Emergency Motion in Georgia Public Service Commission Appeal

USCA11 Case: 22-12593 Date Filed: 08/08/2022 Page: 1 of 30
No. 22-12593
In the
United States Court of Appeals
for the Eleventh Circuit
RICHARD ROSE, BRIONTÉ MCCORKLE, WANDA MOSLEY,

and JAMES WOODALL,
Plaintiffs-Appellees,
v.
BRAD RAFFENSPERGER,
in his official capacity as Secretary of State of Georgia,
Defendant-Appellant.
On Appeal from the United States District Court for the

Northern District of Georgia, Atlanta Division.
No. 1:20-cv-02921-SDG — Steven D. Grimberg, Judge
EMERGENCY MOTION TO STAY INJUNCTION

PENDING APPEAL
Christopher M. Carr Bryan P. Tyson

Attorney General Diane F. LaRoss
Bryan K. Webb Bryan F. Jacoutot
Deputy Attorney General Taylor English Duma LLP
Russell D. Willard
1600 Parkwood Cir., Suite 200
Senior Assistant Attorney General
Charlene McGowan Atlanta, GA 30339
Assistant Attorney General Telephone: 678-336-7249
State Law Department
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Counsel for Defendant-Appellant Brad Raffensperger
Richard Rose, et al. v. Raffensperger, No. 22-12593
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Eleventh Circuit Rules 26.1-1 through 26.1-3,
counsel for Defendant-Appellant hereby certifies that the below is
a complete list of all trial judges, attorneys, persons, associations
of persons, firms, partnerships, or corporations that have an
interest in the outcome of this appeal.
1. Bartlit Beck LLP: Counsel for Plaintiffs
2. Lori Beranek: Counsel for Amicus in underlying case
3. Christopher Carr: Counsel for Defendant
4. Kristen Clarke: Counsel for Amicus in underlying case
5. Kurt R. Erskine: Counsel for Amicus in underlying case
6. Georgia Department of Law: Counsel for Defendant
7. Steven D. Grimberg: District Judge
8. T. Christian Herren, Jr.: Counsel for Amicus in underlying
case
9. Aileen Bell Hughes: Counsel for Amicus in underlying case
10. Bryan F. Jacoutot: Counsel for Defendant
11. Pamela S. Karlan: Counsel for Amicus in underlying case
12. Diane LaRoss: Counsel for Defendant
C1 of 3
13. Law Office of Bryan L. Sells, LLC: Counsel for Plaintiffs
14. Nicolas Martinez: Counsel for Plaintiffs
15. Brionté McCorkle: Plaintiff
16. Charlene McGowan: Counsel for Defendant
17. Timothy F. Mellett: Counsel for Amicus in underlying case
18. Wesley Morrissette: Counsel for Plaintiffs
19. Wanda Mosley: Plaintiff
20. Stephen J. Petrany: Counsel for Defendant
21. Brad Raffensperger, in his official capacity as Secretary of
State of Georgia: Defendant
22. Richard Rose: Plaintiff
23. Bryan L. Sells: Counsel for Plaintiffs
24. Janie Allison (Jaye) Sitton: Counsel for Amicus in
underlying case
25. Taylor English Duma LLP: Counsel for Defendant
26. Bryan P. Tyson: Counsel for Defendant
27. U.S. Department of Justice: Amicus in underlying case
28. Bryan K. Webb: Counsel for Defendant
29. Russell D. Willard: Counsel for Defendant
C2 of 3
30. James “Major” Woodall: Plaintiff
CORPORATE DISCLOSURE STATEMENT
Counsel for Appellant certifies that Appellant is an
individual, sued in his official capacities as a representative of a
State government entity. Counsel for Appellant further certifies
that no publicly traded company or corporation has an interest in
the outcome of the case or appeal.
Respectfully submitted this 8th day of August, 2022.
/s/ Bryan P. Tyson

Bryan P. Tyson
Counsel for Defendant-Appellant Brad

Raffensperger
C3 of 3
TABLE OF CONTENTS
Page
Certificate of Interested Persons ................................................... C1
Corporate Disclosure Statement ................................................... C3
Table of Authorities ........................................................................ iii
INTRODUCTION ............................................................................ 2
Statement ......................................................................................... 3
A. Statutory framework. ............................................................ 3
B. Relevant proceedings below. ................................................. 4
1. Plaintiffs’ claims. ............................................................. 4
2. Evidence at trial. ............................................................. 4
3. Georgia’s election calendar.............................................. 6
Argument ......................................................................................... 6
I. Structure of claims under Section 2 of the Voting Rights

