitutional muster.

Id., at 144.

The potential adverse impact upon prospective candi-

dates based on their income status cannot be avoided. It

underscores the need for this Court to require close scru-

tiny of residency requirements in order for them to pass

constitutional muster. Such adverse impact is compounded

in the years immediately following the decennial census,

and the redrawing of district lines for all manner of state

and local offices. The adverse impact is even greater in

those jurisdictions and for those elective bodies where

candidates seek elective office for positions which carry

staggered terms of office — such as Petitioner Barber or the

plaintiff in Wenke v. Hitchock, supra. — where relocation of

a candidate’s former residency into a new district can

deprive such prospective candidate of the right to run for

office for years.

The impact upon the increasingly mobile citizens of

our country of state laws imposing residency requirements

calls upon this Court to provide a consistent framework for

the evaluation of such laws.

CONCLUSION

This case involves rulings of law by the Georgia

Supreme Court that obviously would have been made

differently had the case been heard in different state

supreme courts, or possibly different federal district courts

or circuits. It is in the best interest of furthering the

development of the law in the area involving the intersec-

tion of the Fourteenth Amendment and state or local

candidate residency laws that specific guidance and

direction be given by this Court. Failure to accept this

case, and correctly and finally settle the issues presented

in this case could result in countless and ever increasing

numbers of citizens being denied their fundamental right

to run for office, and result in a continued plethora of

inconsistent judicial rulings.

Petitioner Mac Barber hereby respectfully moves this

Court to grant this Petition for Writ of Certiorari in order

that substantial justice in an area of tremendous national

importance be done.

Respectfully submitted,

GEORGE BRIAN SPEARS

1126 Ponce de Leon Ave. Counsel of Record

Atlanta, Georgia 30306 Attorney for J. Mac Barber

404-872-7086 Georgia Bar No. 670112

CHILIVIS, COCHRAN, LARKINS

& BEVER, LLP

3127 Maple Drive, N.E. NICKOLAS P. CHILIVIS

Atlanta, Georgia 30305 Attorney for J. Mac Barber

404-233-4171 Georgia Bar No. 124800

—————

Seow abon tence

ES APE AANA ne Oni oc chek Rb Gi RV bine ~o

App. 1

In the Supreme Court of Georgia

Decided: AUG 14 2002

S02A1818. COX v. BARBER.

PER CURIAM.

In this election contest, the trial court ordered Secre-

tary of State Cathy Cox to place candidate J. Mac Barber’s

name on the primary ballot for the district four seat on the

Georgia, Public Service Commission. We granted the

Secretary of State’s application for discretionary appeal to

consider whether the trial court correctly held that the

one-year residency requirement in OCGA § 46-2-1(b) is

unconstitutional as applied to Barber. Because the statu-

tory requirement is constitutional and Barber has not

resided in district four for twelve months prior to the

election, we hold that the Secretary of State properly

concluded that he was disqualified from being a candidate

for that PSC seat. Therefore, we reverse the trial court.

The Georgia Public Service Commission is a five-

member body created under the Constitution of the State

of Georgia.‘ OCGA § 46-2-1(a) provides that commissioners

are elected statewide for six-year terms. In 1998, the

Georgia General Assembly amended OCGA § 46-2-1 to

establish that new members elected to the commission

must reside within specific districts. Subsection (b) now

provides: “In order to be elected as a member of the com-

mission from a Public Service Commission District, a

' Ga. Const. of 1983, art. IV, § I, para. I(a).

App. 2

person must have resided in that district for at least 12

months prior to election thereto.”

The legislature made this residency requirement

effective for elections for districts three and five in 2000,

districts one and four in 2002, and district two in 2004.°

Following the 2000 decennial census, the Georgia General

Assembly amended the statute to change the boundaries

of the PSC districts, effective April 2002.* As part of the

reapportionment process, the legislature moved Jackson

County from district four to district two.

In 1999 Barber moved to DeKalb County to run for

the district three seat on the PSC. After his defeat, he

returned to Jackson County where he was residing in

November 2001. The trial court found that Barber became

a legal resident of Banks County on January 15, 2002.

In June 2002, Barber qualified to run for the district

four seat on the PSC. His opponent challenged his eligibil-

ity on the grounds that Barber did not reside in district

four and had not resided within the district for the re-

quired twelve months. After a hearing, an administrative

law judge concluded that Barber did not meet the one-year

residency requirement in OCGA § 46-2-1(b). The Secretary

of State adopted the ALJ’s initial decision as the final

agency decision and disqualified Barber as a candidate for

the PSC seat in district four.

? OCGA § 46-2-1(b) (Supp.2001).

* See OCGA § 46-2-1(d) (Supp.2001).

* 2002 Ga. Laws 360.

]

icine

App. 3

Barber filed a petition for judicial review in superior

court. The trial court concluded that OCGA 46-2-1(b) was

unconstitutional as applied to Barber because it disquali-

fied him from seeking the PSC seat on the grounds that he

would not reside within the district for one year prior to

the general election in November 2002. The trial court

ordered the Secretary of State to place Barber’s name on

the ballots for the August 20 primary election. Because the

primary will be held next week, we agreed to give expe-

dited review of this appeal.

1. In construing statutes, courts shall look diligently

for the intention of the General Assembly.’ The words of a

statute should be given a reasonable and sensible inter-

pretation to carry out the legislative intent and render the

statute valid.®

Applying these rules, we interpret the residency

provision in OCGA § 46-2-1 as requiring a candidate for

the PSC to be a resident of the territory within the district

for 12 months prior to the general election. This interpre-

tation is consistent with similar residency requirements in

the Georgia Constitution for other state and county

offices.’ The 1983 Georgia Constitution requires members

of the Georgia General Assembly to “have been legal

residents of the territory embraced within the district from

* OCGA § 1-3-1(1) & (2).

* See Mayor of Hapeville v. Anderson, 246 Ga. 786, 787, (272 SE2d

713) (1980).

” See, e.g., Griggers v. Moye, 246 Ga. 578, (272 SE2d 362) (1980)

(upholding constitutional and statutory provisions requiring county

officers to be a citizen of the county for at least two years immediately

preceding the election or appointment).

App. 4

_which elected for at least one year.” As the State Attorney

General noted in interpreting the comparable provision in

the 1976 Constitution, our Constitution does not create

any exception to the one-year residency requirement due

to reapportionment of the district.’

In this case, Barber admits that he was a resident of

Jackson County, which is now in district two, in November

2001 and did not attempt to become a resident of Banks

County in district four until January 2002. Because

Barber was not a resident of the geographic ter ~itory in

district four during the twelve months prior to the Novem-

ber 2002 general election, he is not eligible to run for the

PSC seat in that district in this year’s election.

2. In invalidating the residency requirement, the

trial court concluded that OCGA § 46-2-1 violated equal

protection by disqualifying Barber because he “will not

have resided within District 4 as it has been reconfigured

since reapportionment (April 11, 2002) for one year prior

to the November 5, 2002, General Election.” Barber

contends that the trial court was correct because district

four did not exist for the minimum twelve months speci-

fied by the residency requirements of OCGA § 46-2-1(b).

The United States Supreme Court has never consid-

ered directly the validity of durational residency require-

ments for candidates for public office. In considering the

filing-fee requirement for candidates, the Court stated:

“The right of a party or an individual to a place on a ballot

* See Ga. Const. art. III, § II, para. III.

* See 1981 Op. Att’y Gen. 306 (U81-28).

eee

App. 5

is entitled to protection and is intertwined with the rights

of voters.” Moreover, the Court noted that in evaluating

candidate restrictions “it is essential to examine in a

realistic light the extent and nature of their impact on

voters.”

Lower court opinions are inconsistent on the validity

of requirements that a candidate must reside within a

district for a specific time.” The Supreme Court has

summarily affirmed decisions of three-judge panels up-

holding the seven-year residency requirement in the New

Hampshire Constitution for candidates for governor and

state senator. Other decisions have struck down much

shorter residency requirements imposed on candidates,

including a recent federal district court decision that

invalidated New Jersey's one-year residency requirement

for candidates for the state senate and general assembly.“

See Lubin v. Panish, 415 U.S. 709, 716 (94 SC 1315, 39 LE2d

702) (1974).

" See Bullock v. Carter, 405 U.S. 134, 143 (92 SC 849, 31 LE2d 92)

(1971).

“ See generally John D. Perovich, Annotation, Validity of Re-

quirement that Candidate or Public Officer Have Been Resident of

Governmental Unit for Specified Period, 65 ALR3d 1048 (1975).

* See Sununu v. Stark, 420 U.S. 958 (95 SC 1346, 43 LE2d 435)

(1975), aff’g, 383 F. Supp. 1287 (D.N.H. 1974) (three-judge panel);

Chimento v. Stark, 414 U.S. 802 (94 SC 125, 38 LE2d 39) ( 1973), aff’g,

353 F. Supp. 1211 (D.N.H. 1973) (three-judge panel).

“ See Robertson v. Bartels, 150 F. Supp. 2d 691 (D.NJ. 2001); see

also McKinney v. Kaminsky, 340 F. Supp. 289 (M.D. Ala. 1972) (invali-

dating five-year residency requirement for county commissioner).

