[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12593

____________________

RICHARD ROSE, 

an individual, 

BRIONTE MCCORKLE, 

an individual, 

WANDA MOSLEY, 

an individual, 

JAMES MAJOR WOODALL, 

Plaintiffs-Appellees,

versus

SECRETARY, STATE OF GEORGIA, 

Defendant-Appellant.

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____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-02921-SDG

____________________

Before BRANCH and GRANT, Circuit Judges, and SCHLESINGER,

∗

District Judge.

BRANCH, Circuit Judge:

The Georgia Public Service Commission (“PSC”) consists of 

five commissioners elected through statewide, at-large elections.1

Plaintiffs—four black residents of Fulton County, Georgia—sued 

the Georgia Secretary of State (“Secretary”) alleging that this 

election system constitutes unlawful vote dilution under Section 2 

of the Voting Rights Act (“VRA”). In short, plaintiffs allege that 

black Georgians have been unable to elect their preferred PSC 

candidates because the statewide electoral system forces them to 

go head-to-head with the preferences of white Georgians across 

the State. Plaintiffs contend that single-member districts would be 

∗ The Honorable Harvey Schlesinger, United States District Judge for the 

Middle District of Florida, sitting by designation.

1 As the district court recognized in its order, Georgia’s PSC elections are 

“statewide” because they are open to every registered Georgia voter and “atlarge” because all voters are eligible to vote directly for all five commissioners 

(instead of electing a single commissioner that then represents their district on 

the PSC). For ease of reference, we refer to this as a “statewide” system.

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less dilutive and, therefore, are required. The Secretary argues that 

partisanship—not race—has driven the PSC’s electoral outcomes.

He also argues that plaintiffs’ requested remedy (single-member 

districts) would impermissibly alter Georgia’s chosen form of 

government—a statewide body designed to avoid provincialism in 

the tough business of regulating energy. The district court agreed 

with plaintiffs and enjoined the Secretary from administering 

statewide PSC elections and from certifying any commissioner 

elected via such method.2

 For the reasons below, and with the 

benefit of oral argument, we reverse.

I. Background

A. The PSC’s Functions and Method of Election

The Georgia Constitution requires a five-member PSC for 

utility regulation. Ga. Const. Art. IV, § 1, ¶ I(a) (“There shall be a 

[PSC] for the regulation of utilities which shall consist of five 

members who shall be elected by the people.”). The PSC’s 

significant responsibilities are wide-ranging. At a basic level, the 

PSC determines, or at least monitors, the prices consumers pay for 

utilities—including electricity, natural gas, and some telephone 

services. The PSC also controls permitting for power plant 

construction and it has some jurisdiction over internet connectivity 

and rural broadband, among other functions. Simply put, the PSC 

is important to the State and its citizens.

2 This order also cancelled elections for two PSC seats that were scheduled for 

November 2022. 

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The PSC carries out its responsibilities as an “administrative 

body” that performs “quasi-judicial” and “quasi-legislative” 

functions. Tamiami Trail Tours, Inc. v. Ga. Pub. Serv. Comm’n, 99 

S.E.2d 225, 233 (Ga. 1957). That is, it conducts some of its 

proceedings as an adjudicatory body that “hears rate cases, holds 

hearings, listens to witnesses, makes evidentiary rulings, and 

weighs testimony from stakeholders”—similar to the judicial role. 

But it also sets utility rates, controls permitting for power plant 

construction, and regulates pole attachments and landlines for 

communications—similar to the legislative role. 

The PSC dates back to 1879 when the Georgia General 

Assembly adopted an act establishing its predecessor, the Railroad 

Commission. In 1922, the General Assembly changed the name of 

the Railroad Commission to the PSC and expanded its powers and 

duties. Since 1906, Georgia’s PSC commissioners—railroad 

commissioners prior to 1922—have been elected statewide to 

staggered six-year terms. When the PSC achieved constitutional 

status in 1945, the General Assembly retained the same election 

system.3 In fact, in over 100 years, there has only been one change 

to PSC elections. Specifically, in 1998, under Governor Roy Barnes, 

the Georgia General Assembly created a five-district system with a 

residency requirement that remains in place today. Under this 

system, PSC commissioners must live in the district they represent, 

3Before 1945, the PSC was only a creature of statute. 

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but they are still elected through statewide elections.4

 For example, 

to represent the PSC’s third district (Clayton, DeKalb, and Fulton 

Counties), a PSC commissioner must live in one of those three 

counties; however, Georgians in all 159 counties will vote on that 

commissioner’s candidacy. The residency requirement did not 

alter the electoral system (i.e., statewide elections are still used), but 

it did change the candidate pool (i.e., a PSC candidate must live in 

the district that he would represent if he were to win the statewide 

election).

The PSC’s statewide electoral structure was deliberately 

chosen to advance policy interests that the Georgia General 

Assembly deemed important. For example, the PSC’s statewide 

elections allow each commissioner to prioritize the “best interest[s] 

of the whole state” without logjams from regionalized disputes. 

As PSC Chair Tricia Pridemore testified below: 

4 The Georgia Constitution requires that the PSC be “elected by the people,” 

Ga. Const. Art. IV, § 1, ¶ I(a), leaving room for the Georgia General Assembly 

to spell out the specifics of the electoral system by statute. Since 1998, the 

governing law has provided: 

The [PSC] shall consist of five members to be elected as 

provided in this Code Section. . . . [M]embers elected to the 

commission shall be required to be residents of one of five 

[PSC] 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).

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[T]he one thing about the five commissioners is that 

we don’t fight over where things go. We don’t fight 

over which district gets a new gas plant or . . . a solar 

farm. . . . The way [PSC elections are] structured 

enables us to . . . maximize the needs for the state. 

If each commissioner represented only a district, then important 

questions of utility regulation—such as the location of energy and 

infrastructure—could turn into a zero-sum game between 

commissioners beholden to their districts instead of a collaborative 

effort to reach the best result for the entire State. Similarly, 

Pridemore testified that the statewide electoral system discourages 

fights over rate setting, one of the PSC’s most important functions: 

“We don’t fight and argue amongst the five of us . . . over [whether] 

District 5 customers pay less than District 3 or District 3 electric 

customers pay more.” Other PSC commissioners provided similar 

views.5

 At the end of the day, the Georgia General Assembly

selected a statewide election system that allows PSC 

commissioners to focus on the needs of Georgia as a whole.