Act. ........................................................................................ 7
II. Application of the Nken factors warrants a stay of the

district court order pending appeal. ..................................... 8
A. The Secretary is likely to succeed on the merits. ........... 8
1. The district court erred by not first certifying the

interpretive question to the Georgia Supreme Court.
8
2. The district court erred in weighing evidence of

partisan voter behavior............................................ 12
3. The district court erred by ruling too close to an

election to obtain effective appellate review. .......... 16
i
TABLE OF CONTENTS
(continued)
Page
B. The Secretary will suffer irreparable injury absent a

stay pending appeal....................................................... 17
C. Plaintiffs will not suffer irreparable injury. ................. 17
D. The public interest favors a stay pending appeal. ........ 18
Conclusion ...................................................................................... 19
ii
TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018)........................................................................... 20
Brooks v. Miller,
158 F. 3d 1230 (11th Cir. 1998) .............................................................. 9
Burton v. City of Belle Glade,

178 F. 3d 1175 (11th Cir. 1999) ........................................................ 9, 10
City of Boerne v. Flores,

521 U.S. 507 (1997)............................................................................... 16
Cox v. Barber,
275 Ga. 415 (2002) ................................................................................ 13
Davis v. Chiles,
139 F. 3d 1414 (11th Cir. 1998) ............................................................ 12
Greater Birmingham Ministries v. Sec’y of Ala.,

992 F. 3d 1299 (11th Cir. 2021) ...................................................... 16, 18
Hand v. Scott,
888 F. 3d 1206 (11th Cir. 2018) ........................................................ 7, 20
Holder v. Hall,
512 U.S. 874 (1994)......................................................................... 11, 17
Johnson v. De Grandy,
512 U.S. 997 (1994)........................................................................... 9, 18
Johnson v. DeSoto Cnty. Bd. of Comm’rs,

204 F. 3d 1335 (11th Cir. 2000) .............................................................. 8
Johnson v. Hamrick,
296 F. 3d 1065 (11th Cir. 2002) .............................................................. 7
iii
Jones v. Dillard’s, Inc.,

331 F. 3d 1259 (11th Cir. 2003) ............................................................ 14
League of United Latin Am. Citizens v. Clements,

999 F. 2d 831 (5th Cir. 1993)................................................................ 17
Moreno v. Nationwide Insur. Co.,

105 F. 3d 1358 (11th Cir. 1997) ............................................................ 14
Negron v. City of Miami Beach, Fla.,

113 F. 3d 1563 (11th Cir. 1997) .............................................................. 9
New Ga. Project v. Raffensperger,

976 F. 3d 1278 (11th Cir. 2020) ...................................................... 20, 22
Nipper v. Smith,
39 F. 3d 1494 (11th Cir. 1994) ...................................................... passim
Nken v. Holder,
556 U.S. 418 (2009)........................................................................... 7, 21
NW Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 (2009)............................................................................... 11
Purcell v. Gonzalez,
549 U.S. 1 (2006)................................................................................... 19
Solomon v. Liberty County,

221 F. 3d 1218 (11th Cir. 2000) ...................................................... 16, 17
Southern Christian Leadership Conference v. Sessions,

56 F. 3d 1281 (11th Cir. 1995) .............................................................. 12
Tamimi Trail Tours, Inc. v. Ga. Pub. Serv. Comm’n,

213 Ga. 418 (1957) .................................................................................. 3
Thornburg v. Gingles,
478 U.S. 30 (1986)............................................................................... 7, 9
Veasey v. Abbott,
870 F. 3d 387 (5th Cir. 2017) ................................................................ 21
iv
Wright v. Sumter Cty. Bd. of Elections & Registration,

979 F. 3d 1282 (11th Cir. 2020) ............................................................ 10
Statutes
52 U.S.C. § 10301(a) ............................................................................ 7, 15
52 U.S.C. § 10301(b) .................................................................................. 7
GA. CONST. Art. VI, Sec. VI, Par. I. ......................................................... 11
GA. CONST., Art. IV, Sec. IV, Par. III ........................................................ 3
Rules
Eleventh Circuit Rule 27-1(b) ................................................................... 1
Fed. R. App. P. 8(a)(2)(A)(i) ....................................................................... 6
v
In the
United States Court of Appeals
for the Eleventh Circuit
RICHARD ROSE, et al.,

Plaintiffs,
v.
BRAD RAFFENSPERGER,
Defendant-Appellant.
On Appeal from the United States District Court for the

Northern District of Georgia, Atlanta Division.
No. 1:20-cv-02921-SDG — Steven D. Grimberg, Judge
EMERGENCY MOTION TO STAY INJUNCTION PENDING

APPEAL
Appellant Brad Raffensperger, in his official capacity as Secretary

of State, moves this Court on an emergency basis to stay, pending
appeal, the permanent injunction entered by the district court on
August 5, 2022, enjoining the Secretary from preparing ballots and
holding elections for Districts 2 and 3 of the Public Service Commission
in the November 8, 2022 election.