App. 6

In addition, there is no single standard to apply in

evaluating equal protection challenges to residency re-

quirements for candidates.” Instead, the Supreme Court

has adopted a flexible standard depending on the extent to

which the challenged regulation imposes a burden on First

and Fourteenth Amendment rights.” “[WJhen a state

election law provision imposes only ‘reasonable, nondis-

criminatory restrictions’ upon the First and Fourteenth

Amendment rights of voters, ‘the State’s important regula-

tory interests are generally sufficient to justify the restric-

tions.””

Residency requirements for candidates serve the

important state interest of supporting our representative

form of government. Requiring candidates to live in a

district for a reasonable period of time before the election

encourages them to become familiar with the problems,

needs, and concerns of the people they seek to represent; it

also exposes voters to the character, experience, and views

of the individuals who seek to represent them. In addition,

it ensures voters that their elected representatives will

have at least a minimum amount of ties to the community.

Arrayed against the state’s legitimate interest in having

informed voters and candidates is the individual voter’s

* See Woodward v. City of Deerfield Beach, 538 F.2d 1081, 1082 n.1

(1976) (discussing different standards of review that the United States

Supreme Court has applied to equal protection cases involving candi-

dates).

* See Burdick v. Takushi, 504 U.S. 428, 434 (112 SC 2059, 119

LE2d 245) (1992).

" See id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (103

SC 1564, 75 LE2d 547) (1983)).

App. 7

interest in having a choice at the ballot and the candi-

date’s interest in the continued availability of political

opportunity.“

Our state’s residency requirement for the state Public

Service Commission is of relatively short duration and

applies to a limited number of potential candidates: the

persons who moved into the relevant district since last

November. Under our interpretation of the PSC statute, it

does not disqualify long-time residents of counties that

were placed in district four during the reapportionment

process. Thus, unlike the case cited by Barber in which

almost one half the residents were disqualified from

running for village elections due to the village’s residency

requirement,” this case does not involve a substantial

number of residents excluded from seeking office or place a

severe limitation on the voters’ right to choose among

candidates running for the PSC. Moreover, Barber has not

been deprived of the opportunity to qualify and run for a

seat on the PSC; voters in district three had the opportu-

nity to vote for him in the 2000 elections, and he can again

present himself to the voters as a candidate for the PSC in

the 2004 elections. It is only because of the staggered

terms for the five seats on the PSC that he was not able to

run from his residence in Jackson County in this year’s

elections. Finally, there is no evidence in the record that

"* See Lubin, 415 U.S. at 715 (state’s legitimate interest in keeping

ballots within manageable limits may not unnecessarily burden an

individual candidate’s equally important interest in the continued

availability of political opportunity and the voters’ interest in asserting

their preferences).

° See Headlee v. Franklin County Board of Elections, 368 F. Supp.

999 (S.D. Ohio 1973) (three-judge panel).

App. 8

the district lines were redrawn to exclude Barber specifi-

cally from being a candidate.”

For these reasons, we conclude that the residency

requirement for the PSC is rationally related to the state’s

legitimate interests in fostering informed voters and

promoting knowledgeable and responsive candidates with

ties to the community. The requirement does not place an

unreasonable burden on the right of voters to choose a

candidate or the right of Barber to run for public office.

Therefore, we hold that requiring Barber to reside in

district four for twelve months prior to the general election

in November has not denied him equal protection under

the United States Constitution or the Georgia Constitu-

tion.

Judgment reversed. All the Justices concur.

* Cf. La Porte County Republican Cent. Comm. v. Board of

Comm'rs, 43 F.3d 1126 (7th Cir. 1994) (reversing dismissal of complaint

based on claim that residential districts were redrawn for the sole

purpose of preventing three individuals from standing for election).

5 ee

App. 9

BEFORE THE OFFICE OF

STATE ADMINISTRATIVE HEARINGS

| State of Georgia

Lauren “Bubba” *

McDonald *

Petitioner * Docket No. OSAH-ELE-CE

V * 0300328-78-WJB

s *

J. Mac Barber, , (Filed Jul. 30, 2002)

Respondent. *

INITIAL DECISION

I. INTRODUCTION

This matter comes before the Tribunal pursuant to a

complaint filed by Lauren “Bubba” McDonald (“Peti-

tioner”) with the Secretary of State (“the Secretary”) under

the provisions of O.C.G.A. § 21-2-5(b) challenging the

eligibility of J. Mac Barber (“Respondent”) to be a candi-

date for the District 4 seat on the Georgia Public Service

Commission (“PSC”). In sum, Petitioner alleges Respon-

dent is not eligible to be a candidate because he does not

presently reside in District 4 as it is presently configured,

and even if he presently does reside within the district as

he alleges, he has not resided within the district for the

required one year prior to the General Election in Novem-

ber 2002.

A hearing was held on this matter on July 19, 2002. The

Petitioner was represented by Mr. Charles S. Baker. The

Respondent was represented by Mr. Harold S. Gulliver

and Mr. Nicholas Chilivis.

App. 10

II. FINDINGS OF FACT

This Tribunal has considered the entire evidence in this

case, and based upon a preponderance of the credible

evidence, makes the following specific findings of fact.

On June 21, 2000, Respondent submitted a Declaration of

Candidacy and Affidavit (“Affidavit”) in an attempt to

qualify as a Democratic candidate for the PSC, District 4.

(Stipulations of Parties).

On May 11, 2002, Petitioner, an elector qualified to vote

for the candidate, filed a timely complaint pursuant to

O.C.G.A. § 21-2-5(b) with the Secretary seeking to disqual-

ify Respondent on the grounds that he does not meet

residency requirements for that office. (Stipulations of

Parties).

The Georgia Legislature created the current PSC districts

on April 11, 2002. Under the present configurations of the

districts, Jackson County is in District 2 and Banks

County is in District 4. Prior to the April 11, 2002, reap-

portionment of the PSC districts, Banks County and

Jackson County were both in District 4. A house owned by

the Respondent is located at 325 Shankle Heights, Com-

merce, Georgia which is in Jackson County, Georgia. A

mobile home, which the Respondent currently claims is his

domicile, is located at 181 Trout Lane, Commerce, Georgia

cial

App. 11

which is in Banks County, Georgia. (Stipulation of the

Parties).

The Respondent admits that he changed his domicile to

Banks County, a county within the present boundaries of

District 4 of the PSC as reapportioned in April of 2002, no

earlier than January 15, 2002. This is the date when he

states that he changed his domicile from Jackson County,

which had previously served as his domicile since Decem-

ber 15, 2000. (Testimony of Respondent, T. 131, 137).

Since January 15, 2002, the Respondent has had exclusive

use of a bedroom and bathroom in the mobile home located

at 181 Trout Lane, Commerce, Banks County, Georgia.

The owners of the mobile home, Jeffrey Hixinbaugh and

his wife Debra Standridge, also live there. (Testimony of

Respondent, T. 138, 142; Testimony of Debra Stan-

dridge, T.196).

The Respondent has a key to the mobile home at 181

Trout Lane. He keeps his clothes in the bedroom reserved

for his use. He spends the night there on a sporadic basis.

(Testimony of Respondent, T.168, 183; Testimony of

Standridge).

App. 12

The Respondent maintains a residential telephone in his

name at 325 Shankle Heights, and this account has been

open since 1999. (Testimony of Joseph Nesber, T. 57-

60, Exhibit P-6).

The Respondent does not maintain telephone services at

the 181 Trout Lane address. He also does not pay utilities

bills at this address. Most of his mail comes to a post office

box in Commerce; however, recently, he has received some

mail at the 181 Trout Lane Address. (Testimony of

Respondent, T. 165, 177).

Presently, the Respondent spends several nights a week at

the home of a friend, Todd Mize, located in Jackson

County at 355 Shankle Heights, Commerce, Georgia;

however, he does not have a key to this residence, and he

does not keep his clothes there. (Testimony of Todd

Mize, T.90, 96).

10.

On May 1, 2000, the Respondent obtained a driver’s

license with a DeKalb County address (Exhibit P-1). On

June 19, 2001, he obtained a driver’s license using the 325

Shankle Heights address. (Exhibit P-2). On April 25,

2002, the Respondent obtained another driver’s license

using the 181 Trout Lane address. (Exhibit P-3).

App. 13

11.

On May 4, 2001, the Respondent-changed his voter regis-

tration from DeKalb County to Jackson County using the

325 Shankle Heights address. (Exhibit R-8). On April 25,

2002, the Respondent registered to vote in Banks County

using the 181 Trout Lane address. (Exhibit R-1).

12.

On July 6, 2001, the Respondent applied for tag and title

for a Ford Taurus in Jackson County using the 325

Shankle Heights address. (Exhibit R-4). On July 2, 2002,

the Respondent transferred his car registration from

Jackson County to Banks County using the 181 Trout

Lane address for the same Ford Taurus. (Exhibit P-1, R-

5).