B. Section 2 of the VRA

An upfront understanding of the framework of Section 2 of 

the VRA helps contextualize plaintiffs’ allegations, the Secretary’s 

counter arguments, and the district court’s various rulings.

5 Commissioner Tim Echols, for example, provided that he “think[s] it’s 

important that commissioners understand the issues of constituents all across 

[Georgia] regardless of where they live.” 

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The text of Section 2 is straightforward:6 It forbids “any 

State or political subdivision” from imposing any “voting 

qualification or prerequisite to voting or 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). The right protected by Section 2 is 

“equality of opportunity, not a guarantee of electoral success for 

minority-preferred candidates of whatever race.” Johnson v. De 

6 The pertinent text of Section 2 provides:

(a) No voting qualification or prerequisite to voting or 

standard, practice, or procedure shall be imposed or applied by 

any State or political subdivision in a manner 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, or in contravention 

of the guarantees set forth in section 10303(f)(2) of this title, as 

provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the 

totality of circumstances, it is shown that the political 

processes leading to nomination or election in the State or 

political subdivision are not equally open to participation by 

members of a class of citizens protected by subsection (a) in

that its members have less opportunity than other members of 

the electorate to participate in the political process and to elect 

representatives of their choice. The extent to which members 

of a protected class have been elected to office in the State or 

political subdivision is one circumstance which may be 

considered: Provided, [t]hat nothing in this section establishes a 

right to have members of a protected class elected in numbers 

equal to their proportion in the population.

52 U.S.C. § 10301(a)–(b).

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Grandy, 512 U.S. 997, 1014 n.11 (1994). Notably, Section 2 explicitly 

disclaims a right to proportionality. 52 U.S.C. § 10301(b) 

(“[N]othing in this section establishes a right to have members of a 

protected class elected in numbers equal to their proportion in the 

population.”). 

In Thornburg v. Gingles, 478 U.S. 30, (1986), the Supreme 

Court laid the foundation for assessing at-large voting systems for 

vote dilution under Section 2. Id. at 43–51. “[A]t-large elections” 

are not “per se violative of § 2,” but the Supreme Court has “long 

recognized that . . . at-large voting schemes may operate to 

minimize or cancel out the voting strength of racial minorities in 

the voting population.” Id. at 46–47 (quotation omitted) (alteration 

adopted). In such a case, at-large districts are prohibited. Id. at 48.

To establish vote dilution under Section 2, plaintiffs must 

first satisfy the three Gingles preconditions: 

First, the minority group must be sufficiently large 

and [geographically] compact to constitute a majority 

in a reasonably configured district. Second, the 

minority group must be able to show that it is 

politically cohesive. And third, the minority must be 

able to demonstrate that the white majority votes 

sufficiently as a bloc to enable it . . . to defeat the 

minority’s preferred candidate.”

Allen v. Milligan, 599 U.S. 1, 18 (2023) (brackets in original) (ellipses 

in original) (quotations omitted) (internal citations omitted) (citing 

Gingles, 478 U.S. at 51). 

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Importantly, we have interpreted the first Gingles 

precondition—a minority group being sufficiently large and 

geographically compact to constitute a majority in a reasonably 

configured district—to require plaintiffs to “offer[] a satisfactory 

remedial plan.” Wright v. Sumter Cnty. Bd. of Elections & Registration, 

979 F.3d 1282, 1302 (11th Cir. 2020). Without a satisfactory 

remedial plan, plaintiffs “cannot succeed.” Id.; see also Nipper v. 

Smith, 39 F.3d 1494, 1530 (11th Cir. 1994) (en banc) (“[T]he issue of 

remedy is part of the plaintiff’s prima facie case in section 2 vote 

dilution cases.”); Burton v. City of Belle Glade, 178 F.3d 1175, 1199 

(11th Cir. 1999) (“We have repeatedly construed the first Gingles 

factor as requiring a plaintiff to demonstrate the existence of a 

proper remedy.”). Further, plaintiffs’ remedial plan cannot be 

fundamentally at odds with the state’s chosen model of 

government because “[n]othing in the Voting Rights Act suggests 

an intent on the part of Congress to permit the federal judiciary to 

force on the states a new model of government.” Nipper, 39 F.3d at 

1531. 

Our interpretation of the first Gingles precondition has 

attracted support in other circuits. See Sanchez v. Colorado, 97 F.3d 

1303, 1311 (10th Cir. 1996) (“The inquiries into remedy and liability, 

therefore, cannot be separated: A district court must determine as 

part of the Gingles threshold inquiry whether it can fashion a 

permissible remedy in the particular context of the challenged 

system.”(quoting Nipper, 39 F.3d at 1530–31)); Bone Shirt v. 

Hazeltine, 461 F.3d 1011, 1025 (8th Cir. 2006) (Gruender, J. 

concurring) (same). Even circuits that do not assess the viability of 

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the proposed remedy as part of the first precondition inquiry

recognize that proper remedies are critical in Section 2 vote 

dilution cases. See generally Cousin v. Sundquist, 145 F.3d 818, 831 

(6th Cir. 1998) (“Therefore, even if we found that plaintiffs’ 

showing met the Gingles pre-conditions or satisfied the totality of 

the circumstances test, we would not approve the imposition of 

such a remedy.”). Thus, especially in a case like this one, where 

plaintiffs offer only a single, dramatic remedy—transforming a 

cumulative voting statewide system into a single-member 

districted plan—it makes no difference whether a claim fails for the

lack of a permissible remedy at the precondition stage or after the 

totality of the circumstances analysis.