This is an emergency motion under Eleventh Circuit Rule 27-1(b)
because (1) the motion will be moot if a ruling is not obtained by Friday,
August 12, 2022; and (2) this motion is being filed the next business day
1
after the ruling by the district court following a trial on the merits.
Order and Opinion, attached as Ex. A (“Order”), p. 61. Copies of this
motion and the accompanying papers are being provided to opposing

counsel by email.
INTRODUCTION
Utility regulation in Georgia is handled by five members of the
Georgia Public Service Commission, who have been elected statewide

for more than 100 years. In this case, more than 55 years after the
Voting Rights Act was passed, the district court determined for the first
time that Georgia’s chosen method of electing utility regulators harms
Black voters in Georgia and prohibited the State of Georgia from ever
electing its utility regulators on a statewide basis.
In reaching that conclusion, the district court improperly weighed

the evidence. The district court interpreted provisions of the Georgia
Constitution regarding the election of Public Service Commissioners for
the first time without certifying the question to the Georgia Supreme
Court for resolution. It also found that evidence of partisan (as opposed
to racial) voting behavior among Black and white voters in Georgia was
not relevant to whether the vote dilution it found was “on account of
race or color.” It also found that, despite a lack of evidence of racial
appeals in campaigns and a lack of evidence of unresponsiveness of
current Commissioners to the needs of Black Georgians, the Senate
2
factors weighed in favor of Plaintiffs, because it weighed the racially

polarized voting factor heavily, and did not allow sufficient time for
appellate review.
The Secretary seeks this Court’s intervention to allow it to
continue holding its elections for Commissioners until the significant
issues raised by the district court’s opinion can be resolved by this

Court.
STATEMENT
A. Statutory framework.
In Georgia, the Public Service Commission ensures the safety,
reliability, and affordability of utilities. Order, p. 7. In so doing, it sets

rates for residential, commercial, and industrial customers. Id. It also
holds hearings, hears from witnesses, makes evidentiary rulings, and
weighs testimony about the impact of its decisions, that ultimately

affect all ratepayers in Georgia. Id. at 8. It functions as both a quasi-
legislative and a quasi-judicial body. Id. (citing Tamimi Trail Tours,
Inc. v. Ga. Pub. Serv. Comm’n, 213 Ga. 418, 428 (1957)).
The Commission is created by the Georgia Constitution and
Commissioners “shall be elected by the people.” GA. CONST., Art. IV,
Sec. IV, Par. III. Since 1906, Commissioners have been elected on a
statewide basis. Order, p. 4.
3
B. Relevant proceedings below.
1. Plaintiffs’ claims.
Plaintiffs filed this case on July 14, 2020, asserting that the
statewide method of electing Commissioners was an “at-large” method

of election that illegally diluted minority voting strength on account of
race. Ex. B, [Doc. 1, p. 10]. After discovery, the district court granted
summary judgment to Plaintiffs on the Gingles factors, including

polarized voting, but specifically found it would hear evidence regarding
the impact of partisanship on polarization during the trial. Ex. C, [Doc.
97, pp. 28-29].

The district court held a five-day bench trial before ruling in favor
of Plaintiffs on August 5, 2022.
2. Evidence at trial.
During the trial, all parties agreed that voting in Georgia is
polarized, but differed over the causes of that polarization. Order, p. 32.
Plaintiffs presented statistical evidence that the polarization was racial
in nature, but their experts did not consider any causal factors. The
Secretary presented evidence that the polarization was better explained
by partisanship, given the lack of any difference in the behavior of
Black and white voters when the race of the candidates varied.
The district court found the other Senate factors were mixed. It
addressed Georgia’s history of discrimination (Factor 1) in a single
4
paragraph, finding it was satisfied without considering whether more

recent examples of discrimination were required. Order, p. 42. It found
that Georgia uses election practices that enhance opportunities for

discrimination (Factor 3) and that Black Georgians bear the effects of
discrimination (Factor 5). Order, pp. 44, 48. It also found that the
State’s interest weighed in favor of Plaintiffs despite evidence from the

Secretary on the importance of linkage between jurisdiction of an
elected official’s decisions (rate decisions affect all ratepayers) and the
electorate (Factor 9). Order, pp. 53-54.