III. CONCLUSIONS OF LAW

O.C.G.A. § 46-2-1 sets out how PSC Commissioners are to

be elected. Prior to the 1998 amendments, the Commis-

sioners were elected statewide and did not run from

particular districts; thus, there were no residency re-

quirements for candidates for these positions, except that

they be residents of the State of Georgia. The 1998

amendments required that the Commissioners reside in

five (5) distinct districts while still requiring the Commis-

sioners to be elected in a statewide election. Furthermore

after the 1998 amendments, O.C.G.A. § 46-2-1(b) imposed

a durational residency requirement by stating that “[I]n

order to be elected as a member ‘of the Public Service

App. 14

Commission, a person must have resided in that district

for at least 12 months prior to election thereto.”

In his testimony, the Respondent admitted that until

January 15, 2002, he had never established residency at

an address within District 4 as it has been configured

since reapportionment. Thus, clearly the Respondent does

not meet the one year residency requirements contained in

O.C.G.A. § 46-2-1(b) for a candidate for District 4 of the

PSC unless somehow he can be given “credit” for the time

he resided in Jackson County before he changed his

residency to Banks County. The Respondent has argued

that he should be given such credit because he was resid-

ing in Jackson County before that county was moved out of

District 4 during the April 2002 reapportionment.

The key legal question in this case is, therefore, whether

an exception may be made to the normal residency re-

quirement contained in O.C.G.A. § 46-2-1(b) in the elec-

tions held immediately after district lines are redrawn

during the reapportionment process. This administrative

law judge has been unable to locate any legal authority on

this issue as it specifically relates to elections involving

the PSC; however, two unofficial opinions of the Attorney

General of Georgia discuss this issue in the context of the

durational residency requirements contained in the

Georgia Constitution for candidates vo the ates Gen-

eral Assembly.

App. 15

After the 1981 reapportionment of the General Assembly,

the Attorney General held that a candidate for the Georgia

House of Representatives could not claim an exemption

from the constitutional requirement that he reside in a

particular numbered district prior to the election on the

basis that he had lived in that particular district for more

than a year before the redrawing of district lines involved

in the reapportionment process placed his residence out of

the district. The Attorney General held that “[a]bsent any

exception to the statute’s residency requirement, either in

statute or implied by judicial interpretation, it is reason-

able to assume that the statute applies its requirements

regardless of the effects of reapportionment.” 1981 Op.

Att’y Gen. U81-28.

In a recent unofficial opinion involving the latest reappor-

tionment, the Attorney General reaffirmed the holding of

the 1981 unofficial opinion and stated, “I know of no

authority that would permit the waiver of the Constitu-

‘tion’s durational residency requirements. Indeed, the

Constitution’s language provides that while a person is not

always eligible to run for the particular :umbered district

he prefers, every person who has maintained a permanent

residence for one year within a newly drawn district would

meet the durational residency requirements for purposes

of running for office.” 2001 Op. Att’y Gen. U2001-3.

In the recent decision of Johnson v. Barnes, U.S.D.C., ND

Atlanta, Civil Action File No. 1:02-cv-0877-WBH, 6/20/02,

App. 16

Judge Willis Hunt declined to stay the enforcement of the

district residency requirements involving Georgia’s recent

reapportionment of the General Assembly. Judge Hunt

held that the residency requirements are enforceable. In

fact, one of the plaintiffs in that case, Mr. Merlino, missed

the durational .esidency requirement for House District

32 by only three weeks. The Court held that this neverthe-

less prevented Mr. Merlino from running in this election.

Id. at 17. The facts involving Mr. Merlino are somewhat

similar to the present case because prior to moving to his

present domicile, Mr. Merlino had resided in the old House

District number 32. In Judge Hunt’s opinion, Mr. Mer-

lino’s residency in the old House District number 32 did

not assist him in qualifying for the new House District

number 32.

This administrative law judge finds the reasoning of the

above legal authority on the effect of reapportionment on

the durational residency requirements for the General

Assembly to be persuasive and applicable to the dur-

ational residency requirements for PSC Commissioners

found in O.C.G.A. § 46-2-1(b). Just as they are in the

General Assembly, the durational residency requirements

relating to the PSC districts are intended to ensure that

candidates are familiar with the needs, problems and

desires of their particular districts.

Because O.C.G.A. § 46-2-1(b) contains no exceptions to the

twelve month residency requirement and there appears to

be no judicial interpretation of the statute creating such

App. 17

an exception, this administrative law judge finds that the

Respondent does not meet the one year residency re-

quirement for a candidate for District 4 of the PSC be-

cause he will not have lived in the current District 4 for

one year at the time of the General Election in November

2002.

There was much evidence presented at the hearing as to

whether the Respondent has actually changed his resi-

dency from Jackson to Banks County. Given my ruling

that, even if the Respondent is correct in his assertion that

he changed his permanent residency to Banks County on

January 15, 2002, the Respondent does not meet the one-

year residency requirement contained in O.C.G.A. § 46-2-

1(b); therefore there is no need to resolve this issue in this

decision.

During the hearing, counsel for the Respondent contended

that if O.C.G.A. § 46-2-1(b) requires a candidate for a

district seat on the PSC to have resided in a newly drawn

district for one year prior to the election such a durational

residency requirement contained in the statute would

violate the due process clause, the equal protection clause

and the First Amendment of the United States Constitu-

tion and the Georgia Constitution (T.17-21). While these

constitutional issues are noted for the record, this admin-

istrative law judge lacks authority to rule on them. OSAH

Rules 616-1-2-.22(3); Flint River Mills v. Henry, 239 Ga.

347 (1977).

App. 18

IV. DECISION

It is the decision of this administrative law judge that the

Respondent does not meet the durational residency re-

quirements found in found in O.C.G.A. § 46-2-1(b) to be a

candidate for District 4 of the Georgia Public Service

Commission, in that he will not have resided in District 4

for a period of one year on the date of the General Election

on November 5, 2002.

This the 30th day of July, 2002.

/s/ W. Joseph Baird

W. Joseph Baird

Administrative Law Judge

App. 19

BEFORE THE SECRETARY OF STATE

STATE OF GEORGIA

In the matter of:

LAUREN “BUBBA” *

MCDONALD,

Petitioner, * Docket No.

V. * OSAH-ELE-CE-0300328-78-WJB

J. MAC BARBER,

Respondent.

FINAL DECISION AND ORDER OF

THE SECRETARY OF STATE

The above-styled matter was referred to the Office of

State Administrative Hearings for a review of evidence

pursuant to O.C.G.A. §§ 21-2-5(b) and 50-13-41(a)(1), and

a hearing was held on July 19, 2002, at which Respondent

and Petitioner appeared and both parties were repre-

sented by counsel.

The Administrative Law Judge (ALJ) submitted an

Initial Decision pursuant to O.C.G.A. § 50-13-41(c), a copy

of which is attached hereto. The ALJ concluded that the

Respondent had not resided within Public Service Com-

mission District 4 for the requisite one-year period de-

scribed in O.C.G.A. § 46-2-1(b).

I agree with the Initial Decision, and hereby adopt the

ALJ’s Findings of Fact and Conclusions of Law as the

findings of act and conclusions of law in this matter, and

incorporate said findings and conclusions into this Final

Decision and Order by reference.

Based upon these findings and conclusions of law, I

HEREBY FIND that the Respondent in this case has

App. 20

failed to meet the qualifications for candidacy required by

Georgia law. I conclude that Respondent is therefore

DISQUALIFIED from seeking the District 4 seat on the

Georgia Public Service Commission. Respondent’s name

shall be stricken from the primary ballots for this race,

and if ballots for this race have been printed, any votes

cast for Respondent shall not be counted and such votes

shall be void and of no effect.

This 31st day of July, 2002.

/s/ Cathy Cox

CATHY COX

Secretary of State

App. 21

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

J. MAC BARBER, )

_ )

Plaintiff, ) CIVIL ACTION

vs. ) FILE NO. 2002-CV-56692

CATHY COX, in her )

Official Capacity as ) (Filed Aug. 7, 2002)

Secretary of State of

the State of Georgia,

Defendant.

