OPINION AND ORDER
STEVEN D. GRIMBERG, District Judge.
This matter is before the Court on Plaintiffs' motion to enjoin Defendant, the Secretary of State for the State of Georgia, from qualifying candidates for the 2022 election for commissioner to the Georgia Public Service Commission (PSC) until a final judgment in this case has been entered. The motion has been fully briefed and the Court held an evidentiary hearing on February 25, 2022. After careful consideration, the Court concludes that Plaintiffs have not carried their heavy burden to show that an injunction should issue. Accordingly, the Motion for Preliminary Injunction [ECF 101] is
The Court has already issued an Order ruling on the parties' cross-motions for summary judgment, which addresses the factual and procedural history of this litigation.
II. Applicable Legal Standard
To obtain preliminary injunctive relief, Plaintiffs must show "(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury . . . outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003). Such injunctions are "an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to the four requisites." McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). Moreover, when a party seeks to affirmatively enjoin a state governmental agency, the "case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own affairs." Martin v. Metro. Atlanta Rapid Transit Auth., 225 F.Supp.2d 1362, 1372 (N.D. Ga. 2002) (citing Rizzo v. Goode, 423 U.S. 362, 378-79 (1976)).
Plaintiffs assert that they have already established the three Gingles preconditions and that the Eleventh Circuit recognizes "it will be only the very unusual case" in which a Section 2 violation cannot be established when those conditions have been met.
A. Substantial Likelihood of Success
1. Plaintiffs' Proposed Remedy
Plaintiffs have not shown that their proposed remedy is feasible. "[A] plaintiff must propose a viable and proper remedy in order to establish a prima facie case under Section Two." Davis v. Chiles, 139 F.3d 1414, 1419-20. See also id. at 1423 (citations omitted). Although Plaintiffs' counsel characterized the proposed remedy as a factor to be considered under the totality of the circumstances,
Moreover, a viable remedy is necessary for Plaintiffs to have constitutional standing. If the remedy is not feasible, Plaintiffs have not suffered an injury that gives them standing to sue.
Nothing presented by Plaintiffs during the hearing resolves those mixed issues of fact and law that the Court found inappropriate for resolution at summary judgment.
2. Totality of the Circumstances
To find a Section 2 violation, the statute requires that the Court consider the totality of the circumstances. 52 U.S.C. § 10301(a). And the Court has already held that it cannot appropriately evaluate the totality of the circumstances before trial.
The Court cannot conclude based on the evidence presented that Plaintiffs have shown a likelihood of success under the totality of the circumstances. Specifically, at present, evidence related to at least the third, sixth, and eighth Senate Factors do not currently weigh in Plaintiffs' favor. This does not mean Plaintiffs will be unable to satisfy these factors at trial. But that is a determination that requires a complete record—and that record is not yet complete.
Third Senate Factor: The Extent to Which the State Has Used Voting Practices or Procedures that May Enhance the Opportunity for Discrimination Against the Minority Group.
Plaintiffs point to the State's use of staggered terms, a majority-vote requirement, and unusually large voting districts for PSC elections as practices that increase the chances for discrimination against Black voters.
Even if the Court were ultimately to find a violation of Section 2 and require PSC elections to take place using single-member districts, no one has challenged the use of staggered terms or the majority-vote requirement with regard to the PSC. That is, Plaintiffs have never argued that the remedy the Court should implement must un-stagger the terms PSC members serve or require a plurality vote.
Sixth Senate Factor: Whether Political Campaigns Have Been Characterized by Overt or Subtle Racial Appeals.
Plaintiffs pointed to two recent examples of discriminatory appeals in the 2020 exogeneous elections for Georgia's United States Senate seats.
Eighth Senate Factor: Whether There Is a Significant Lack of Responsiveness on the Part of Elected Officials.
During the hearing, two of the Plaintiffs (Brionte McCorkle and Rev. James Major Woodall) credibly testified about the PSC's lack of responsiveness to Black voters. They specifically identified several areas in which such a lack of responsiveness was evident to them: climate change and other environmental justice matters; rate increases and the utility disconnection moratorium triggered by the pandemic; and cost overruns and construction delays related to Plant Vogtle.
None of this testimony, moreover, necessarily demonstrates a lack of responsiveness to Black voters in particular. Rather, many of these issues are ones that would seem to be of special concern based on socio-economic factors rather than race. Plaintiffs did not present any evidence showing that the effect on Black voters is somehow different from the effect these issues would likely have on anyone who is economically disadvantaged.
B. Irreparable Harm
The parties do not appear to dispute that vote dilution which contravenes Section 2 can cause irreparable harm. But it is by no means clear here that such a violation has occurred or is substantially likely to occur. Although it is unnecessary for the Court to assess whether Plaintiffs face irreparable harm in light of that conclusion, evidence presented during the hearing demonstrates that Plaintiffs do not face imminent irreparable harm absent an injunction.
As discussed during the hearing on Plaintiffs' motion, this case is already set for a bench trial to begin on June 27, 2022.
Because Plaintiffs have not carried their burden to show a substantial likelihood of success on the merits, and will not suffer irreparable harm absent an injunction at this stage, the Court