The district court found other factors weighed in favor of the
Secretary. Specifically, Georgia does not use a candidate slating process
(Factor 4), racial appeals are not present in PSC elections (Factor 6),
and Plaintiffs did not provide sufficient evidence of a lack of
responsiveness of Commissioners to the needs of Black Georgians
(Factor 8). Order, pp. 46, 49, 51.
The district court, relying on the nature of the polarization (Factor
2) and extent of election of Black officials (Factor 7), which it
determined were the “most important” Senate factors, found that
Georgia’s statewide method of electing utility regulators diluted Black
voting strength in violation of Section 2. Order, p. 54.
Finally, the court interpreted the provisions of the Georgia

Constitution for the first time, determining that statewide elections
5
were only required by statute and not any constitutional provision.

Order, pp. 59-60.
3. Georgia’s election calendar.

Time is of the essence in the resolution of this motion because the
district court’s order cancels elections for two districts of the
Commission that are currently set to take place in November 2022,
after primaries in May. Order, p. 60. The decision about whether those
races will appear on November’s ballot must be made by this Friday,
August 12, 2022.1 Order, p. 61.
ARGUMENT
A stay pending appeal should be granted if (1) the moving party is
likely to succeed on the merits; (2) the moving party will be irreparably
injured absent a stay; (3) a stay will not substantially injure the other
parties interested in the proceeding; and (4) the public interest favors a
stay. Hand v. Scott, 888 F. 3d 1206, 1207 (11th Cir. 2018) (citing Nken
v. Holder, 556 U.S. 418, 426 (2009)). “The first two factors of the
traditional standard are the most critical.” Nken, 556 U.S. at 434.
1 To the extent a ruling on a motion to stay from the district court would
ordinarily be required before this motion, the Secretary submits that
such would be futile and impractical given the district court’s
awareness of the election timeline, and the four-day timeline for
resolving the question raised by this motion. Fed. R. App. P.
8(a)(2)(A)(i).
6
A district court’s findings in a Section 2 case are reviewed for clear

error. Johnson v. Hamrick, 296 F. 3d 1065, 1074 (11th Cir. 2002). That
review “does not inhibit an appellate court’s power to correct errors of

law, including those that may infect a so-called mixed finding of law
and fact, or a finding of fact that is predicated on a misunderstanding of
the governing rule of law.” Id. (quoting Thornburg v. Gingles, 478 U.S.
30, 79 (1986)).
I. Structure of claims under Section 2 of the Voting Rights

Act.
Section 2 of the Voting Rights Act prohibits jurisdictions from
diluting the strength of minority voters through a “standard, practice,
or procedure” “which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color.” 52

U.S.C. § 10301(a). Proof of illegal vote dilution is established through a
“totality of the circumstances” analysis. 52 U.S.C. § 10301(b).
To prove a violation of Section 2 in a vote-dilution case, a plaintiff

bears the burden of first proving each of the three Gingles
preconditions: “(1) that the minority group is ‘sufficiently large and
geographically compact to constitute a majority in a single-member

district’; (2) that the minority group is ‘politically cohesive’; and (3) that
sufficient racial bloc voting exists such that the white majority usually
defeats the minority’s preferred candidate.” Nipper v. Smith, 39 F. 3d
7
1494, 1510 (11th Cir. 1994) (Tjoflat, J.). Failure to establish one of the
Gingles preconditions is fatal to a Section 2 claim because each of the
three prongs must be met. Johnson v. DeSoto Cnty. Bd. of Comm’rs, 204
F. 3d 1335, 1343 (11th Cir. 2000); Burton v. City of Belle Glade, 178 F.
3d 1175, 1199 (11th Cir. 1999); Brooks v. Miller, 158 F. 3d 1230, 1240
(11th Cir. 1998); Negron v. City of Miami Beach, Fla., 113 F. 3d 1563,
1567 (11th Cir. 1997).
After a plaintiff establishes the three preconditions, a court then
reviews the “Senate Factors” to assess the totality of the circumstances.

