Canceled Elections Leave Georgia’s Utility Commission in Anti-Democratic Limbo

Patty Durand followed a pretty typical path into local politics. She thought her representative on the Georgia Public Service Commission—the body tasked with regulating gas, electricity, and telecommunications in the state—wasn’t doing enough for ratepayers who faced mounting monthly utility bills. Durand, who worked in the energy sector, says that after meeting with her representative on the commission, Tim Echols, she became convinced that he wasn’t doing the research necessary to understand the rate increases he regularly approved for power companies. So, in July 2021, she launched a campaign to replace him in the 2022 midterms. 

“I started looking around for other candidates,” Durand said, “Then I thought, ‘Nobody’s gonna say and do what I want, I’d better just run myself.’ So that’s what I did.”

But nearly two years after Durand entered the race, no election has taken place. Her race against Echols, a Republican incumbent, was canceled last year after a federal judge ruled that the state’s system for electing utility commissioners violates the federal Voting Rights Act. Echols remains in office to this day, many months after his term was set to expire, as state appeals have continued to delay any new utility commission elections. 

A year before Durand filed as a candidate, environmental justice and voting rights advocates filed a federal lawsuit against the state challenging how representatives on the Georgia Public Service Commission (PSC) are elected in the first place. While commissioners ostensibly represent and are required to live within five distinct districts, elections for these seats are held at-large—meaning voters statewide get to weigh in on elections for each district, not just those who live there.

Brionté McCorkle, executive director of the Atlanta-based Georgia Conservation Voters, and one of the main plaintiffs in the suit, argued that this system dilutes the power of Black voters to elect the candidate of their choice, in violation of Section 2 of the Voting Rights Act. Her lawsuit, which sought district-wide voting for PSC seats and a majority-Black PSC district around the Atlanta region, cited a long history of this voting structure being used to disenfranchise Black Georgians, dating back to 1906, when commission elections were first changed to at-large by a governor who ran on an explicit platform of disenfranchising African Americans. 

McCorkle tried educating and organizing voters to make their voices heard on the utility commission, but eventually realized that this wasn’t a winning strategy for Black voters in District 3, which covers Atlanta and the surrounding metro area. The district, like the commission at large, has for the past 30 years been represented by mostly white Republican men, despite the tendency of voters in that district to support Democrats in other races.

“They don’t feel accountable to their voters,” McCorkle said. “And that’s what I started to look at. Why do they feel like they can just ignore what the people who elect them are saying they want? Then I started looking at the election structure.”

After a five-day trial last summer, a federal judge sided with the plaintiffs and ruled in August 2022 that the commission must end at-large voting for PSC representatives. Elections for two commission seats that were slated to occur in November were put on hold, including the one Durand, a Democrat who is white, was running in. By that point, however, her campaign had already been thrown into chaos—GOP lawmakers gerrymandered her out of the Athens-area district where she had sought to challenge the incumbent. 

As it has unfolded, the conflict over utility commission elections in Georgia has shone a harsh light on a government body that often goes unnoticed by voters, despite its everyday impact on their lives and budgets. The now years-long fight for equal representation on the PSC also highlights the anti-democratic lurch of these state oversight commissions, from at-large elections and gerrymandered districts diluting the voting power of minority communities to a larger trend of states removing voters from the equation in lieu of governor-appointed commissioners.     

---

Among other duties, PSC commissioners are tasked with regulating Georgia Power, the utility company that generates and supplies electricity to more than 2.6 million customers across the state. In addition to approving increases to the rates customers pay for their energy, the commission also has oversight over the company’s capital projects, including a $30 billion expansion to Plant Vogtle, a nuclear power plant. Since it was first approved in 2009, the expansion project has drawn widespread criticism for its exorbitant construction costs, which are then passed on to consumers, as well as potential environmental and health hazards stemming from radioactive waste. 

The power of the PSC to affect people’s everyday lives became glaringly apparent in March 2020 when commissioners responded to the COVID-19 pandemic by issuing a temporary moratorium on utility shutoffs for people who suddenly couldn’t pay their bills. But the relief was short-lived; months later, in July of that year, commissioners voted against extending the moratorium.

“They have a lot of oversight over real, kitchen-table [issues], everyday, lived experience in Georgia,” McCorkle said. “You get a ton of coverage over the Senate, and the governor, and the president, and then things like who’s actually making the decision about the power bill you have to pay every month, [people] don’t know anything about.”