If plaintiffs can satisfy each Gingles precondition, the analysis 

then proceeds to a totality of the circumstances test7 to determine 

7As part of the totality of the circumstances analysis, we traditionally consider 

the “Senate factors,” which include: 

1. the extent of any history of official discrimination in the state 

or political subdivision that touched the right of the members 

of the minority group to register, to vote, or otherwise to 

participate in the democratic process;

2. the extent to which voting in the elections of the state or 

political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used 

unusually large election districts, majority vote requirements, 

anti-single shot provisions, or other voting practices or 

procedures that may enhance the opportunity for 

discrimination against the minority group;

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whether the voting system “result[s] in unequal access to the 

electoral process.” Gingles, 478 U.S. at 46; see also Wright, 979 F.3d 

at 1288 (“Once all three Gingles requirements are established, the 

statutory text directs us to consider the totality of the 

circumstances to determine whether members of a racial group 

have less opportunity than do other members of the electorate.” 

(quotation omitted)). “[I]t is the plaintiff’s burden to establish each

of the Gingles preconditions and to show, under the totality of the 

circumstances, that members of a protected class suffer unequal 

4. if there is a candidate slating process, whether the members 

of the minority group have been denied access to that process;

5. the extent to which members of the minority group in the 

state or political subdivision bear the effects of discrimination 

in such areas as education, employment and health, which 

hinder their ability to participate effectively in the political 

process;

6. whether political campaigns have been characterized by 

overt or subtle racial appeals; and

7. the extent to which members of the minority group have 

been elected to public office in the jurisdiction.

. . . 

8. whether there is a significant lack of responsiveness on the 

part of elected officials to the particularized needs of the 

members of the minority group; and

9. whether the policy underlying the state or political 

subdivision’s use of such voting qualification, prerequisite to 

voting, or standard, practice or procedure is tenuous.

Wright, 979 F.3d at 1289. 

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access to the political process.” Wright, 979 F.3d at 1307 (emphasis 

in original). 

Putting these pieces together, the traditional Section 2 vote 

dilution case challenges the operative boundaries of an electoral 

system and seeks to redraw those boundaries so that the minority 

population’s voting strength is no longer diluted across the 

aggregated voting population. Gingles, 478 U.S. at 46–47. Often, 

these cases challenge multi-member, at-large districts used by 

governmental subunits within a state—such as city councils, 

county commissions, or school boards—and allege vote dilution 

because white voters get to vote for every board member which, in 

turn, drowns out the preferences of minority voters. See generally 

United States v. Marengo Cnty. Comm’n, 731 F.2d 1546, 1552 (11th Cir. 

1984) (county commission and school board); Sanchez v. Bond, 875 

F.2d 1488, 1489–90 (10th Cir. 1989) (county commission); Badillo v. 

City of Stockton, 956 F.2d 884, 885–86 (9th Cir. 1992) (city council); 

Harvell v. Blytheville Sch. Dist. No. 5, 71 F.3d 1382, 1385 (8th Cir. 1995) 

(school board); McNeil v. Springfield Park Dist., 851 F.2d 937, 938 (7th 

Cir. 1988) (school board and park district); Clarke v. City of 

Cincinnati, 40 F.3d 807, 808 (6th Cir. 1994) (city council); Washington 

v. Tensas Par. Sch. Bd., 819 F.2d 609, 610–12 (5th Cir. 1987) (school 

board and policy jury which was the “parish governing authority”); 

Holloway v. City of Va. Beach, 42 F.4th 266, 270–71 (4th Cir. 2022) 

(city council); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 

1103, 1111–12 (3d Cir. 1993) (school board); Goosby v. Town Bd. of 

Hempstead, 180 F.3d 476, 481 (2d Cir. 1999) (town board); Uno v. City 

of Holyoke, 72 F.3d 973, 977–78 (1st Cir. 1995) (city council). In these 

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cases, plaintiffs essentially allege that there are no “safe” districts in 

which minority voters have an enhanced opportunity to elect their 

preferred candidates. If vote dilution is found in these multimember, at-large electoral systems, 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.” Bartlett v. Strickland, 556 U.S. 1, 13 (2009); see Connor v. 

Johnson, 402 U.S. 690, 692 (1971) (“[S]ingle-member districts are 

preferable to large multi-member districts as a general matter.”).

Section 2 vote dilution challenges have also been brought 

against electoral systems that employ single-member districts. 

Voinovich v. Quilter, 507 U.S. 146, 157–58 (1993) (“In [Growe v. Emison, 

507 U.S. 25, 40–42 (1993)], however, we held that the Gingles 

preconditions apply in challenges to single-member as well as 

multimember districts.”); see, e.g., De Grandy, 512 U.S. at 1000. 

Plaintiffs in these cases generally allege that their votes are diluted 

because the operative electoral map has an insufficient number of

majority-minority districts. In the context of these single-member 

districts, if vote dilution is found, the traditional remedy is to 

redraw the boundaries of the already-existing single-member 

districts to remove the plan’s dilutive effect. See League of United 

Latin Am. Citizens v. Perry, 548 U.S. 399, 495 (2006) (Roberts, J., 

concurring) (“[I]n the context of single-member districting 

schemes, we have invariably understood [Section 2 of the VRA] to 

require the possibility of additional single-member districts that 

minority voters might control.” (emphasis in original)).

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In these two types of traditional Section 2 cases, plaintiffs 

have experienced mixed levels of success depending—of course—

on the facts of the case. Importantly, however, despite the 

extensive and litigious history of Section 2, it had never been used 

to invalidate a statewide election system on vote dilution grounds 

until the district court reached such a holding in this case.8

C. Procedural History

Plaintiffs filed this lawsuit in the Northern District of 

Georgia in July 2020. They alleged that Georgia’s statewide PSC 

elections dilute their votes in violation of Section 2 of the VRA 

because black voters have been consistently unable to elect their 

preferred candidates over the voting strength of white voters across 

Georgia.9

 Plaintiffs maintained that this electoral ineffectiveness 

8 We are unaware of—and plaintiffs failed to provide—any case that has 

invalidated a statewide election system under the Section 2 framework. When 

asked at oral argument if plaintiffs’ counsel was “aware of any case where § 2 

renders a statewide election illegal,” counsel admitted that “[he thought] the 

answer [was] no.” The district court recognized the unprecedented nature of 

this case as well, noting that “[t]his case presents the novel question of whether 

there can be vote dilution in violation of Section 2 of the [VRA] when the 

challenged election is held on a statewide basis.” 