Nipper, 39 F. 3d at 1512; Gingles, 478 U.S. at 79; Johnson v. De
Grandy, 512 U.S. 997, 1011 (1994).
II. Application of the Nken factors warrants a stay of the

district court order pending appeal.
A. The Secretary is likely to succeed on the merits.
1. The district court erred by not first certifying the

interpretive question to the Georgia Supreme
Court.
This Court prohibits the separation of the first prong of liability
under Gingles and the potential remedy. Nipper, 39 F. 3d at 1530–31;
see also Burton, 178 F. 3d at 1199 (“We have repeatedly construed the
first Gingles factor as requiring a plaintiff to demonstrate the existence
of a proper remedy.”); accord Wright v. Sumter Cty. Bd. of Elections &
Registration, 979 F. 3d 1282, 1302 (11th Cir. 2020). Whatever proposed
8
remedy is used to demonstrate a violation of the first prong of Gingles

must also be a remedy that can be imposed by the Court. Nipper, 39 F.
3d at 1530–31.
In finding that Plaintiffs’ proposed remedy was a remedy it could
order, the district court made two mistakes. First, it interfered with
Georgia’s decision about how to conduct utility regulation. Second, it

interpreted the Georgia Constitution without certifying the question of
state law to the Georgia Supreme Court.
Evidence at trial indicated that at least 12 states elect their utility

regulators. Under the district court’s ruling, only the State of Georgia is
prohibited from electing its utility regulators on a statewide basis—
interfering with the state’s chosen form of government. See NW Austin

Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009) (discussing
equal sovereignty of states). While the district court believed Section 2
permits such an interference, “[i]nterfering with the form of
government, therefore, might appear to involve a greater intrusion on
state sovereignty [than the size of a government body].” Holder v. Hall,
512 U.S. 874, 916 (1994) (Thomas, J., concurring). And “[i]mplicit in
th[e] first Gingles requirement is a limitation on the ability of a federal
court to abolish a particular form of government and to use its
imagination to fashion a new system.” Nipper, 39 F. 3d at 1531.
9
While many of the decisions from this Court involving the

interplay of federal courts deciding governmental structure in Section 2
cases have involved judicial elections,2 similar concerns exist here with
the quasi-judicial utility regulator of the Public Service Commission.
Unlike legislators, Commissioners have wide enforcement authority and
act akin to judges at crucial moments, using specialized knowledge in

utility regulation that affect all ratepayers in the state. Order, pp. 21-
23.
The district court dismissed these concerns by determining that it

had authority over the political processes in the state and did not
sufficiently credit the linkage interests of connecting the officials’
jurisdiction (statewide decisions affect all ratepayers) with their

electoral base. Order, pp. 53-55. This decision places a federal court as
the sole arbiter of how Georgia may elect utility regulators in the state,
despite evidence regarding the impact of abandoning statewide
elections. Order, pp. 52-53.
Second, the district court erred when it interpreted the provision
of the Georgia Constitution that election of Commissioners is “by the
2 See, e.g., Nipper, 39 F. 3d at 1531; Southern Christian Leadership

Conference v. Sessions, 56 F. 3d 1281, 1296 (11th Cir. 1995); Davis v.
Chiles, 139 F. 3d 1414, 1419-20 (11th Cir. 1998).
10
people.” Order, pp. 58-60.3 Earlier in the case, the district court refused
to take that step, noting that “[w]hether the at-large election of
members of the Commission is required by the Georgia Constitution or

only by statute bears on the totality-of-the-circumstances analysis the
Court must undertake” and could possibly lead to certifying that
question to the Georgia Supreme Court. Ex. C, [Doc. 97, pp. 22-23].
But in its order after trial, the district court found that the
statewide method of election is only required by statute, not by the
Georgia Constitution. Order, pp. 58-60. In so doing, it ignored other

provisions of the Georgia Constitution that use similar language—
“elected by the people”—to require, for example, statewide elections for
the Justices of the Georgia Supreme Court. GA. CONST. Art. VI, Sec. VI,
Par. I. Instead, the district court only reviewed language about other
appointed and elected constitutional boards and relied on legislative
history about the creation and operation of the Commission. Order, pp.
59-60.
By prohibiting the State of Georgia from holding statewide
elections for its utility regulators while not certifying the question of
how to interpret this language in the Georgia Constitution to the
3 The district court’s reliance on Cox v. Barber, 275 Ga. 415, 415 (2002)
for its conclusion only cites to dicta about the election process.
11
Georgia Supreme Court, the district court erred. “Substantial doubt

about a question of state law upon which a particular case turns should
be resolved by certifying the question to the state supreme court.” Jones

v. Dillard’s, Inc., 331 F. 3d 1259, 1268 (11th Cir. 2003) (quoting Moreno
v. Nationwide Insur. Co., 105 F. 3d 1358, 1360 (11th Cir. 1997)). The
district court does not cite to any case interpreting the “by the people”
language of the Georgia Constitution because it is a novel question of
state law and the Secretary has been unable to locate caselaw
addressing the interpretation of that section. The Supreme Court of