Only two Black members have ever served on the commission in its entire 144-year history, both of whom were initially appointed to their seats by governors. David Burgess was both the first Black member and the last Democrat to sit on the commission, and was appointed in 1999. He won his election to retain the seat in 2000, but was defeated by a white Republican in 2006. Fitz Johnson, a Black Republican representing District 3, was appointed to the commission in 2021, after McCorkle and other activists had filed their lawsuit challenging the structure of PSC elections. 

McCorkle was joined in her lawsuit by several other Black residents of District 3, including James Woodall, then-president of the Georgia NAACP. They argued that while Black voters in the district have tried repeatedly to vote out Republican incumbents, their votes were outnumbered by white voters in the rest of the state. Black residents are indeed a voting minority in Georgia; they make up roughly 33 percent of voters across the state, and are regularly outnumbered by white voters in other statewide races. But in areas where they do have concentrated power, the plaintiffs argued, Black voters should have been able to elect the candidate of their choice, but were unable to do so because of at-large elections. During the trial, the court heard from Lindy Miller, a Democrat who ran for the District 3 seat the last time it went on the general election ballot in 2018 and lost despite winning a majority of votes in her district. 

“It’s not about partisanship, we’re upset because the preferred candidate of Black voters can’t win, regardless of who that preferred candidate is,” McCorkle said. “It doesn’t matter if it’s a Democrat, if it’s a Libertarian, [these voters] just don’t want the incumbent who has been approving bill increases to stay in that seat. What we’ve seen is that the preferred candidate cannot win in this election structure because of the vote dilution effect of the voters in the other parts of the state.”

In early 2022, while the lawsuit from activists was still winding through the courts, Georgia lawmakers redrew the PSC district lines to ensure the commission would retain a GOP supermajority even if federal judges forced the state to end at-large voting.

McCorkle says the gerrymandering was a direct response to their lawsuit. 

“[The redistricting committee] admitted that they were concerned about our ability to win this case,” she told Bolts. “So they drew these new districts intentionally to make one district less competitive and better for Republicans. It was just case-in-point gerrymandering.”

Lawmakers also gerrymandered the maps to target one candidate in particular: Durand, who was drawn out of the district she had been campaigning for. She then filed her own lawsuit against the secretary of state appealing her disqualification from the ballot, and evidence in the case revealed PSC commissioners—including Echols, whom she was campaigning against—had colluded to draw her out of the district. (While PSC elections were at-large, they still required members to file and live in certain districts). A state court judge sided with Durand and allowed her to remain on the ballot for the seat, writing in her ruling, “The record here contains substantial evidence that District 2 was drawn to exclude Ms. Durand, specifically, as a candidate.” 

The win was short-lived: Hours later, on the same day as that state court ruling allowing Durand to stay on the ballot, the U.S. Supreme Court upheld a separate federal court ruling in favor of McCorkle’s lawsuit challenging at-large districts, which blocked those races from appearing on the midterm election ballot.

The state immediately filed an emergency injunction, pending an appeal, to try to get the PSC races back on the November ballot, but then backtracked. Since then, no election has been held for the District 2 and 3 seats, whose representatives continue to make decisions on the commission despite being elected to terms that were supposed to end in January 2023. The episode adds to the list of canceled elections that Georgia has experienced in recent years. 

“We’ve just been in a gray area,” McCorkle said. “And the way that the statute was written that created the public service commission races, it says the commissioners are allowed to serve until their successor is elected. So that means these folks are just sitting in these seats—basically squatting.” 

Durand, who wasn’t able to run in November, has a similarly ambivalent feeling about how things turned out. 

“At first I was really furious because I’d been running my campaign for so long, we’d been working so hard, we were 80 days away from the vote,” Durand said. She says she was hoping to capture many of the voters who turned out for Stacey Abrams in the gubernatorial race, but realized once Abrams lost, she likely would have too. 

“The tiny silver lining is that I get to run again.” 

---

The federal court ruling blocking at-large elections for Georgia’s utility commission was groundbreaking for applying an argument about vote dilution to a statewide elected body as opposed to smaller jurisdictions like cities or townships, where such voting rights battles more commonly occur. 

But barriers to equal representation and democratic access around regulatory oversight bodies are hardly isolated to Georgia. In 2020, New Mexico voters amended its constitution to switch its public utility commission from an elected body to a governor-appointed one, eliminating a majority-Native district that routinely elected Native representatives to the public utility commission. (Several Native nonprofits later sued over the change, but the New Mexico Supreme Court ruled against them.) 