9 Plaintiffs do not cabin their argument to the PSC’s unique statewide system 

that is coupled with a residency requirement—rather, they take aim at the 

statewide system in general. That is, even without the live-in-the-district 

requirement, plaintiffs would put forth the same vote dilution argument, as 

they made clear during proceedings at the district court:

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was despite the fact that “African Americans in Georgia [were] 

sufficiently numerous and geographically compact to constitute a 

majority of the voting-age population in at least one singlemember district.” Accordingly, plaintiffs sought a remedy that 

would change Georgia’s statewide system to single-member 

districts—including one Atlanta-based district with a black 

majority. 

The Secretary moved to dismiss. The district court denied 

the Secretary’s motion in full. 

Then, the parties cross-moved for summary judgment. In 

particular, plaintiffs argued that they were entitled to partial 

summary judgment because they satisfied the three preconditions 

for a Section 2 vote dilution claim as set forth in Gingles. 478 U.S. 

at 50–51. The Secretary again argued that plaintiffs lacked standing 

or that, at least, plaintiffs “failed to demonstrate they have a 

sufficient remedy” because “the undisputed evidence demonstrates 

the State has a strong interest in maintaining its form of 

government for the PSC as a statewide elected body.” 

District Court: So you’re saying that even if there was no 

residency requirement your challenge would still be viable? 

Your challenge is to the statewide at-large nature of election? 

[Plaintiffs’ Counsel]: Absolutely, Your Honor. In a nutshell, 

our claim is that African-American voters votes are diluted by 

the at-large nature of elections for the [PSC] because of the 

presence of racially-polarized voting.

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While the Secretary’s motion was denied in its entirety, 

plaintiffs’ motions were granted in part. The district court agreed 

that plaintiffs satisfied the Gingles preconditions and were entitled 

to summary judgment on those points. However, it determined 

that plaintiffs were not entitled to summary judgment on their 

proposed remedy, and the case was set for trial. After a five-day 

bench trial, the district court found that Georgia’s statewide PSC 

elections diluted the voting strength of black voters in violation of 

Section 2 and permanently enjoined the Secretary from 

administering or certifying future PSC elections under this 

method. The district court also found that plaintiffs’ proposed 

remedy (single-member districts) was viable. 

The Secretary appealed, and “move[d] for a stay pending 

appeal of the district court’s . . . order permanently enjoining him 

from conducting state-wide elections on November 8, 2022, for 

Districts 2 and 3 of the Georgia [PSC].” A panel of this Court 

granted a stay, finding that the district court should not have altered 

the rules of an election that was about to occur under the “Purcell 

principle.” See Purcell v. Gonzalez, 549 U.S. 1 (2006). The Supreme 

Court, however, vacated the stay, concluding that we erred in 

failing to analyze the request under the traditional stay factors.10 

Rose v. Reffensperger, 143 S. Ct. 58, 59 (2022).

10The Supreme Court stated: 

The August 12, 2022 order of the United States Court of 

Appeals for the Eleventh Circuit staying the district court’s 

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Accordingly, we ordered the Secretary to “file a 

supplemental brief addressing whether a stay pending appeal is 

appropriate under the traditional stay factors.” Instead, the 

Secretary filed an “Unopposed Motion to Withdraw Emergency 

Stay Injunction Pending Appeal,” which was granted, and the PSC 

elections at issue did not occur in November 2022. We then heard 

oral arguments on the merits of the Section 2 vote dilution claim.

II. Standard of Review

We review a district court’s “finding of vote dilution under 

§ 2” of the VRA for “clear error.” Wright, 979 F.3d at 1288. 

Similarly, a “district court’s determination regarding one of the 

Gingles prongs is entitled to considerable deference.” Johnson v. 

Hamrick, 296 F.3d 1065, 1074 (11th Cir. 2002). We have emphasized, 

injunction is vacated. Respondent’s emergency motion for a 

stay pending appeal relied on the traditional stay factors and a 

likelihood of success on the merits, see Nken v. Holder, 556 U.S. 

418 (2009), yet the Eleventh Circuit failed to analyze the 

motion under that framework. Instead, it applied a version of 

the Purcell principle, see Purcell v. Gonzalez, 549 U.S. 1 (2006) (per 

curiam), that respondent could not fairly have advanced 

himself in light of his previous representations to the district 

court that the schedule on which the district court proceeded 

was sufficient to enable effectual relief as to the November 

election should applicants win at trial. The Eleventh Circuit 

may reconsider whether a stay pending appeal is appropriate, 

subject to sound equitable discretion.

Rose v. Raffensperger, 143 S. Ct. 58 (Mem), 213 L. Ed. 2d 1143 (2022)

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however, that clear error review is not a “rubber stamp,” Wright, 

979 F.3d at 1301, and we always retain the power to “correct a 

district court’s errors of law and its findings of fact based upon 

misconceptions of law,” United States v. Jones, 57 F.3d 1020, 1022 

(11th Cir. 1995).

III. Discussion

This vote dilution challenge is not a traditional one. Rather, 

plaintiffs ask us to find—for the first time ever—that statewide 

elections constitute vote dilution under Section 2. And, as a 

remedy, plaintiffs ask that we replace Georgia’s chosen form of 

government (five statewide commissioners) with a completely 

different system (one commission with five single-member 

districts) that does not protect the statewide interests the Georgia 

General Assembly deemed important. Simply put, plaintiffs’ 

request strains both federalism and Section 2 to the breaking point.

Nonetheless, in a novel decision, the district court ruled that 

Georgia’s statewide PSC elections constitute vote dilution in 

violation of Section 2. But, because 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 

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precondition. See, e.g., Nipper, 39 F.3d at 1529. Thus, we conclude

that the district court made a mistake of law, and we reverse.11

A. Plaintiffs’ proposed remedy

Plaintiffs propose converting PSC elections from statewide 

to single-member districted elections. Specifically, under plaintiffs’ 

proposal, the State of Georgia would be divided into five districts 

and PSC commissioners would be elected by voters in their district 

rather than by every voter in the State. Plaintiffs’ proposed map 

includes one majority-minority district. That district (proposed 

District 1) would span the Atlanta area and include all of Clayton, 

DeKalb, Fayette, Henry, Newton, and Rockdale Counties as well as 

the southern half of Fulton County. This district would have a 54% 

black voting-age population. The other four districts would be 

largely rural and majority white. 