Georgia should have the first opportunity to interpret the Georgia
Constitution, especially when the district court relied on that
interpretation to alter a method of election that has been in place for

more than 115 years.
2. The district court erred in weighing evidence of

partisan voter behavior.
The second error of the district court relates to the impact of

polarized voting on its analysis. Everyone agrees that voting in Georgia
is polarized along racial lines—that is, Black voters prefer Democratic
candidates and white voters prefer Republican candidates. Order, p. 19.

The question is whether causation is necessary to proving a Section 2
claim—can the Secretary rebut evidence of racially polarized voting by
showing a “non-racial cause” like partisan behavior? See Nipper, 39 F.
12
3d at 1525–26. The evidence presented at trial included the testimony

of Dr. Michael Barber, whom the district court credited, which
demonstrated that Black voters consistently prefer Democratic

candidates regardless of the race of the candidate. Order, pp. 19-20. At
the very least, this would provide strong evidence that partisanship, as
opposed to race, explains the voting behavior of Black and white voters.
Recognizing this difficulty, the district court even acknowledged
that “the interplay between race and partisanship is difficult if not
impossible to disentangle.” Order, p. 21. But the district court then

concluded that it was unnecessary to address the impact of partisanship
on voter behavior and focused solely on the “disproportionate” effect on
Black voters, finding that a “high correlation between race and

partisanship does not undermine a Section 2 claim, it is necessary to it.”
Order, pp. 33-34 (emphasis in original). It further determined that
Black voters “are not selecting Democratic candidates because they are
Democrats; they are selecting Democratic candidates because they
perceive, rightly or wrongly, that those candidates will be more
responsive to issues that concern Black voters.”4 Order, p. 33.
4 This finding has the effect of enshrining one political party with the
protection of the Voting Rights Act because its candidates are
supported by Black voters, raising constitutional questions about the
validity of Section 2. See City of Boerne v. Flores, 521 U.S. 507, 530
13
In sharp contrast to the approach taken by the district court, this

Court, relying on the text of Section 2, has found it necessary to
demonstrate a “causal connection between racial bias and disparate

effect” in the vote-denial context, relying on the text of Section 2.
Greater Birmingham Ministries v. Sec’y of Ala., 992 F. 3d 1299, 1330-31
(11th Cir. 2021); see also Solomon, 221 F. 3d at 1225; League of United
Latin Am. Citizens v. Clements, 999 F. 2d 831, 854 (5th Cir. 1993) (en
banc) (“failures of a minority group to elect representatives of its choice
that are attributable to ‘partisan politics’ provide no grounds for relief”).

This matters because “in a majoritarian system, numerical minorities
lose elections.” Hall, 512 U.S. at 901 (Thomas, J., concurring). Further,
while racially polarized voting “will ordinarily create a sufficient

inference that racial bias is at work,” “a defendant [is allowed] to rebut
proof of vote dilution by showing that losses by minority candidates are
attributable to non-racial causes.” Nipper, 39 F. 3d at 1525–26.
Courts face a real danger when evaluating voting behavior
because “what appears to be bloc voting on account of race may, instead,
be the result of political or personal affiliation of different racial groups
with different candidates.” Solomon, 221 F. 3d at 1225. It also matters
(1997); Solomon v. Liberty County, 221 F. 3d 1218, 1225 (11th Cir.

2000) (en banc).
14
because a plaintiff must determine whether the alleged vote dilution is

“on account of race or color,” 52 U.S.C. § 10301(a). If the alleged vote
dilution is on account of partisanship—as opposed to race—then no

claim under Section 2 exists.5
This is not how the district court proceeded. Instead, it did not
allow the Secretary to rebut the defeat of Black-preferred candidates

with a partisan explanation, as anticipated by Nipper, but instead
limited the potential alternative explanations to candidate-specific
issues. Order, p. 39. The district court found that the

“disproportionate—and dilutive—effect on Black voters” was all that
mattered. Order, p. 33.
The district court’s failure to grapple with the impact of

partisanship is fatal to its decision. Not only is there “[n]o single
statistic [that] provides courts with a shortcut to determine” vote
dilution, De Grandy, 512 U.S. at 1020-21, but the district court did not
consider whether there was a “causal connection between racial bias
5 This comports with Justice Alito’s warning that “[u]nless courts