New Mexico follows a larger trend of states moving away from elected public utility commissions, which have slowly disappeared over the past century, according to research by legal scholar and frequent Bolts contributor Quinn Yeargain. Today, just 11 states have elected public utility commissions, down from roughly half of states at the start of the 20th century. Among these states with elected commissions, representing roughly 66 million Americans, most elections occur statewide. But where districts do exist, they are regularly subjected to gerrymandering without much legal pushback, according to Yeargain––often flying under the radar of legislators, activists, and everyday voters. For example, Democratic lawmakers in Montana objected to newly-drawn utility commission districts that heavily favor Republicans, but the map ultimately passed the legislature this past April. 

All of this has meant that, even when elected, commissioners often serve the interests of the companies they’re meant to regulate, says Caroline Spears, executive director of Climate Cabinet Action, and advocacy group that supports political candidates based on their climate action policies. 

“Usually the biggest and sometimes only funder of these races are the utilities that they regulate directly,” Spears said. “The ability of utility [companies] to put a bunch of money into politics, and then recoup all of their costs by just charging their ratepayers for it—it’s just really an unlimited pot of money. And that ability is alive and well whether the public service commission is elected or not.” 

Because these commissions have such direct control over the way energy companies conduct their business, many aggressively lobby commissioners—as well as the politicians who appoint them—to achieve their desired policy outcome, from approving major capital expenditures for new projects to continuing to invest in fossil fuels like coal and natural gas over clean energy technologies like wind and solar.  

“From a climate and clean energy perspective, public utility commissions couldn’t be more important,” Spears said. “They can set 100 percent clean energy goals and decide how much, and how fast, clean energy like solar and wind are added to the grid. When monopoly utilities try to block wind and solar, we need our public utility commissioners to fight back and build the clean energy economy of the future, not squash the market.” 

In Georgia, this has all come to a head in the debate over the expansion of Plant Vogtle, which is currently $17 billion over budget and seven years behind schedule. The ballooning costs have meant that Georgia Power ratepayers have already paid an additional $913 in advance charges, and are expected to see $3.78 added to their monthly power bills once the plant is up and running, although recent estimates conducted by PSC staff put that additional monthly cost much higher at $17.20 per month for the first five years of the plant’s operation. Still existing commissioners, including Echols, who has been shown to have ties to energy industry execs, have maintained their support for the expansion plans. 

Such critical decisions are a major reason why Durand, McCorkle, and others feel an urgency to hold new PSC elections. Echols and Johnson, the District 2 and 3 incumbents who were supposed to face challengers at the ballot box last year, can remain active and voting members on the commission until a final ruling in the lawsuit McCorkle filed three years ago, which is currently pending at the 11th U.S Circuit Court of Appeals.

“There are serious public policy implications of two commissioners voting on billions of dollars of rate increases whose terms expired,” Durand said. “Echols and Johnson should not be voting.”

Observers believe that the ultimate decision in the lawsuit over at-large PSC elections could be influenced by the Supreme Court’s June 8 ruling in Allen v. Milligan, when the court surprised many by upholding a key section of the Voting Rights Act and striking down racially gerrymandered district maps in Alabama. McCorkle hopes this precedent will soon lead to an appeals court ruling supporting their case. But even then, further appeals, possibly even to the Supreme Court, could take years to fully resolve, says Bryan L. Sells, the lead lawyer for the plaintiffs.

“There’s a really good chance that whichever way the 11th Circuit panel rules, the losing side will try to seek further review,” Sells said. “These cases take forever.”

In the meantime, the path forward for PSC elections isn’t clear either.  

“If there is a new election, are there new rules? Old rules? Do we get new districts? What is the new structure gonna be if we do get the ruling upheld?” McCorkle said. “It’s just an endless flow chart of possibilities at this point.”

Theoretically, there is nothing stopping the Georgia legislature from redesigning the races according to the original federal district court ruling, but they have not taken any action while the appeal is pending. So for now, the elections remain in limbo. 

Even though this effort to make the PSC elections more fair in the long run has had the effect—for now—of halting them entirely, McCorkle has no regrets. She sees this fight over one arcane corner of government as part of a larger continuum, extending from Black voters in Georgia’s past fighting for equal rights and representation to a younger generation of voters fighting for sustainable energy in a rapidly changing climate. 

“It’s all very deeply connected. Because who’s hurt? It’s this more diverse wave of voters and younger voters who are inheriting the country and the planet,” McCorckle said. “Because we’re inheriting it, we have a greater stake in it. We should be able to exercise our right to elect leaders who we think will do the right thing.”

Correction: An earlier version of this story misstated the year the commission first approved the Plant Vogtle expansion. This story has also been updated with a PSC estimate of added monthly costs due to the expansion.