ORDER AND JUDGMENT

Plaintiff having appealed the final decision and Order

of the Secretary of State dated July 31, 2002, by filing a

Petition in this Court as required by law, and

IT APPEARING THAT the eligibility of Plaintiff to be

a candidate for the District 4 seat on the Public Service

Commission was challenged by an elector because Plaintiff

will not have resided in District 4 as it is presently config-

ured for one year prior to the General Election on Novem-

ber 5, 2002, and

IT APPEARING THAT said challenge was heard on

July 19, 2002, before an Administrative Law Judge of the

Office of the State Administrative Hearings, and

IT APPEARING THAT said Administrative Law

Judge issued his opinion on July 30, 2002, in which he

concluded that Plaintiff does not meet the twelve month

residency requirements contained in O.C.G.A. § 46-2-1(b)

because Plaintiff will not have lived in District 4 for twelve

months from the time it was reconfigured on April 11,

2002 to the generai election on November 5, 2002, and

App. 22

IT APPEARING THAT the decision of the Adminis-

trative Law Judge was adopted by the Secretary of State

in a decision dated July 31, 2002, in which the Secretary of

State ordered that Plaintiff is disqualified from seeking

the District 4 seat on the Georgia Public Service Commis-

sion and that Plaintiff's name shall be stricken from the

primary ballots for this race, and if ballots for this race

have been printed, any votes cast for Plaintiff shall not be

counted and such vote shall be void and of no effect, and

IT APPEARING THAT Plaintiff raised constitutional

issues concerning the twelve month residency require-

ments of O.C.G.A. § 46-2-1(b), but these constitutional

issues were not passed on by the Administrative Law

Judge, and

IT APPEARING THAT Plaintiff is a legal resident of

District 4, having become a legal resident of Jackson

County on December 15, 2000, and having continued as

such until January 15, 2002, at which time he became a

legal resident of Banks County, and

IT APPEARING THAT Jackson County, where the

Plaintiff resided until January 15, 2002, along with twelve

other counties and part of Gwinnett County was removed

from District 4 by an Act of the General Assembly effective

April 11, 2002, at which time four additional counties and

a part of Gwinnett County were added to District 4, and

IT APPEARING THAT the decisions of the Adminis-

trative Law Judge and the Secretary of State have applied

O.C.G.A. § 46-2-1(b) to mean that Plaintiff had to live

within “District 4 as it has been configured since reappor-

tionment” for twelve months prior to the general election

on November 5, 2002, and

LIDAR IS ie Ot ene Ne ANS 5 wt OO 8 dae

Am TE MN ER hai Sy athe ae

App. 23

THIS CASE having come on for hearing on August 6,

2002, and this Court having heard and considered the

arguments of counsel for Plaintiff and counsel for Defen-

dant and the applicable law, and having reviewed and

considered a certified copy of the entire record of the

proceedings under review.

IT IS CONSIDERED, ORDERED AND ADJUDGED

that:

(a)

(b)

(c)

so much of the provisions of O.C.G.A. § 46-2-1(b)

as provides: “In order to be elected as a member of

the commission from a Public Service District, a

person must have resided in that District for at

least 12 months prior to election thereto.”, (under-

lining supplied) is unconstitutional as it applies to

Plaintiff by disqualifying Plaintiff from seeking

the District 4 seat on the Georgia Public Service

Commission because he will not have resided

within District 4 as it has been reconfigured since

reapportionment (April 11, 2002) for one year

prior to the November 5, 2002, General Election,

said provision as thus applied being in violation of

the Constitutions of the State of Georgia and the

United States, and especially of the Equal Protec-

tion clauses of the Constitutions of the State of

Georgia and the United States, and

Plaintiff is therefore qualified to seek the District

4 seat on the Georgia Public Service Commission,

and

The Secretary of State if ordered to take whatever

steps are necessary to ensure that Plaintiff’s

name is on the appropriate primary ballots for the

District 4 seat on the Georgia Public Service

Commission.

App. 24

THIS DECISION is limited to the instant case and to

the 2002 elections, it appearing that over twelve months

will have passed before the 2003 general elections.

IT IS SO ORDERED, this 7th day of August, 2002.

/s/ John S. Langford

JOHN S. LANGFORD

Senior Judge, Georgia

Superior Courts

Order prepared by:

/s/ Nick P. Chilivis

Nickolas P. Chilivis

Georgia Bar No. 124800

Counsel for Plaintiff

Chilivis, Cochran, Larkins & Bever LLP

3127 Maple Drive, N.E.

Atlanta, GA 30305

(404) 233-4171

App. 25

U.S. CENSUS BUREAU U.S. Department

Helping You Make of Commerce

Informed Decisions Economics and

Statistics Administration

U.S. CENSUS BUREAU

March 1999

March 2000

Issued May 2001

Geographical Mobility

Population Characteristics

Current

Population

Reports

By Jason Schachter

Geographical mobility has long been an important aspect

of American life. This report highlights some of the

changes that have occurred in recent years, including

differences in the extent of movement, in the types of

movement, in the characteristics of movers compared with

nonmovers, and in how the population is distributed.

These changes are important to federal, state, and local

governments.as they plan for needed services and facilities

such as schools and hospitals. Geographical mobility data

are also used by private industry as they expand and

locate businesses and other services. .

All respondents in the March 2000 Current Population

Survey were asked whether they lived at the same resi-

dence 1 year earlier. Nonmovers were living in the same

home at both dates. Movers were asked for the location of

their previous residence. When current and previous

App. 26

residences are compared, movers can be categorized by

whether they were living in the same or different county,

state, region, or were movers from abroad. Though not

true in all cases, we treat these different types of moves as

if they form a distance continuum. In addition, movers can

be categorized by whether they moved within or between

metropolitan areas, central cities of metropolitan areas,

other parts of metropolitan areas, or nonmetropolitan

areas of the United States.

About 43 million Americans moved.

Between March 1999 and March 2000, 43.4 million Ameri-

cans moved.’ Over half (56 percent) of these moves were

local (within the same county), 20 percent were between

counties in the same state, and 19 percent were moves to a

different state. Only 4 percent of movers came from

abroad.

[Figure 1 Omitted In Printing]

[Table A Omitted In Printing]

The overall moving rate has stayed constant, but

people moved longer distances.

Overall moving rates have not changed substantially over

the past few years, and the 1999-2000 rate is among the

lowest rates found during the past decade. However, since

‘ The estimates in this report are based on responses from a

sample of the population. As with all surveys, estimates may vary from

the actual (population) values because of sampling variation, or other

factors. All statements made in this report have undergone statistical

testing and meet U.S. Census Bureau standards for statistical accu-

racy.

App. 27

1998, there has been a decrease in the percentage of moves

made within the same county and a corresponding in-

crease in the percentage of moves between counties,

particularly to counties in different states. In 1998, 64

percent of all moves were within the same county, com-

pared with 56 percent of all moves in 2000.’ Similarly, in

1998, 15 percent of all moves were between states, com-

pared with 19 percent of all moves in 2000.

CHARACTERISTICS OF MOVERS

Moving rates differ by characteristics like age, rate,

Hispanic origin, income, housing tenure, marital status,

and education. Table B shows mobility rates by many of

these characteristics.

[Figure 2 Omitted In Printing]

20- to 29-year olds had the highest moving rates.

About one-third of 20- to 29 year olds moved in the previ-

ous year, a little more than twice the moving rate of all

people 1 year and older (16 percent). Among adults, as age

increased moving rates decreased, at least until very

advanced ages: by ages 65 to 84, the rate was only 4

percent. Moving rates were higher for young adults be-

cause of their relatively higher frequency of life course

events (such as marriage, child birth, or a new job).

[Table B Omitted In Printing]

? These proportions can be calculated from Table A by dividing the

percent moved for the type of move (e.g. within the same county) by the

total percent moved.

App. 28

White non-Hispanics were less mobile than other

racial and ethnic groups.’

White non-Hispanics had the lowest moving rate (14

percent). Hispanics (of any race) and Asians and Pacific

Islanders had the highest overall moving rates (about 20

percent), closely followed by Blacks (19 percent). Among

people who moved, Hispanics and Blacks were most likely

to have moved within the same county (63 and 61 percent,

respectively), while White non-Hispanics were most likely

to have made intercounty and interstate moves (44 per-

cent). Asians and Pacific Islanders and Hispanics were

much more likely than Blacks or White non-Hispanics to

have come to the United States from abroad.

Table C shows that some of the mobility difference be-

tween White non-Hispanics and other racial and ethnic

groups can be attributed to age. For example, Hispanic

moving rates were higher than White non-Hispanics in

most age categories. However, standardized overall mov-

ing rates show that even if the Hispanic population had

the same age distribution as the White non-Hispanic

population, the moving rate would still have been higher

for Hispanics (18 percent compared with 14 percent).

[Table C Omitted In Printing]

* Data for the American Indian and Alaska Native population are

not shown in this report because of the small sample size in the

Current Population Survey. Based on the March 2000 Current Popula-

tion Survey, 3 percent of the Black population and 2 percent of the

Asian and Pacific Islander Population are also of Hispanic origin.

* See footnote 2.

App. 29

Single and divorced people were more likely to

move than married people.

Among those 16 years and older, single and divorced or

separated people were most likely to have moved, followed

by married people. Widowed people were least likely to

have moved. Age could explain some of this variation,

particularly the higher moving rates of those never mar-

ried and the lower rates of widowed people. People living

in married-couple family households were less likely to

have moved than those living in other types of households.

One-third of renters moved.

Nearly one-third of people living in renter-occupied hous-

ing units in March 2000 moved in the previous year,

compared with only 1 in 11 people living in owner-occupied

housing units. Housing tenure is closely related to age,

race, Hispanic origin, and income. Those living in owner-

occupied housing units are more likely to be older, White

non-Hispanic and more affluent than those living in

renter-occupied units.

Lower-income groups were more likely to move

than higher-income groups.

