The Eleventh Circuit is chipping away at what's left of the Voting Rights Act

Judge Elizabeth Branch, a Trump appointee, used a "novel" case involving Georgia's utility commission to further narrow an already cramped reading of the law.

A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit wrote new restrictions into the Voting Rights Act on Friday, in a ruling against Black voters challenging Georgia’s system of electing the five members of the Georgia Public Service Commission (PSC) through statewide elections.

The unanimous panel decision from the appeals court that hears cases out of Alabama, Florida, and Georgia reversed a lower court decision in favor of the challengers. The district court had found that Georgia’s current statewide, at-large method of electing the members of the PSC constituted illegal vote dilution under Section 2 of the Voting Rights Act and blocked the state from conducting the elections under that system.

The appeals court on Friday held that the federal law did not permit a court to order the legislature to change the method of election for the commissioners in this case because “Georgia’s chosen form of government for the PSC is afforded protection by federalism and our precedents.”

Judge Elizabeth Branch, a Trump appointee, focused her opinion on the novelty of the claim — repeatedly discussing how this would be “the first time ever,” as she wrote in italics, that a court issued such a ruling as to a statewide election — despite also holding that Georgia officials were wrong to argue that a statewide claim is not allowed under the Voting Rights Act.

Between that issue and the way in which the Eleventh Circuit addresses the proposed remedy in these voting rights cases (more on that to come), the ruling is a bit of a jumble — with troubling implications far outside of this utilities commission case.

Although the decision only directly affects the PSC elections, its reasoning further narrows an already cramped reading of the landmark law by the Eleventh Circuit. Friday’s ruling, if it stands, could have broad effects within the circuit — limiting the ability to bring statewide challenges under Section 2, further changing how and when the proposed remedy is examined to make proving claims more difficult, and expanding the ways in which states can defend against Section 2 “vote dilution” claims.

Branch was joined in Friday’s decision by Judge Britt Grant, another Trump appointee, and Judge Harvey Schlesinger, a George H.W. Bush appointee who is a senior district court judge in Florida sitting on the case by designation. The appeals court issued the decision at the end of the day on Friday, nearly a year after the judges heard arguments in the appeal and in the midst of what was for many people an ongoing Thanksgiving weekend.

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Diluting Gingles

Vote dilution claims under Section 2 of the Voting Rights Act, the U.S. Supreme Court reaffirmed in June, are judged by the Gingles test, based on a 1986 case, Thornburg v. Gingles.

Under the test, plaintiffs bringing vote dilution claims must first meet three preconditions — involving the compactness of the minority group in the jurisdiction and racial polarization in voting — to establish the possibility of their claim, after which the court considers several factors and decides whether, under the “totality of the circumstances,” the minority group has a diminished opportunity “to elect representatives of their choice.” The “totality of the circumstances” is assessed by looking at what are referred to as the nine “Senate factors” addressed in a Senate report on the 1982 Voting Rights Act amendments.

In August 2022, U.S. District Judge Steven Grimberg — another Trump appointee — applied the Gingles test to the Georgia plaintiffs’ claims and ruled after trial that the state’s “method of election” for the PSC — statewide elections for positions that, since 1998, have been district-based commissioners — “unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act of 1965 and must change.”

Friday’s decision from the Eleventh Circuit did not include any actual ruling or even analysis as to whether Black people’s votes are illegally diluted under that system. Instead, Branch’s opinion effectively ignored the voting rights part of the Voting Rights Act and Grimberg’s findings by focusing almost entirely on the proposed remedy in the case.

In past cases, the Eleventh Circuit already had limited the ability of a person to bring a Section 2 claim by asserting that a challenger must be able to put forth a viable remedy in order to meet the first precondition under the Gingles test — the part of the test that asks whether the minority group in question has sufficient numbers and is compact enough to be able to constitute a majority in a single-member district. As the court described its interpretation of the first precondition in a 2020 case: “This factor asks whether the court can fashion a remedy for a demonstrated abridgement.”

Here, the proposed remedy is splitting the commission’s elections into five single-member districts 25 years after the legislature had already split the commission into five districts — with residency requirements — but kept the elections statewide.

As even Branch acknowledged, Section 2 cases often “challenge multi-member, at-large districts,“ although she noted that the cases generally involve “governmental subunits” like a city council or school board. But, if vote dilution is found in those cases, she continued, “then the traditional remedy entails imposing a single-member districted system with some allocation of ‘majority-minority’ districts in which ‘a minority group composes a numerical, working majority of the voting-age population.’”

To hold that that proposed remedy is not allowed here, Branch kept hitting on the novelty of the statewide nature of the case (“To reiterate a critical point, plaintiffs’ proposed remedy asks us to wade into uncharted territory.“). Ultimately, though, the court had to get the case to the point where Branch could conclude that this proposed change would alter Georgia’s chosen form of government.

How required some work. The result is that, within the Eleventh Circuit, the Gingles test no longer really applies. Instead, a Branch-modified version of the test applies. She wrote:

The primary takeaway from [a] line of [Eleventh Circuit] precedent is that general principles of federalism undergird our decisions—as they must. … [W]hile the Fourteenth Amendment and VRA overcome state sovereignty in certain factual situations in the voting rights arena, we must remain mindful of state authority ….