‘exercise extraordinary caution’ in distinguishing race–based
redistricting from politics-based redistricting, they will invite the
losers in the redistricting process to seek to obtain in court what they
could not achieve in the political arena.” Cooper v. Harris, 137 S. Ct.
1455, 1490 (2017) (Alito, J., concurring in part) (quoting Miller v.
Johnson, 515 U.S. 900, 916 (1995))
15
and disparate effect” and instead just determined no such analysis was
necessary, Greater Birmingham Ministries, 992 F. 3d at 1330-31.
Because the district court also weighed Factors 2 (racial polarization in

elections) and 7 (extent of election of minority officials) most heavily,
Order, pp. 32, 36, this mistake of law was necessary to its holding and
is also a basis on which the Secretary has shown a likelihood of success

on the merits.
3. The district court erred by ruling too close to an

election to obtain effective appellate review.
While the district court correctly analyzed the impact of Purcell v.
Gonzalez, 549 U.S. 1, 4 (2006) on the disruption to the mechanics of the
election-administration process, Order, pp. 61-62, it did not consider the

impact of ruling so close to the election on voter confidence. The timing
of the ruling effectively prevents the Secretary from obtaining appellate
review until after the date for statewide elections has already passed.
The current Commissioners will remain in office until such time as
there is an election, but the Secretary is prevented from obtaining
effective appellate review prior to the cancellation of the November

elections due to the timeline. This also warrants granting a stay.
16
B. The Secretary will suffer irreparable injury absent a

stay pending appeal.
Along with likelihood of success on the merits, whether the
movant will be irreparably injured absent a stay is a “most critical”
factor in the analysis whether to grant a stay pending appeal. Hand,
888 F. 3d at 1207. Here, this factor weighs strongly in favor of the

Secretary. The district court’s order by its terms enjoins the state from
enforcing its own laws and regulations as it sees fit and prohibits it
from ever electing its utility commissioners on a statewide basis.

“When the district court bars ‘the State from conducting this
year’s elections pursuant to a statute enacted by the legislature,’ unless
the statute is unconstitutional, an injunction would ‘seriously and

irreparably harm the State.’” New Ga. Project v. Raffensperger, 976 F.
3d 1278, 1283 (11th Cir. 2020) (quoting Abbott v. Perez, 138 S. Ct. 2305,
2324 (2018) (footnote omitted in original)). Here, as discussed above, the

district court’s determination means that all Georgia voters will be
unable to vote on their utility regulators in the November 2022 election
and will be prohibited from ever electing utility regulators on anything

but a district basis moving forward.
C. Plaintiffs will not suffer irreparable injury.

A stay pending appeal will not threaten Plaintiffs with irreparable
harm because it maintains the status quo: all Plaintiffs will still be able
to vote for Commissioners for Districts 2 and 3. The district court’s
17
decision ensures that every voter in Georgia will be unable to vote for
members of the Commission and the incumbent commissioners will hold
over until such time as a new election system is implemented. While

vote dilution is an injury, as discussed above, the Secretary is likely to
prevail on the merits and demonstrate that no vote dilution on account
of race takes place when Georgia elects its statewide elected officials on
a statewide basis. If the electoral defeats are caused by partisan politics
and not “a voting community . . . driven by racial bias,” Nipper, 39 F. 3d
at 1525, then there is no illegal vote dilution and Plaintiffs are not
injured.
D. The public interest favors a stay pending appeal.

As the appealing party, the Secretary’s interest and harm merge
with that of the public. Veasey v. Abbott, 870 F. 3d 387, 391 (5th Cir.
2017) (per curiam) (citing Nken, 556 U.S. at 435). Cancelling the
primary elections and eliminating the ability of every Georgia voter to
vote on members of the Commission in the November general election is
not in the public interest. Given the unique nature of utility regulators
and the interplay of race and politics discussed above, the public
interest supports granting a stay pending appeal and granting the stay
will promote confidence and stability in the election system by ensuring
effective appellate review before making significant changes to the
Georgia election system. New Ga. Project, 976 F. 3d at 1284.
18
CONCLUSION
For the reasons above, this Court should stay the district court’s
permanent injunction pending appeal.
Christopher M. Carr /s/Bryan P. Tyson