People living in households in lower-income categories

were more likely to move than those in higher-income

categories: 21 percent for incomes under $25,000, com-

pared with 12 percent for incomes over $100,000. Some of

this disparity may reflect differences in homeownership

® As is the case with all characteristics on the Current Population

Survey, housing tenure is measured at the time of the survey in March

2000; tenure before the move is not ascertained.

App. 30

patterns, particularly the higher proportion of renters

among households with low incomes.

Additionally, those living in households with income less

than $50,000 were more likely than those with higher

incomes to move short distances (about 60 percent and 50

percent, respectively). Some of these differences could be

explained by factors like educational differences, differ-

ences in reasons for moving, and potentially higher costs

associated with making longer distance moves.

Moving rates differ by the poverty status of individuals.

Those with income below the poverty level were more

likely to have moved (28 percent) than those with income

150 percent above the poverty level or higher (14 percent).

Also, those with income below the poverty level were more

likely to have made a short-distance move (about 61

percent) than those in the higher income group (about 54

percent).

People of different education levels had similar

moving rates.

There were only small differences in moving rates by

education, ranging from 12 percent of those with only a

high school education to 15 percent of those with a bache-

lor’s degree. However, movers with a bachelor’s degree

were more likely to have moved longer distances: 47

percent made an intercounty move compared with 34

percent of those with less than a high school education.

This difference could indicate that better educated people

move longer distances for better paying jobs.

gta! CA Sitlnnahei A

App. 31

REGIONAL MOVEMENTS

Interstate migration, along with differences in rates of

natural increase (births minus deaths), changes the

distribution of the population among regions of the coun-

try. In recent decades, more people have moved from North

to South than in the opposite direction, and this trend

continued. Figure 3 shows the flows of migrants among

the four major regions of the United States between 1999

and 2000.

[Figure 3 Omitted In Printing]

Only the Northeast had a net loss in population

because of internal migration.

As found throughout the 1990s, more people moved from

the Northeast than to it from other regions of the country.

Of all the regions, only the net loss of 252,000 people for

the Northeast and the net gain of 227,000 people for the

South were statistically significant for the 1999-2000 year.

Nonmetropolitan areas had net internal migration

close to zero.

Nonmetropolitan areas as a whole had about equal num-

bers of internal inmigrants and outmigrants during the

year — 1.9 million people compared with 2.0 million, as

shown in Table D. These numbers are not statistically

different.

[Table D Omitted In Printing]

App. 32

Within metropolitan areas, central cities had net

outmigration, while the population outside central

cities had net inmigration.

Metropolitan areas outside central cities were the most

frequent destination among movers within and between

metropolitan areas. Although metropolitan areas as a

whole had about equal numbers of inmigrants and outmi-

grants, central cities of metropolitan areas followed the

migration pattern found throughout the 1990s: continued

net migration loss. Between 1999 and 2000, 6.9 million

people moved out of central cities, while 3.7 million moved

in, resulting in a net loss due to internal migration of 3.2

million people.

Movers from abroad added population to the West

and helped offset net internal migration losses for

the Northeast.

Between March of 1999 and 2000, the CPS estimates that

1.75 million people moved to the United States from

abroad. Two-thirds of these movers were foreign-born and

not United States citizens (1.2 million), while the other

third were civilian citizens (600,000). Most movers from

abroad (1.2 million) came to the South and West.

The CPS does not collect data on the number of people

who move away from the United States, and thus it is not

possible to use the CPS to estimate net international

migration. However, the Census Bureau does provide

independently derived estimates for net international

migration using administrative records and other data.

The components of net international migration include:

legal immigration to the United States as reported by the

Immigration and Naturalization Service; refugee data

from the Office of Refugee Resettlement; an estimate of

er ne

App. 33

net undocumented immigration from abroad, based on

data from the Immigration and Naturalization Service and

the 1990 decennial census; an estimate of emigration from

the United States based on data from the 1980 and 1990

censuses; and net movement between Puerto Rico and the

United States.

These estimates based on administrative records indicate

that 852,000 more people came to the United States from

abroad than left between July 1 of 1998 and 1999, the

latest year for which these estimates are available. Com-

bining these estimates by region with regional net domes-

tic migration figures suggests that all regions except the

Northeast showed significant population gains from net

migration. While the West did not experience a significant

gain in population from domestic migration, it did grow

when net international migration is included. Although

the Northeast still had a significant loss of people, this loss

was mitigated by net international migration.

SOURCE OF DATA

Most estimates in this report come from data collected in

March 2000 by the CPS. The CPS is a monthly national

survey of about 50,000 households, representative of the

civilian noninstitutional population of the United States.

Some estimates are based on data collected by the CPS in

earlier years. The Census Bureau conducts the CPS every

month but collects the data on residential mobility only in

March.

App. 34

ACCURACY OF ESTIMATES

Statistics from sample surveys are subject to sampling and

nonsampling error. All comparisons presented in this

report have taken sampling error into account and meet

the Census Bureau’s standards for statistical significance.

Nonsampling errors in surveys may be attributed to a

variety of sources, such as how the survey was designed,

how respondents interpret questions, how able and willing

respondents are to provide correct answers, and how

accurately answers are coded and classified. The Census

Bureau employs quality control procedures throughout the

production process — including the overall design of sur-

veys, testing the wording of questions, reviewing the work

of interviewers and coders, and statistical review of

reports.

The CPS employs ratio estimation, whereby sample

estimates are adjusted to independent estimates of the

national population by age, race, sex, and Hispanic origin.

This weighting partially corrects for bias due to undercov-

erage, but how it affects different variables in the survey

is not precisely known. Moreover, biases may also be

present when people who are missed in the survey differ

from those interviewed in ways other than the categories

used in weighting (age, race, sex, and Hispanic origin). All

of these considerations affect comparisons across different

surveys or data sources.

For further information on statistical standards and the

computation and use of standard errors, contact Alfred

Meier, Demographic Statistical Methods Division, at 301-

457-4220 or on the Internet at Alfred.G.Meier@census.gov.

App. 35

MORE INFORMATION

A set of detailed tabulations consisting of 30 tables from

the 2000 March CPS shows more detailed characteristics

of movers and nonmovers by type of move for the United

States and the regions. The electronic version of these

tables is available on the Internet at the Census Bureau’s

World Wide Web site (www.census.gov). Once on the site,

go to “Subjects A to Z,” then click on “M,” and finally on

“Migration.”

An abbreviated paper version of the tables (without the

race and geographic repeats) is available as PPL-144 for

$24.50. To receive a paper copy, send a request for “PPL-

144, Geographical Mobility: March 1999 to March 2000,”

along with a check or money order in the amount of $24.50

payable to Commerce-Census-88-00-9010, to the U.S.

Department of Commerce, Census Bureau, P.O. Box

277943, Atlanta, GA 30384-7943, or call the Population

Division’s Statistical Information Office on 301-457-2422.

A copy of these tabulations will be made available to any

existing Current Population Report P20 subscriber with-

out charge, provided that the request is made within 3

months of the issue date of this report.

CONTACTS

Statistical Information Staff

pop@census.gov

301-457-2422

Jason Schachter

jason.p.schachter@census.gov

301-457-2454

App. 36

USER COMMENT

The Census Bureau welcomes the comments and advice of

users of our data and reports. If you have any suggestions

or comments, please write to:

Chief, Population Division

U.S. Census Bureau

Washington, DC 20233

or send e-mail to:

pop@census.gov

SRG SS Riek SPF

App. 37

Population Characteristics

Geographical Mobility:

March 1995 to March 1996

Current

Population Reports By Kristin A. Hansen

P20-497

CENSUS BUREAU Issued November 1997

Geographical mobility has long been one of the predomi-

nant factors in American life. This report highlights some

of the important changes that have occurred in recent

years, including changes in the volume and rates of move-

ment, changes ii the types of movement, differences in the

characteristics of movers compared with nonmovers, and

changes in the patterns of population distribution attribut-

able to residential migration. These changes are important

to federal, state, and local governments as they plan for

needed services and facilities such as schools and hospitals.

These data are also used by private industry to plan

expansion and location of businesses and other services.

[Figure 1. Omitted In Printing]

All persons in the March CPS sample were asked

whether or not they lived in the same house or apartment

one year earlier. Nonmovers were living in the same house

at both dates. Movers were asked for the location of their

previous residence. When current and previous residence

are compared, movers can be categorized as to whether

they were living in the same or different county, state,

region, or were movers from abroad. They can also be

categorized by whether they moved within or between

central cities, suburbs, and nonmetropolitan areas of the

United States.

App. 38

About 43 million American moved

Between March 1995 and March 1996, 42.5 million

Americans moved. Most of them, 26.7 million, moved from

one residence to another within the same county; another

8 million moved between counties within the same state;

and 6.5 million changed states. Additionally, during that

one-year period, about 1.4 million persons moved into the

United States from abroad.