B. Plaintiffs’ proposed remedy is not viable

As an initial matter, we agree with plaintiffs that Section 2 

applies because it explicitly protects against voting “standard[s], 

practice[s], or procedure[s]” imposed by “any State or political 

subdivision” that “result[] in a denial or abridgement of the right 

of any citizen . . . to vote on account of race or color.” 52 U.S.C. 

§ 10301(a); see Milligan, 599 U.S. at 24–25. Nonetheless, plaintiffs 

11 Because we decide this appeal on the remedy requirement at the first Gingles 

precondition, we do not consider the Secretary’s argument that the district 

court’s finding of racial vote dilution was clearly erroneous, and we do not 

proceed to analyze the “Senate factors” at Gingles’s totality of the

circumstances stage. 

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cannot satisfy the first Gingles precondition because their novel 

application of Section 2 relies on a remedy that is not viable. 

Wright, 979 F.3d at 1302 (“A section 2 plaintiff cannot succeed 

without offering a satisfactory remedial plan.”).

To reiterate a critical point, plaintiffs’ proposed remedy asks 

us to wade into uncharted territory. Plaintiffs do not bring a 

routine challenge to an at-large voting structure at the municipal 

or county level and seek a single-member districted plan as the 

remedy. Nor do they seek to redraw an already-existing singlemember districted system into a less dilutive single-member 

system. We have considered those challenges. See generally Wright, 

979 F.3d at 1287; De Grandy, 512 U.S. at 1000. Instead, plaintiffs’ 

novel proposal is that we dismantle Georgia’s statewide PSC 

system and replace it with an entirely new districted system. But 

we have never gone this far.

We start by laying out the applicable legal framework 

established by three of our precedents and then we apply our 

precedent to the instant case. See Nipper, 39 F.3d at 1497; S. Christian 

Leadership Conf. v. Sessions, 56 F.3d 1281, 1296–97 (11th Cir. 1995)

[hereinafter SCLC] (en banc); Davis v. Chiles, 139 F.3d 1414, 1416 

(11th Cir. 1998).

Nipper is the first case of the trifecta. 39 F.3d at 1496. In 

Nipper, this Court—sitting en banc—expressly limited our reach in 

certain Section 2 vote dilution cases. Id. In that case, plaintiffs 

“challenge[d] the [at-large election] system used to elect the judges 

of Florida’s Fourth Judicial Circuit Court [comprised of three 

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counties] . . . and the judges of the Duval County Court.” Id. They 

sought “a remedy, such as the creation of subdistricts, that [would] 

ensure their ability to elect black judges of their choice.” Id. at 

1497. A majority of the Court12 interpreted the first Gingles 

precondition to require “a remedy within the confines of the state’s 

judicial model.” Id. at 1531 (emphasis added). Without such a 

remedy, plaintiffs could not succeed because “[n]othing in the 

[VRA] . . . permit[s] the federal judiciary to force on the states a 

new model of government; moreover, from a pragmatic 

standpoint, federal courts simply lack legal standards for choosing 

among alternatives.” Id. Then, after examining the alternative 

models proposed by the plaintiffs, we held that plaintiffs’ claim 

failed because each alternative would threaten important state 

interests and “undermine the administration of justice.” Id. at 

12 Due to recusals, eight judges sat en banc for Nipper. 39 F.3d at 1496 n.*. Judge 

Tjoflat’s plurality opinion was joined by one judge. Id. at 1496–1547. Judge 

Edmondson concurred and was joined by three judges. Id. at 1547 

(Edmondson, J., concurring). As such, the portions of the plurality opinion 

that were concurred to (specifically Parts III(A) and III(B)(1)) are binding 

because they were joined by a six-judge majority. Id. For Judge Edmondson 

(and the three judges that joined his concurrence), the case was open and shut: 

For me, the point that determines the outcome of the case is 

this one: The State of Florida’s legitimate interest in 

maintaining linkage between jurisdiction and the electoral 

bases of its trial judges is, as a matter of law, great and 

outweighs (either at the vote-dilution-finding stage or at the 

remedy stage) whatever minority vote dilution that may 

possibly have been shown here.

Id.

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1543, 1546–47 (“Florida’s current model of trial court elections 

embodies a state judgment that the voters in a judge’s jurisdiction 

should have the right to hold that judge accountable for his or her 

performance in office.”).

The logic of Nipper was quickly reaffirmed, this time in a 

challenge to Alabama’s at-large elections for trial judges. SCLC, 56 

F.3d at 1281. Sitting en banc again, we had the power to revisit the 

legal standards employed in Nipper—but did not. Id. at 1294. 

Instead, after affirming the district court’s finding that there was no 

vote dilution, we went on to hold that “no remedy [was] available.” 

Id. We reiterated that “[w]hen determining whether the remedy a 

plaintiff seeks is a feasible alternative to the challenged electoral 

system, a state’s interest in maintaining the challenged system is a 

legitimate factor to be considered.” Id. Then, we considered 

Alabama’s interests in “maintaining the link between a trial judge’s 

electoral base and jurisdiction,” protecting against “favoritism 

concerns” that arise when smaller districts are created, and 

“ensuring a reasonable pool of qualified potential candidates.” Id. 

at 1297. In sum, we held that “the many state policy 

interests . . . preclude[d] the remedies appellants[] propose[d].” Id. 

Thus, SCLC cemented the analysis of Nipper.