Attorney General Bryan P. Tyson
Bryan K. Webb Diane F. LaRoss
Deputy Attorney General Bryan F. Jacoutot
Russell D. Willard Taylor English Duma LLP
Senior Assistant Attorney General 1600 Parkwood Circle, Suite 200
Charlene McGowan Atlanta, GA 30339
Assistant Attorney General Telephone: 678-336-7249
State Law Department
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Counsel for Defendant-Appellant Brad Raffensperger
19
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limitation of Rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure because it

contains 3,913 words as counted by the word-processing system used to
prepare the document.
/s/Bryan P. Tyson
Bryan P. Tyson
20
CERTIFICATE OF SERVICE
I hereby certify that on August 8, 2022, I served this Motion
by electronically filing it with this Court’s ECF system, which
constitutes service on all attorneys who have appeared in this case and
are registered to use the ECF system. I have separately emailed all
counsel of record a copy of this filing and its attachments.
/s/Bryan P. Tyson
Bryan P. Tyson
21

Emergency Motion in Georgia Public Service Commission Appeal

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Emergency Motion in Georgia Public Service Commission Appeal

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USCA11 Case: 22-12593 Date Filed: 08/08/2022 Page: 1 of 30

RICHARD ROSE, BRIONTÉ MCCORKLE, WANDA MOSLEY,

On Appeal from the United States District Court for the

EMERGENCY MOTION TO STAY INJUNCTION

Christopher M. Carr Bryan P. Tyson

CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rules 26.1-1 through 26.1-3,

counsel for Defendant-Appellant hereby certifies that the below is

a complete list of all trial judges, attorneys, persons, associations

of persons, firms, partnerships, or corporations that have an

interest in the outcome of this appeal.

1. Bartlit Beck LLP: Counsel for Plaintiffs

2. Lori Beranek: Counsel for Amicus in underlying case

3. Christopher Carr: Counsel for Defendant

4. Kristen Clarke: Counsel for Amicus in underlying case

5. Kurt R. Erskine: Counsel for Amicus in underlying case

6. Georgia Department of Law: Counsel for Defendant

7. Steven D. Grimberg: District Judge

8. T. Christian Herren, Jr.: Counsel for Amicus in underlying

9. Aileen Bell Hughes: Counsel for Amicus in underlying case

10. Bryan F. Jacoutot: Counsel for Defendant

11. Pamela S. Karlan: Counsel for Amicus in underlying case

12. Diane LaRoss: Counsel for Defendant

13. Law Office of Bryan L. Sells, LLC: Counsel for Plaintiffs

14. Nicolas Martinez: Counsel for Plaintiffs

15. Brionté McCorkle: Plaintiff

16. Charlene McGowan: Counsel for Defendant

17. Timothy F. Mellett: Counsel for Amicus in underlying case

18. Wesley Morrissette: Counsel for Plaintiffs

19. Wanda Mosley: Plaintiff

20. Stephen J. Petrany: Counsel for Defendant

21. Brad Raffensperger, in his official capacity as Secretary of

State of Georgia: Defendant

22. Richard Rose: Plaintiff

23. Bryan L. Sells: Counsel for Plaintiffs

24. Janie Allison (Jaye) Sitton: Counsel for Amicus in

25. Taylor English Duma LLP: Counsel for Defendant

26. Bryan P. Tyson: Counsel for Defendant

27. U.S. Department of Justice: Amicus in underlying case

28. Bryan K. Webb: Counsel for Defendant

29. Russell D. Willard: Counsel for Defendant

30. James “Major” Woodall: Plaintiff

CORPORATE DISCLOSURE STATEMENT

Counsel for Appellant certifies that Appellant is an

individual, sued in his official capacities as a representative of a

State government entity. Counsel for Appellant further certifies

that no publicly traded company or corporation has an interest in

the outcome of the case or appeal.

Respectfully submitted this 8th day of August, 2022.

/s/ Bryan P. Tyson

Counsel for Defendant-Appellant Brad

Certificate of Interested Persons ................................................... C1

Corporate Disclosure Statement ................................................... C3

Table of Authorities ........................................................................ iii

A. Statutory framework. ............................................................ 3

B. Relevant proceedings below. ................................................. 4

1. Plaintiffs’ claims. ............................................................. 4

2. Evidence at trial. ............................................................. 4

3. Georgia’s election calendar.............................................. 6

I. Structure of claims under Section 2 of the Voting Rights

II. Application of the Nken factors warrants a stay of the

A. The Secretary is likely to succeed on the merits. ........... 8

1. The district court erred by not first certifying the

2. The district court erred in weighing evidence of