Moving rates continue to decline

Despite the large number of moves that occurred

between March 1995 and March 1996, the percentage of

Americans who moved was only 16.3 percent — a decline

from the rates in earlier decades. Table A shows the

annual mobility rates for the past 5 years. While the

apparent changes in the moving rates from one year to the

next are not statistically significant, over time they add up

to an important decline in the overall moving rate. The

annual mobility rate was around 20 percent for most years

during the 1950s and 1960s and then gradually declined to

a low of 16.6 percent in 1983. Following a short-term

increase in mobility rates during the mid-1980s (peaking

at 20.2 percent between March 1984 and March 1985),

rates again fell to the 1983 levels. The 1996 and 1983

rates are not statistically different.

Most moves are local

Most movers stay in the same county. In fact, nearly

two-thirds of the movers between March 1995 and March

1996 made this type of “local” move. Moves which cross

state lines or cross county boundaries within the same

state could be considered local moves if they are within the

—

Piedad aid or sncesee om

App. 39

Same commuting area. In this report, however, all inter-

county moves are considered “long-distance” moves.

Movers are somewhat more likely to move between coun-

ties in the same state (18.8 percent) than to move between

states (15.2 percent).

[Table A. Omitted In Printing]

Young adults move the most

The highest moving rates are for people in their

twenties as shown in Figure 2. About one-third of people

20 to 29 years old moved in the previous year. This is twice

the rate for all persons 1 year and older (16.3 percent).

Moving rates continue to decline as age increases to 21.9

percent for people 30 to 34 years old, 14.1 percent for those

35 to 44 years old, 9.8 percent for those 45 to 54 years old,

and 6.6 percent for people 55 to 64 years old. The apparent

differences in the moving rates for age groups over 65

years are not significant.

(Figure 2. Omitted In Printing]

Whites move less

Whites have lower overall rates of moving (15.7

percent) than either Blacks or Asian and Pacific Islanders

— about 20 percent for both groups. Persons of Hispanic

origin’ have the highest rates of moving (23.0 percent).

These differences in rates of moving by race and ethnicity

are partly the result of the differences in age structure

among the different racial groups. The median age of all

Whites is 35.4 years, compared with about 30 years for

’ Persons of Hispanic origin may be of any race, but 95.6 percent of

Hispanics in the 1996 CPS reported their race as White.

App. 40

both Blacks and for Asian and Pacific Islanders, and 26.3

years for Hispanics.

A similar pattern is observed for local movers; the only

difference is where Asian and Pacific Islanders rank.

Whites and Asian and Pacific Islanders have the lowest

rates of moving within the same county, while Hispanics

have the highest rate. The rate for Blacks is higher than

the rate for Whites and Asian and Pacific Islanders but

lower than the rate for Hispanics.

It is difficult to discern patterns of differences in

mobility rates among race and/or Hispanic origin groups

for longer distance moves. While there is no statistically

significant difference in the rates of moving between

counties within the same state for Blacks and Whites,

Whites are more likely to move to a different state. His-

panics have much higher rates of moving from abroad (1.8

percent) than Blacks or Whites, although not as high as

Asian and Pacific Islanders (3.0 percent).

[Table B. Omitted In Printing]

About 1.4 million moved from abroad

The majority of people moving from abroad were

immigrants from foreign countries and temporary resi-

dents such as foreign college students. As shown in Table

B, two-thirds of all movers from abroad were not U.S.

citizens. Native-born movers from abroad include people

coming into the country from Puerto Rico or outlying areas

of the United States such as the U.S. Virgin Islands,

Guam, the Northern Marianas, or American Samoa;

members of the U.S. Armed Forces and their dependents

returning from assignment overseas; and other U.S.

citizens returning from foreign countries.

rani acct gic nes rei senate cr casas

App. 41

Most movers from abroad were between 20 and 64

years old (66.0 percent); few were over 65 (1.4 percent).

The remainder were children and teens under the age of

20 (32.7 percent). Over one-third (37.5 percent) were of

Hispanic origin, although Hispanics make up only 10.6

percent of the total population. While 70.5 percent of the

movers from abroad (including most of the Hispanics)

were White, one-fifth were Asian or Pacific Islanders (21.2

percent).

One-third of renters moved

One-third of persons living in renter-occupied housing

units in March 1996 moved in the previous year (33.5

percent).” In contrast, only one in twelve persons in owner-

occupied housing units moved in the same period (8.2

percent). Renters have vastly higher rates of moving than

owners for all types of moves.

Tenure (owner/renter status) is closely related to age,

race, and Hispanic origin. Renters are, ON average,

. younger than homeowners. The median age of all persons

living in renter-occupied housing units was 27.9 years,

compared with 38.4 years for all persons living in owner-

occupied housing units. There are also differences by race

and Hispanic origin. While nearly three-quarters of

Whites (71.7 percent) and more than half of Asian and

Pacific Islanders (56.8 percent) lived in owner-occupied

* Tenure (whether the person is living in a housing unit occupied

by owners or renters) has a very strong correlation with mobility rates.

Tenure (as shown in Table D) is owner/renter status at the time of the

survey in March 1996; tenure before the move is not available from the

Current Population Survey.

App. 42

units, more than half of Blacks and Hispanics were living

in rental units (52.5 and 56.1 percent, respectively).

Regional movement

Interstate migration acts to redistribute the popula-

tion among the regions of the country, and westward

migration, which has long been a factor in the settlement

of this country, continues. In addition, population flowed

from the more rural south to the more industrialized north

following the Civil War and throughout the first half of

this century. However, the direction of interregional

migration has shifted, and in recent decades more people

have moved from north to south than in the opposite

direction.* Flows of migrants among the four major regions

of the United States between 1995 and 1996 are illus-

trated in Figure 3.

Northeast has net loss

Table C shows inmigration, outmigration, and net

internal migration for each of the four major regions

between 1995 and 1996. Only the net loss of 234,000

shown for the Northeast is statistically significant. For

each of the other three regions, net migration is not

significantly different from zero.

When the movers from abroad are included in the net

migration figures for each region, all regions except the

* Larry Long, “Migration and Residential Mobility in the United

States,” Russell Sage Foundation, New York, NY, 1988.

App. 43

Northeast ~had significant net population gains.‘ The

Northeast had enough movers from abroad to offset its net

loss domestically.

[Table C. Omitted In Printing]

Westerners move the most

Westerners had the highest rates of moving (20.9

percent) compared with people living in the other four

regions in 1996. (See Table D for the numbers of movers

and type of move by region.) The Northeast had the lowest

overall moving rate; its rate of 11.6 percent was well below

the national rate of 16.3 percent. People living in the

Midwest also had lower than average moving rates — 14.3

percent of those living there had moved in the previous

year. In contrast, Southerners joined Westerners with

higher overall moving rates than the national average —

17.4 percent.

[Table D. Omitted In Printing]

Regional differences exist by type of move as weil. The

West had a higher percentage of local movers (13.9 percent

moved within the same county) than found nationally,

while the Northeast and the Midwest had lower rates than

average (7.5 and 8.9 percent, respectively, compared with

10.3 percent nationally). The rate of local moving in the

South was no different than the national average.

* The number of people moving out of the United States is not

available but the Census Bureau estimates it as only about 222,000

annually. See Kevin Deardorff and Frederick Hollman, “U.S. Popula-

tion Estimates by Age, Sex, Race and Hispanic Origin”, PPL-57, U.S.

Census Bureau, Washington DC 20233, March 1997.

App. 44

Long distance moves are much less common than local

moves regardless of region but, as with local moves, there

are differences from region to region. The Northeast, the

Midwest, and the South all had rates of moving between

counties within the same state (2.1, 2.8, and 3.6 percent,

respectively) that were statistically different from the

national rate (3.1 percent). Interstate moving rates were

smaller than inter-county moves within states for all

regions except the West. The Northeast had the lowest

interstate moving rate (1.5 percent), but the rate found in

the Midwest (2.3 percent) was also lower than the rates for

the other two regions (2.9 percent).

[Table E. Omitted In Printing]

Metropolitan areas had a net loss of movers

The movement between cities, suburbs,” and non-

metropolitan areas during the year was substantial. While

1.5 million people moved into metropolitan areas from the

nonmetropolitan parts of the country, 1.8 million moved

out. As a result of this movement, metropolitan areas’ as a

whole had a significant net loss. During the last ten years,

metropolitan areas in the aggregate have had about equal

numbers of inmigrants and outmigrants, with the excep-

tion of 1992 to 1993 when metropolitan areas had a net

* In this report, the suburbs include all territory within an MSA

but outside of a central city.

* Metropolitan areas are redefined following each decennial census.

The individual metropolitan areas were redefined in 1993 using data

from the 1990 decennial census. The Current Population Survey began

using these new definitions in 1995. Because of this change, the

metropolitan data in this report are not strictly comparable with data

from the 1994 or earlier reports.

App. 45

loss of 317,000 people. During the mid-1980s, metropolitan

areas had net gains of 300,000 to nearly half a million.

Between 1987 and 1992, metropolitan areas had no

significant net gains or losses.

Central cities lost while the suburbs gained

The suburbs were the most popular destinations

among movers within and between metropolitan areas.