Finally, in Davis, in affirming the district court’s rejection of 

a proposed remedy in a Section 2 vote dilution suit challenging an 

at-large judicial election system in Florida, a panel of this Court 

reiterated our prior holdings regarding impermissible remedies: 

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In Nipper and SCLC, we ruled that a state’s interest in 

maintaining its judicial model and in preserving such 

linkage outweighed the plaintiffs’ interest in 

ameliorating the effects of racial polarization in atlarge judicial elections. . . . Based on these precedents, 

we hold that Davis’s [proposed remedy] would not be 

a proper remedy . . . .

139 F.3d at 1423 (citations omitted). In fact, this holding was the 

only possible outcome because our case law “has placed . . . an 

insurmountable weight on a state’s interest in preserving its 

constitution’s judicial selection system and in maintaining linkage 

between its judges’ jurisdictions and electoral bases.” Id.

The primary takeaway from this line of precedent is that 

general principles of federalism undergird our decisions—as they 

must. Id. (“[W]e must consider Florida’s interest in maintaining the 

challenged electoral system. . . . Of primary importance in this 

case, our adoption of Davis’s plan would require us to contravene 

Florida’s Constitution and to substantially break the link between 

the affected judges’ jurisdictions and electoral bases.”); see also

SCLC, 56 F.3d at 1298 (Edmondson, J., concurring) (“The basic 

structure of Alabama’s judicial branch of government, including 

the shape of its judicial jurisdictions and the manner of selecting 

trial judges, is in the hands of Alabama’s people.”). This significant 

respect for a state’s decisions on matters involving its governmental 

structure stems from our federalist system of government which 

necessitates respect for states that are “residuary sovereigns and 

joint participants in the governance of the Nation.” Alden v. Maine, 

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527 U.S. 706, 748 (1999); Printz v. United States, 521 U.S. 898, 918–19

(1997) (“Although the States surrendered many of their powers to 

the new Federal Government, they retained ‘a residuary and 

inviolable sovereignty.’” (quoting The Federalist No. 39, at 245 

(James Madison)). Thus, while the Fourteenth Amendment and 

VRA overcome state sovereignty in certain factual situations in the 

voting rights arena, we must remain mindful of state authority,

which is a hallmark of American government. See, e.g., League of 

United Latin Am. Citizens v. Clements, 999 F.2d 831, 871 (5th Cir. 1993) 

(“The substantiality of the state’s interest has long been the 

centerpiece of the inquiry into the interpretation of the Civil War 

Amendments and their interplay with the civil rights statutes.”). 

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. Specifically, “there must be a 

remedy within the confines of the state’s [PSC] model[.]” Nipper, 39 

F.3d at 1531. 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.” SCLC, 56 F.3d at 1294; see also Davis, 

139 F.3d at 1423; Houston Lawyer’s Ass’n v. Att’y Gen., 501 U.S. 419, 

426–27 (1991) (recognizing the importance of considering the 

state’s interest in assessing a plaintiff’s proposed remedy). We must 

be mindful that “[i]mplicit in this 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 

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system.” Nipper, 39 F.3d at 1531; Wright, 979 F.3d at 1302 (“A section 

2 plaintiff cannot succeed without offering a satisfactory remedial 

plan,” because “the issue of remedy [at the first Gingles

precondition] is part of the plaintiff’s prima facie case.”).

The Georgia General Assembly determined that the PSC—

a state commission with statewide authority and statewide 

responsibilities—should be elected on a statewide basis. O.C.G.A. 

§ 46-2-1(a). It did so for race-neutral reasons, and plaintiffs do not 

suggest otherwise. Indeed, there is no evidence that race 

motivated Georgia’s choice of electoral format at all. To the 

contrary, the State’s deliberate choice was informed by significant 

policy considerations that would be undermined by a forced 

change in the Commission’s structure—from a statewide body to 

a single-member districted body. Thus, an adequate remedy has

not been proposed. See SCLC, 56 F.3d at 1297 (“[T]he many state 

policy interests we have discussed . . . preclude the remedies 

appellants[] propose; moreover[,] these interests outweigh 

whatever possible vote dilution may have been shown in this 

case.”).

We reach this conclusion because plaintiffs’ proposed 

remedy would fundamentally change the PSC’s structure and 

operations.13 A change from statewide to single-member districted 

13To combat this point, plaintiffs point to the dissent to our grant of a stay in 

this case in August 2022. In pertinent part, the dissent argued that the district 

court did not permit a remedy that altered Georgia’s chosen form of 

government because “[t]he district court didn’t, for instance, add a branch of 

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elections would clearly affect the inner-workings of the PSC 

because commissioners would be serving a new constituency—

their respective districts rather than the State as a whole.

14 As PSC 

Chair Pridemore testified, the current system allows 

commissioners to focus on the needs of the entire State, whereas a 

districted plan has the potential to disconnect commissioners from 

that critical statewide mission. See Id. at 1296 (recognizing, in the 

judicial context, an important state interest in “linkage,” which 

preserves accountability by “[l]inking a trial court judge’s territorial 

jurisdiction and electoral base”); Cousin, 145 F.3d at 827 (same). 

Plaintiffs’ proposed remedy would also undo a fundamental 

component of Georgia’s current PSC electoral system—its 

insulation from localized special interests. Our precedents make 

clear that this concern is not only relevant, but also can be the 

defining feature of an elected body. See, e.g., Nipper, 39 F.3d at 1544. 

government, or move a power from one branch to another” or “change how 

any of the three branches must conduct themselves.” Rose v. Sec’y, No. 22-

12593, 2022 WL 3572823, at *11 (11th Cir. 2022) (Rosenbaum, J., dissenting). 

This test sets an arbitrarily high threshold such that nearly every conceivable 

proposal would pass muster (i.e., no proposed remedy will be as significant as 

offering a fourth branch of government). Such a test does not comport with 

our precedents that expressly protect a state’s chosen form of government. 

And moving from a statewide electoral system to a districted one is, in any 

event, a change of significant magnitude. 

14 Because the PSC’s electoral map is already drawn into residency districts, 

plaintiffs argue that single-member districted elections would be consistent 

with the State’s chosen model of government. This argument ignores that 

each commissioner is still elected statewide.

