Georgia's PSC Electoral System

This post provides a brief look at the unusual (and potentially unconstitutional) system Georgia uses to elect its Public Service Commission. The Public Service Commission is the five-member body charged with regulating the state's utilities. I begin by discussing the PSC and how its members are elected. I conclude by analyzing recent redistricting and pending legal challenges.

Overview

The PSC was established in 1879, initially to regulate railroads. This made Georgia "one of the first states" to have such a regulatory commission. Its jurisdiction slowly expanded over time to encompass telegraphs, shipping, and electrical utilities, among other industries. While initially a three-member board, in 1907, the number of members was increased to five. The Georgia state constitution gives a very brief summary of the PSC's role, leaving most of it to legislative discretion.

(a) There shall be a Public Service Commission for the regulation of utilities which shall consist of five members who shall be elected by the people...(b) The commission shall be vested with such jurisdiction, powers, and duties as provided by law. (c) The filling of vacancies and manner and time of election of members of the commission shall be as provided by law. - Georgia Constitution, Art. IV, § I, Para. I

Legislators therefore designed the electoral system used to select members. Before 2000, commissioners were elected statewide and could live in any area of the state. In 1998, legislators changed the law to divide the state into five districts for purposes of selecting members. Democrats, who held the majority in the legislature at the time, designed the law to decrease Republican representation on the board (subscription required to access link). Elections, however, were still held statewide. When Republicans took power just a few years later, they declined to change the law, as they could now redraw the districts to suit their own interests. The statewide method of elections gave them an additional advantage. This law remains in force today.

The Georgia Public Service Commission shall consist of five members to be elected as provided in this Code section...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... - O.C.G.A. 46-2-1(a)

In order to be elected as a member of the commission from a Public Service Commission District, a person shall 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 Commission District by the voters of Georgia shall continue to reside in that district during the person’s term of office, or that office shall thereupon become vacant. -  O.C.G.A. 46-2-1(b) 

In 2002, the state supreme court upheld the residency requirement in a legal challenge known as Cox v. Baker. That case turned on paragraph b (shown above), the length of residency. The court did not rule on whether it was legal for an election to take place statewide but eligibility be limited based on one's residence. 

This situation creates the unfairness at the heart of the system. Currently, persons wishing to serve on the PSC must run for the seat of the district they live in. For example, someone from Fulton County must run for District 3 and have lived in that district for 1 year prior to the election (not when they take office). But, all Georgians are eligible to vote in the District 3 race, which appears on the statewide general election ballot. That means someone living in Lowndes County (~250 miles from Fulton County) determines who District 3 is represented by despite living in District 1. I'm not an attorney, but this would appear to be a violation of the principle of "one person, one vote." No court has ever ruled on this aspect of PSC elections, however, and I'm unaware of any other government body in the U.S. which has such a system. (See below for two pending legal challenges).

Current Situation

There are two potential avenues where a constitutional challenge could be brought. The first turns on the system itself (see above). A more temporary fix revolves around imbalances created by recent redistricting, as discussed here. Two legal challenges are pending as well.

District Population Breakdown

Georgia PSC Districts as of 2022
(Courtesy: Georgia General Assembly via the Atlanta Journal-Constitution)

The above image shows the current districts passed by the General Assembly earlier this year. The table shows their population and deviation from an equal five-way split of the state. As you'll note, the PSC districts do not cross county lines.

District	Population	Deviation	Percentage Deviation
1	2,296,607	+154,225	+7.20%
2	1,992,622	-149,760	-6.99%
3	2,128,687	-13,695	-0.06%
4	2,149,362	+6,980	+0.03%
5	2,144,630	+2,248	+0.01%

At first glance, the populations seem relatively equal, but let's take a closer look at the percentage deviation. This is where it gets a little tricky. In general, state legislative districts are allowed a deviation of up to 10%. 10% isn't the absolute deviation shown above, however. It actually means a range of +/- 5%. Thus, facially, if the PSC is considered a legislative body, the deviations here are too large. It would be up to a court to decide if the PSC districts fell under such classification, however. No such case has been brought as of this writing.

Looking at the specific districts, this would be a relatively easy fix. Districts 1 and 2 have the largest difference between them and are adjacent to each other. For example, let's say we shift Bryan County and Johnson County from District 1 to District 2. Bryan County's population is 44,738, while Johnson County's is 9,189. This brings District 1's population to 2,242,680 and District 2's population to 2,046,549. As you see in the table below, this would bring both districts into compliance, though just barely.

District Breakdown if Adjusted Based on Above Hypothetical

District	Population	Deviation	Percentage Deviation
1	2,242,680	+100,298	+4.68%
2	2,046,549	-95,833	-4.47%
3	2,128,687	-13,695	-0.06%
4	2,149,362	+6,980	+0.03%
5	2,144,630	+2,248	+0.01%

Legal Challenges

There are also two legal challenges over the PSC electoral system at present.

The most prominent involves the District 2 race this year. Incumbent Tim Echols (R-Hoschton) is running for reelection, while Democrats nominated Patty Durand (D-Rockdale County). The challenge centers on Durand's eligibility. Just before the May primary, Secretary of State Brad Raffensperger (R-Johns Creek) disqualified Durand, saying she had not lived in the district long enough. Durand previously lived in Gwinnett County but moved to Rockdale County earlier this year. A judge quickly reinstated her on the ballot, but her case is still pending as of this date. Durand's argument revolves primarily around the redistricting earlier this year. An investigation by the Atlanta Journal-Constitution alleged that Echols had been instrumental in drawing Gwinnett County out of his district, citing text messages between Echols and another PSC member. Durand argues that these texts show proof that Echols sought to prevent her from being eligible to run against him. If the court disqualifies Durand, Democrats can select a replacement.

Democrats filed a second lawsuit in federal court, alleging that the entire system discriminates against African American voters. The lawsuit challenges the at-large method of elections. Filed in 2020, the case was not decided before elections that year. A trial occurred earlier this month, where the judge questioned whether the result of an all-Republican board could be blamed on racial discrimination rather than partisan preference. No timeline for a ruling has been set, though the state has until mid-August to finalize the ballot.

Conclusion

Of the two cases, Durand's appears slightly likelier to succeed, given she has already won in a preliminary hearing. Cox v. Baker (see above) applies here, however, so she will likely be disqualified barring a reversal of precedent. Though Democrats have a strong case in federal court, the judge, Steven Grimberg, is a Trump appointee who is likely to ignore the VRA-related concerns raised by Democrats. As such, it appears that the unfair system will stay in place for the time being. Georgia residents should thus turn to their legislators to rectify the situation, as judicial fixes appear unlikely.