While metropolitan areas as a whole had a small net loss,

the cities and suburbs that comprise the metropolitan

areas had totally different migration patterns. Between

1995 and 1996, 6,328,000 people moved out of central

cities while 3,893,000 moved in, resulting in a net loss due

to migration of 2,436,000 people. At the same time,

6,435,000 people moved into the suburbs and 4,275,000

moved out. This gave the suburbs a net gain of 2,160,000

movers.’

Movers to nonmetropolitan areas were no more likely

to come from central cities than from the suburbs.

Movers from abroad prefer metropolitan locations

Only 105,000 movers from abroad went to nonmetro-

politan areas while 1,256,000 went to metropolitan areas.

Movers from abroad were no more likely to end up in the

suburbs (693,000 persons) than in central cities (563,000

persons). This was also true in the 1993-94 period, but for

” The net change and the flows for the central cities are not

significantly different than those for the suburbs.

App. 46

most years during the late 1980s and 1990s movers from

abroad were most likely found living in central cities.

The estimated number of emigrants from the United

States each year of 222,000 is a very small number com-

pared to the 1.4 million gain. When movers from abroad

are included in the calculation of net migration, metropoli-

tan areas had a net gain of 981,000 people compared with

a net loss of 275,000 due to migration within the United

States.

Movers stay close to home

Over half of all movers (24 million) stayed in the same

metropolitan area. In contrast, only 8 million people

moved between metropolitan areas. Most movers within

nonmetropolitan America also stayed close to home. Three

quarters of the 5.6 million people who moved from one

nonmetropolitan location to another stayed within the

same county.

City or suburb?

Three quarters of all movers stayed in metropolitan

areas, and more chose suburbia than the central cities as

their destination. While 10.8 million people moved within

or between central cities of metropolitan areas, 12.7

million moved from one suburban location to another. At

the same time 5.5 million left the cities for suburbia but

only 3.3 million abandoned the suburbs for city life.

Source of data

Most estimates in this report come from data collected

in March 1996 Current Population Survey (CPS). Some

App. 47

estimates are based on data collected by the CPS in earlier

years. The Census Bureau conducts the CPS every month

but collects the data on residential migration only in

March.

Accuracy of the estimates

All statistics are subject to sampling error, as well as

nonsampling error such as survey design flaws, respon-

dent classification and reporting errors, data processing

mistakes, and undercoverage. The Census Bureau at-

tempts to reduce errors made by respondents, coders and

interviewers through the use of quality control and editing

procedures. Ratio estimation to independent age-race-sex-

Hispanic origin population controls partially corrects for

bias attributable to survey undercoverage. However,

biases exist in the estimates when missed persons have

characteristics different from those of interviewed persons

in the same age-race-sex-Hispanic origin group.

Analytical statements in this report have been tested

and meet statistical standards. However, because of

methodological differences, use caution when comparing

these data with data from other sources. Contact Don

Keathley, Demographic Statistical Methods Division, at

301-457-4182 or on the Internet at dkeathley@census.gov

for information on the source of the data, the accuracy of

the estimates, the use of standard errors, and the compu-

tation of standard errors.

More information

A package of tables showing more detailed character-

istics of movers and nonmovers by type of move, for the

App. 48

United States and regions, is available from the Census

Bureau. Characteristics include age, sex, race, Hispanic

origin, educational attainment, marital status, household

relationship, family type, ages of own children by type of

family, labor force status, occupation, industry, and in-

come. These tables are available on paper for $38 (PPL-69)

from the Population Division’s Statistical Information

Staff at 301-457-2422.

The detailed tables are also on the Internet:

(http://www.census.gov). Look for “Migration” in the

“Subjects A to Z” index. There is other migration informa-

tion at that location including data from the 1990 Census

and a few time series tables with data from past CPS

reports. Data on net migration for states and counties

calculated as a residual from the Census Bureau’s Popula-

tion Estimates program are also on the Internet; see

“Estimates” in the “Subjects A to Z” index.

More geographically detailed migration data from the

1990 Census are also available. See data on “Residence in

1985” for states, counties, and cities, and metropolitan

areas in CP-2, “Social and Economic Characteristics” and

CP-3, “Census Tracts”. Public use microdata files (PUMS)

and data on CD-ROM’s are available from Customer

Services at 301-457-4100. The special migration files on

CD-ROM include SP-312, “County to County Migration

Flow Files” and SSTF-15, “Geographic Mobility in the

United States” (data for states and metropolitan areas).

App. 49

Contacts

Statistical Information Staff

pop@census.gov

301-457-2422

Kristin A. Hansen

kahansen@census.gov

301-457-2454

User comments

The Census Bureau welcomes the comments and

advice of users of our data and reports. If you have any

Suggestions or comments, please write to:

Chief, Population Division

U.S. Bureau of the Census

Washington, DC 20233

or send E-mail to:

pop@census.gov

App. 50

OFFICIAL CODE OF GEORGIA ANNOTATED

*** ARCHIVE DATA ***

*** THIS SECTION IS CURRENT THROUGH

THE 1998 SUPPLEMENT ***

*** (1998 SESSION OF THE GENERAL ASSEMBLY) ***

TITLE 46. PUBLIC UTILITIES AND

PUBLIC TRANSPORTATION

CHAPTER 2. PUBLIC SERVICE COMMISSION

ARTICLE 1. ORGANIZATION AND MEMBERS

0.C.G.A. § 46-2-1 (1998)

§ 46-2-1. Election of Commissioners; terms of office

(a) The Georgia Public Service Commission shall

consist of five members to be elected as provided in this

Code section. The members in office on January 1, 2000,

and any member appointed or elected to fill a vacancy in

such membership prior to the expiration of a term of office

shall continue to serve out their respective terms of office.

As terms of office expire, new members elected to the

commission shall be required to be residents of one of five

Public Service Commission Districts as hereafter provided,

but each member of the commission shall ae elected state

wide by the qualified voters of this state who are entitled

to vote for members of the General Assembly. Except as

otherwise provided in this Code section, the election shall

be held under the same rules and regulations as apply to

the election of Governor. The Commissioners, who shall

give their entire time to the duties of their offices, shall be

elected at the general election next preceding the expira-

tion of the terms of office of the respective incumbents.

App. 51

Their terms of office shall be six years and shall expire on

December 31.

(b) In order to be elected as a member of the com-

mission from a Public Service Commission District, a

person must have resided in that district for at least 12

months prior to election thereto. A person elected as a

member of the commission from a Public Service Commis-

sion District by the voters of Georgia must continue to

reside in that district during the person’s term of office or

that office shall thereupon become vacant.

Public Service Commission, the state shal] be divided into

five Public Service Commission Districts described as

follows:

District No. 1

APPLING

ATKINSON

BACON

BALDWIN

BEN HILL

BERRIEN

BLECKLEY

BRANTLEY

BRYAN

BULLOCH

BURKE

CAMDEN

CANDLER

CHARLTON

CHATHAM

CLINCH

COFFEE

COLUMBIA

DODGE

App. 52

ECHOLS

EFFINGHAM

EMANUEL

EVANS

GLASCOCK

GLYNN

HANCOCK

IRWIN

JEFF-DAVIS

JEFFERSON

JENKINS

JOHNSON

LANIER

LAURENS

LIBERTY

LONG

MCDUFFIE

MCINTOSH

MONTGOMERY

PIERCE

RICHMOND

SCREVEN

TATTNALL

TELFAIR

TOOMBS

TREUTLEN

TWIGGS

WARE

WARREN

WASHINGTON

WAYNE

WHEELER

WILKINSON

District No. 2

BAKER

BIBB

BROOKS

App. 53

BUTTS

CALHOUN

CHATTAHOOCHEE

CLAY

COLQUITT

COOK

CRAWFORD

CRISP

DECATUR

DOOLY

DOUGHERTY

EARLY

GRADY

HARRIS

HEARD

HOUSTON

JASPER

JONES

LAMAR

LEE

LOWNDES

MACON

MARION

MERIWETHER

MILLER

MITCHELL

MONROE

MUSCOGEE.