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As we have stated, “[t]he implementation of subdistricts would 

increase the potential for ‘home cooking’ by creating a smaller 

electorate and thereby placing added pressure on elected [officials] 

to favor constituents—especially as election time approaches.” Id.; 

see also SCLC, 56 F.3d at 1297 (“Subdistricting would also increase 

the specter of ‘home cooking’: Creating a smaller electorate would 

increase the pressure to favor constituents.”). And the concern over 

provincialism is merited because “[e]veryone agrees that in some 

politically volatile and controversial cases it is beneficial to have the 

electorate come from the entire circuit rather than some smaller 

portion.” SCLC, 56 F.3d at 1297. 

The provincialism concerns discussed in our precedents are 

magnified when dealing with a statewide body like the PSC. 

Compared to county commission districts, for example, there is 

much greater potential for divisive problems to arise across an 

entire state—especially one as large as Georgia—and the pertinent 

issues are more likely to be large-scale with huge significance.15 

15 Just one example of a hugely divisive and significant issue with which the 

PSC is involved is the construction of Plant Vogtle near Augusta, Georgia. 

The total project “nears $35 billion” in cost. Jeff Amy, Utilities Begin Loading 

Radioactive Fuel into a Second New Reactor at Georgia Nuclear Plant, Assoc. Press 

(Aug. 17, 2023), [https://perma.cc/2PZY-7YTG]. And soon there will be “a 

hearing . . . by the PSC to determine how much customers will pay versus 

Georgia Power.” Erica Van Buren, Georgia Power to Start Loading Fuel into Plant 

Vogtle Unit 4, Test the Reactor, Augusta Chron. (Aug. 18, 2023),

[https://perma.cc/AYD3-D4G9]. It is easy to see how such a project—which 

carries large costs and directly affects one specific area of the state (in order to, 

in theory, reduce energy costs across the entire state)—would implicate 

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Thus, while changing an at-large electoral system to a singlemember districted system may be a permissible remedy at the 

county level where there is little risk of provincialism due to the 

county’s size, such a remedy can be impermissible at the State level 

where provincialism concerns merit considerable weight. And the 

State’s interest is all the stronger where, as here, the PSC’s 

statewide body furthers important race-neutral goals. Accordingly, 

the need to prioritize the State’s interests over local concerns 

supports the State’s policy-based decision to have its PSC elected 

statewide. And finally, while it does not play a determinative role 

in our analysis, we note that Georgia is not the only state to 

undertake this calculus and conclude that statewide elections are 

best for state boards like the PSC. Rather, nine other states—of 

varying regions and political majorities—employ statewide 

elections for their state commissions. Plaintiffs’ counsel admitted 

as much at oral argument: “there are . . . seven states . . . including 

Georgia, that use [statewide] at-large elections for some or all of 

their utility regulators,” as well as “two states . . . that use 

[statewide] at-large elections for some or all of their boards of 

education[],” and “Hawaii . . . uses [statewide] at-large elections for 

a native Hawaiian board.” And there is no reason that if the 

statewide PSC—justified by a legitimate desire to avoid 

provincialism in the regulation of utilities and untainted by even a 

suggestion of racial bias in its creation—could be converted by this 

“home cooking” concerns in a way that would negatively affect the PSC’s 

mission to protect the interests of the entire State.

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Court into a multidistrict body, that the State Supreme Courts and 

other multi-member statewide entities could not be converted as 

well.

Here, plaintiffs have failed to put forward an alternative lessdilutive voting practice that can be implemented to elect 

commissioners to the statewide PSC. Plaintiffs instead propose 

adopting an election scheme that would effectively change the 

structure of the PSC itself from a statewide body to a body that 

comprises single-member districts. This extraordinary remedy is 

not viable given Georgia’s strong interests in maintaining the PSC 

as a statewide body.

We do not mean to suggest that Section 2 plaintiffs could 

never prevail when asserting a Section 2 vote dilution claim against 

a statewide body. Instead, we merely reaffirm the principle that 

plaintiffs must propose a remedy within the confines of the state’s 

chosen model of government when bringing such a claim. 

Further supporting our decision is the difficulty in selecting 

a reasonable benchmark to evaluate the challenged voting practice. 

As the Supreme Court has explained, sometimes selecting a 

reasonable benchmark is easy, sometimes it is hard. Holder v. Hall, 

512 U.S. 874, 880–81 (1994). Here, plaintiffs simply state, without 

citing any case, that their proposed remedy is the benchmark. But 

that cannot be right. If we accepted plaintiffs’ argument that a 

proposed remedy is the benchmark, we would never struggle to 

find one. And, in fact, in Holder, the Supreme Court wrestled with 

the issue of how to choose an appropriate benchmark. Id. at 881. 

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In that case, the plaintiffs challenged the size of a county 

commission and argued that a five-member commission should 

serve as the benchmark over the single member commission that 

was in place. Id. The Supreme Court held that “there [was] no 

principled reason why one size should be picked over another as 

the benchmark for comparison.” Id. Similarly, here, plaintiffs have 

not provided a principled reason why a PSC comprising singlemember districts should be picked as the benchmark. 

We turn now to plaintiffs’ counterarguments—and reject 

them.

To start, despite plaintiffs’ argument to the contrary, the 

Nipper line of precedent is binding on the instant case. Of course, 

we are fully aware that Nipper, SCLC, and Davis involve judicial 

elections. But the application of these decisions is not limited to 

judicial elections only. Even if that were the case, these decisions

would still have equal force here because the PSC is a “quasijudicial” administrative body. Tamiami Trail, 99 S.E.2d at 233 (“It 

has been recognized by this court and by the courts of other 

jurisdictions that an administrative body such as the Public Service 

Commission may, in matters which come before it for 

determination, perform quasi-judicial functions as well as quasilegislative functions.”). This categorization is not hollow. Rather, 

the PSC operates in a distinctly judicial fashion. It “hears rate cases, 

holds hearings, listens to witnesses, makes evidentiary rulings, and 

weighs testimony from stakeholders to come to a decision.” 

Further, the reasons that we respect a state’s decision regarding its 

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judicial election system (i.e., linking the electoral and jurisdictional 

districts for accountability, protecting against “home cooking,” and 

promoting fairness) apply just the same in the “quasi-judicial” 

context (as analyzed above). See generally Nipper, 39 F.3d at 1544.