Building on federalism, the second critical takeaway is that we must assess a plaintiff’s proposed remedy early and strongly consider the state’s interest in maintaining its form of government when making that assessment. … And we must consider “a state’s interest in maintaining the challenged system” when “determining whether the remedy a plaintiff seeks is a feasible alternative to the challenged electoral system.”

None of that is in the Gingles test, at least not in the determinative way used by the Eleventh Circuit. To the contrary, many of these concerns are properly addressed in the “totality of the circumstances” part of the Gingles test.

The Eleventh Circuit has now front-loaded a vote dilution case — in many instances almost entirely — with its broadened interpretation of the first precondition, resulting in countless traps for would-be challengers and defenses for those governments whose voting systems are challenged.

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That’s not all

Even all of that was not enough to reject the challengers’ proposed PSC remedy here.

Additionally, the court had to expand a series of Eleventh Circuit cases holding that subdividing judicial elections into single-member districts was not an appropriate Section 2 remedy in a way that would include the PSC. This, despite the fact that those cases all addressed the judicial function and judicial independence as a key element in the decision. To fit the PSC into this line of cases, Branch noted that the commission does exercise some “quasi-judicial” functions but held, in any event, that “the application of these decisions” — which Branch acknowledged all addressed judicial elections — “is not limited to judicial elections only.” Ah, OK.

Branch also expanded a prior understanding — even, it appears from their brief, from the lawyers for Georgia (see the last paragraph on page 58) — that assessing Georgia’s “chosen form of government” is primarily derived from the state’s Constitution. That was also Grimberg’s understanding, but, in Branch’s retelling, a state’s constitution and statutes are considered.

Importantly, Branch also sidestepped precedent that a district court’s decisions in a vote dilution case can only be overturned for “clear error” by asserting that many of Grimberg’s rulings constituted legal error, thus allowing the appeals court to review the matter anew.

Note that while Branch kept highlighting on the novelty of the statewide nature of the claim, there is no reason why these elements of the Eleventh Circuit’s decision — or even the front-loaded, remedy-linked federalism and “state’s interest” considerations — will be limited to Section 2 challenges to statewide elections.

Ultimately, though, none of these gymnastics would matter here if Georgia had no reasons to explain its PSC decisions. And, at trial — when the state is supposed to show those reasons — Georgia’s lawyers really fell down. As Grimberg wrote (when considering this in the “Senate factors” review):

Tricia Pridemore, the commission’s chair, became key to Branch’s effort to save the state’s defense. To do this, Branch appeared to more or less ignore the district court’s assessment of the evidence and the witnesses. Because trial court judges are the ones actually hearing testimony and reviewing the evidence in a case, appellate courts generally must defer to the trial judge’s findings on those matters — particularly when it comes to assessing a witness’s credibility.

At the district court, Grimberg concluded of Pridemore’s testimony regarding the reasons for statewide PSC elections, “[T]he Court finds Pridemore’s testimony on these points unpersuasive … because they were not tethered to any objective data and they lacked foundation entirely. In fact, it appeared to the Court based on its close observation of Pridemore’s testimony at trial that the justifications she gave for the PSC’s electoral structure were developed in preparation for her testimony and were not preconceived.”

In Branch’s opinion for the Eleventh Circuit, however, Pridemore is front and center, used repeatedly to justify the ruling. “The PSC’s statewide electoral structure was deliberately chosen to advance policy interests that the Georgia General Assembly deemed important,” Branch wrote, citing extensively (including with a blockquote) to Pridemore’s testimony — and not much else.

Branch did not even address the district court’s conclusions about Pridemore’s opinions at that point. Later, though, as an aside in a footnote, Branch stated not that Grimberg had many any error at all in his assessment about Pridemore, but rather that, “[W]e disagree” about what “forms of evidence would be more compelling or instructive.”

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In conclusion

With all of that done — and never having addressed the issue of whether Black Georgians’ votes are diluted in elections for the Georgia Public Services Commission — Branch summarized the ruling and conclusion thusly:

[B]ecause it is clear to us that plaintiffs’ proposed remedy is a unique application of Section 2 that would upset Georgia’s policy interests that are afforded protection by federalism and our precedents, we hold that plaintiffs have not proposed a viable remedy and have failed to satisfy Gingles’s first precondition. … Thus, we conclude that the district court made a mistake of law, and we reverse.

The decision was the second time this past week that a federal appeals court panel consisting of three Republican appointees issued a decision seeking to impose new limits on the reach of the Voting Rights Act, with Friday’s decision following the U.S. Court of Appeals for the Eighth Circuit’s earlier ruling barring private plaintiffs’ lawsuits altogether under Section 2.

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ER abortion-care case is coming to the shadow docket

Earlier this week, the far-right Alliance Defending Freedom announced this filing that I covered in the note below. It is yet to appear on the Supreme Court docket, but is likely just delayed in being processed and accepted for filing because of the holiday weekend.

I’ll have more here at Law Dork as the request moves forward at the court.