PEACH

PIKE

PULASKI

PUTNAM

QUITMAN

RANDOLPH

SCHLEY

SEMINOLE

STEWART

SUMTER

App. 54

TALBOT

TAYLOR

TERRELL

THOMAS

TIFT

TROUP

TURNER

UPSON

WEBSTER

WILCOX

WORTH

District No. 3

CLAYTON

DEKALB

FULTON - [Tract Information Deleted]

* * *

District No. 4

BANKS

BARROW

CATOOSA

CHEROKEE

CLARKE

DADE

DAWSON

ELBERT

FANNIN

FORSYTH

FRANKLIN

GILMER

GREENE

GWINNETT

HABERSHAM

HALL

HART

JACKSON

LINCOLN

App. 55

LUMPKIN

MADISON

MORGAN

MURRAY

OCONEE

OGLETHORPE

PICKENS

RABUN

STEPHENS

TALIAFERRO

TOWNS

UNION

WALKER

WALTON

WHITE

WHITFIELD

WILKES

District No. 5

BARTOW

CARROLL

CHATTOOGA

COBB

COWETA

DOUGLAS

FAYETTE

FLOYD

FULTON -— [Tract Information Deleted]

* * *

GORDON

HARALSON

HENRY

NEWTON

PAULDING

POLK

ROCKDALE

SPALDING

App. 56

(d) The first members of the commission elected

under this Code section shall be elected thereto on the

Tuesday next following the first Monday in November,

2000, from Public Service Commission Districts 3 and 5,

shall take office on the first day of January immediately

following that election, and shall serve for terms of office

of six years and until the election and qualification of their

respective successors. Those members of the commission

elected thereto on the Tuesday next following the first

Monday in November, 2002, from Public Service Commis-

sion Districts 1 and 4 shall take office on the first day of

January immediately following that election and shall

serve for terms of office of six years and until the election

and qualification of their respective successors. The

member of the commission elected thereto on the Tuesday

next following the first Monday in November, 2004, from

Public Service Commission District 2 shall take office on

the first day of January immediately following that elec-

tion and shall serve for a term of office of six years and

until the election and qualification of his or her respective

successor. All future successors to members of the com-

mission whose terms of office are to expire shall be elected

at the state-wide general election immediately preceding

the expiration of such terms, shall take office on the first

day of January immediately following that election, and

shall serve for terms of office of six years.

HISTORY: Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a;

Civil Code 1895, § 2185; Ga. L. 1906, p. 100, §§ 1-3; Ga. L.

1907, p. 72, § 1; Civil Code 1910, §§ 2615, 2616; Ga. L.

1922, p. 143, § 1; Code 1933, § 93-201; Ga. L. 1998, p.

1530, §§ 1, 2.

App. 57

NOTES:

THE 1998 AMENDMENT, effective July 1, 1998, rewrote

this Code section.

OFFICIAL CODE OF GEORGIA ANNOTATED

* THIS DOCUMENT IS CURRENT THROUGH THE

2002 REGULAR LEGISLATIVE SESSION *

TITLE 46. PUBLIC UTILITIES AND

PUBLIC TRANSPORTATION

CHAPTER 2. PUBLIC SERVICE COMMISSION

ARTICLE 1. ORGANIZATION AND MEMBERS

GO TO CODE ARCHIVE DIRECTOR

FOR THIS JURISDICTION

O.C.G.A. § 46-2-1 (2002)

§ 46-2-1. Election of Commissioners; terms of office

(a) The Georgia Public Service Commission shall

consist of five members to be elected as provided in this

Code section. The members in office on January 1, 2000,

and any member appointed or elected to fill a vacancy in

such membership prior to the expiration of a term of office

shall continue to serve out their respective terms of office.

As terms of office expire, new members elected to the

commission shall be required to be residents of one of five

Public Service Commission 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. Except as

otherwise provided in this Code section, the election shall

App. 58

be held under the same rules and regulations as apply to

the election of Governor. The Commissioners, who shall

give their entire time to the duties of their offices, shall be

elected at the general election next preceding the expira-

tion of the terms of office of the respective incumbents.

Their terms of office shall be six years and shall expire on

December 31.

(b) In order to be elected as a member of the com-

mission from a Public Service Commission District, a

person must have resided in that district for at least 12

months prior to election thereto. A person elected as a

member of the commission from a Public Service Commis-

sion District by the voters of Georgia must continue to

reside in that district during the person’s term of office or

that office shall thereupon become vacant.

Public Service Commission, the state shall be divided into

five Public Service Commission Districts described as

follows:

District 001

Appling County

Atkinson County

Bacon County

Baker County

Ben Hill County

Berrien County

Bleckley County

Brantley County

Brooks County

Bryan County

Bulloch County

Calhoun County

Camden County

Candler County

Charlton County

Chatham County

Chattahoochee County

Clay County

Clinch County

Coffee County

Colquitt County

Cook County

Crisp County

Decatur County

Dodge County

Dooly County

Dougherty County

Early County

Echols County

Effingham County

Evans County

Glynn County

Grady County

Irwin County

Jeff Davis County

Lanier County

Laurens County

Lee County

Liberty County

Long County

Lowndes County

Macon County

Marion County

McIntosh County

Miller County

Mitchell County

Montgomery County

Pierce County

Pulaski County

Quitman County

Randolph County

Schley County

App. 59

App. 60

Seminole County

Stewart County

Sumter County

Tattnall County

Telfair County

Terrell County

Thomas County

Tift County

Toombs County

Treutlen County

Turner County

Ware County

Wayne County

Webster County

Wheeler County

Wilcox County

Worth County

District 002

Baldwin County

Barrow County

Bibb County

Burke County

Butts County

Clarke County

Columbia County

Crawford County

Elbert County

Emanuel County

Glascock County

Greene County

Gwinnett County — [Tract Information Deleted]

* * *

Hancock County

Houston County

Jackson County

Jasper County

Jefferson County

Jenkins County

Johnson County

Jones County

Lincoln County

Madison County

McDuffie County

Monroe County

Mcergan County

Newton County

Oconee County

Oglethorpe County

Peach County

Putnam County

Richmond County

Rockdale County

Screven County

Taliaferro County

Taylor County

Twiggs County

Walton County

Warren County

Washington County

Wilkes County

Wilkinson County

District 003

Clayton County

DeKalb County

Fulton County

District 004

Banks County

Bartow County

Catoosa County

Chattooga County

Cherokee County

Dade County

Dawson County

Fannin County

Floyd County

App. 61

App. 62

Forsyth County

Franklin County

Gilmer County

Gordon County

Gwinnett County — [Tract Information Deleted]

* * *

Habersham County

Hall County

Hart County

Lumpkin County

Murray County

Pickens County

Rabun County

Stephens County

Towns County

Union County

Walker County

White County

Whitfield County

District 005

Carroll County

Cobb County

Coweta County

Douglas County

Fayette County

Haralson County

Harris County

Heard County

Henry County

Lamar County

Meriwether County

Muscogee County

Paulding County

Pike County

Polk County

Spalding County

Talbot County

App. 63

Troup County

Upson County

(d) The first members of the commission elected

under this Code section shall be elected thereto on the

Tuesday next following the first Monday in November,

2000, from Public Service Commission Districts 3 and 5,

shall take office on the first day of January immediately

following that election, and shall serve for terms of office

of six years and until the election and qualification of their

respective successors. Those members of the commission

elected thereto on the Tuesday next following the first

Monday in November, 2002, from Public Service Commis-

sion Districts 1 and 4 shall take office on the first day of

January immediately following that election and shall

serve for terms of office of six years and until the election

and qualification of their respective successors. The

member of the commission elected thereto on the Tuesday

next following the first Monday in November, 2004, from

Public Service Commission District 2 shall take office on

the first day of January immediately following that elec-

tion and shall serve for a term of office of six years and

until the election and qualification of his or her respective

successor. All future successors to members of the com-

mission whose terms of office are to expire shall be elected

at the state-wide general election immediately preceding

the expiration of such terms, shall take office on the first

day of January immediately following that election, and

shall serve for terms of office of six years.

(e) For purposes of this Code section:

(1) The terms “Tract” and “BG” (Block Group) shall

mean and describe the same geographical boundaries as

provided in the report of the Bureau of the Census for the

App. 64

United States decennial census of 2000 for the State of

Georgia. The separate numeric designations in a Tract

description which are underneath a “BG” heading shall

mean and describe individual Blocks within a Block Group

as provided in the report of the Bureau of the Census for

the United States decennial census of 2000 for the State of

Georgia.

(2) Except as otherwise provided in the description of

any Public Service Commission District, whenever the

description of any Public Service Commission District

refers to a named city, it shall mean the geographical

boundaries of that city as shown on the census maps for

the United States decennial census of 2000 for the State of

Georgia.

(3) Any part of the State of Georgia which is not

included in any Public Service Commission District

described in Subsection (c) of this Code section shall be

included within that district contiguous to such part which |

contains the least population according to the United

States decennial census of 2000 for the State of Georgia.

(4) Any part of the State of Georgia which is de-

scribed in subsection (c) of this Code section as being

included in a particular Public Service Commission Dis-

trict shall nevertheless not be included within such Public

Service Commission District if such part is not contiguous

to such Public Service Commission District. Such noncon-

tiguous part shall instead be included within that Public

Service Commission District contiguous to such part which

contains the least population according to the United

States decennial census of 2000 for the State of Georgia.

HISTORY: Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a;

Civil Code 1895, § 2185; Ga. L. 1906, p. 100, §§ 1-3; Ga. L.

App. 65

1907, p. 72, §1; Civil Code 1910, §§ 2615, 2616; Ga. L.

1922, p. 143, § 1; Code 1933, § 93-201; Ga. L. 1998, p.

1530, §§ 1, 2; Ga. L. 2002, p. 359, §§ 1, 2.

NOTES:

THE 1998 AMENDMENT, effective July 1, 1998, rewrote

this Code section.

THE 2002 AMENDMENT, effective April 11, 2002, re-

wrote the descriptions of Public Service Commission

Districts 1 through 5 following the colon at the end of the

introductory language in subsection (c) and added subsec-

tion (e).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.