We also recognize that Davis references a state’s 

“constitutional” model at multiple points. 139 F.3d at 1423. We do 

not read Davis to mean, however, that only constitutionally

enshrined models of government are entitled to judicial respect. 

To the contrary, as explicated in Davis, “[u]nder Nipper . . . this 

court must carefully consider the impact that any remedial 

proposal would have on the judicial model enshrined in a state’s 

constitution or statutes.” 139 F.3d at 1421 (emphasis added). As 

such, we do not analyze whether the Georgia General Assembly 

chose its form of government by constitutional or statutory means 

because it makes no difference.16 Compare Ga. Const. Art. IV, § I, ¶ 

I(a), with O.C.G.A. § 46-2-1(a). Either way, Georgia chose the 

statewide electoral model for the PSC, and plaintiffs’ proposed 

remedy would alter that choice in contravention of the principles 

of federalism.

16 We recognize that the district court interpreted the Georgia Constitution’s 

requirement that the PSC be “elected by the people” to require only that the 

PSC be elected—instead of appointed by the governor, for example. See Ga. 

Const. Art. IV, § I, ¶ I(a). In other words, the district court found that the 

specific form of those elections (statewide) is not constitutionally prescribed 

and is rooted only in statute. See O.C.G.A. § 46-2-1(a). As such, the district 

court concluded that plaintiffs’ proposed remedy would not require the 

alteration of Georgia’s chosen form of government. 

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Next, plaintiffs argue in a Federal Rule of Appellate 

Procedure 28(j) letter that the Supreme Court’s decision in Allen v. 

Milligan supports their argument because the Supreme Court

rejected Alabama’s arguments which “echoe[d] the Secretary’s 

state-interest argument.” 599 U.S. at 24–26. Milligan counsels

against a “single-minded view of § 2” and quotes Wisconsin 

Legislaturev. Wisconsin Elections Commission, 595 U.S. 398, 405 (2022),

to provide that a court cannot “improperly reduc[e] Gingles’ 

totality-of-circumstances analysis to a single [Senate] factor.” 

Milligan, 599 U.S. at 24–26. Critically, however, our analysis is not 

“single-minded”; rather, in conformance with precedent, we 

analyze plaintiffs’ proposed remedy and look to a state’s policy 

interests and rationales as one part of that larger undertaking.17

 

Similarly, Wisconsin Legislature does not change our analysis—we 

are not weighing the Senate factors because we do not reach

Section 2’s totality of the circumstances test (i.e., step two of the 

Section 2 analysis once the Gingles preconditions are satisfied).

Rather, we go no further than the first Gingles precondition as 

interpreted by binding Eleventh Circuit precedent. See League of 

Women Voters of Fla., Inc. v. Fla. Sec’y of State, 66 F.4th 905, 943 (11th 

Cir. 2023) (describing our binding commitment to our Circuit’s 

precedent). At this first step, we conclude that plaintiffs’ lack of an 

adequate remedial proposal means that their claim cannot proceed. 

17A state’s interest, however, is not infallible. See, e.g., SCLC, 56 F.3d at 1297 

(“[T]hese interests outweigh whatever possible vote dilution may have been 

shown in this case.”). 

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See Milligan, 599 U.S. at 18 (“To succeed in proving a § 2 violation 

under Gingles, plaintiff must satisfy three preconditions.” (italics 

added) (quotations omitted)). 

Finally, plaintiffs argue that other evidence—such as 

testimony from other commissioners that their duties would not 

change and testimony from the “long-time director of the 

Secretary’s Center for Election Systems” that transitioning to 

single-member districts would be feasible—proves that “switching 

to single-member districts would not even affect the 

commissioners’ day-to-day work.”18 As to whether the PSC will be 

affected by the potential change in electoral format, the district 

court dismissed the State’s interests, such as its “linkage” concern

(i.e., its interest in promoting accountability by having an official’s 

territorial jurisdiction mirror his electoral base). But the district 

18 Despite their own reliance on lay opinion testimony, plaintiffs also argue 

that PSC Chair Pridemore’s “lay opinion” regarding the State’s policy interest 

in maintaining its statewide election system is insufficient. The district court 

agreed, finding that Pridemore’s testimony was “not tethered to any objective 

data” and “lacked foundation.” It is unclear to us what “data” could be offered 

to better support Georgia’s policy interests. To the extent that the district 

court preferred “arguments buried in legislative history” over Pridemore’s 

testimony, we disagree that such forms of evidence would be more 

compelling or instructive. All in all, we understand the principal reasons that 

Georgia adopted a statewide elected PSC were a concern for avoiding conflicts 

amongst the PSC’s commissioners in order to achieve cohesive utility policy 

that favors Georgians in each region of the State equally and the desire to 

dodge the “home cooking” problem (issues that we have highlighted as 

important in our precedents). We find these rationales are properly 

considered. 

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court’s reasoning was premised on discounting our Nipper line of 

precedent because those cases concerned judicial elections. We 

have already explained how this conclusion rests on a mistake of 

law. See Jones, 57 F.3d at 1022 (“We may correct a district court’s 

errors of law and its findings of fact based upon misconceptions of 

law.”). And because the district court also mistook other critical 

parts of our law—including our Circuit’s emphasis on Gingles’s first 

precondition and the effect that federalism and our precedent have 

in a novel Section 2 case—we must reverse. Id.

IV. Conclusion

The Georgia General Assembly determined that the State’s 

PSC—a constitutionally created state commission with statewide 

authority and statewide responsibilities—should be elected 

statewide. Georgia chose this electoral format to protect critical 

policy interests and there is no evidence, or allegation, that race 

was a motivating factor in this decision. On the facts of this case, 

we conclude that plaintiffs’ novel remedial request fails because 

Georgia’s chosen form of government for the PSC is afforded 

protection by federalism and our precedents. In simple terms,

plaintiffs have failed to propose a viable remedy and cannot satisfy 

the first Gingles precondition as we understand it. Because the 

district court made mistakes of law, we reverse.

REVERSED.

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