Prop 3 Proponents Question Prop 4 Legality
Civil rights attorney and two minority groups
say federal preclearance for 8-2-1 is unlikely
by Ken Martin
© The Austin Bulldog 2012
Posted Sunday, October 21, 2012 4:38pm
A pointed legal question keeps cropping up in the debates between proponents of Proposition 3 (the 10-1 plan for electing council members) and Proposition 4 (the 8-2-1 plan).
Proposition 3 debaters have repeatedly stated that the Proposition 4 hybrid plan will not be able to win federal approval because it will not pass muster under the Voting Rights Act of 1965. Prop 4 advocates insist the 8-2-1 plan would indeed be approved.
It would be good to get past this back-and-forth argument so that voters know whether or not the hybrid 8-2-1 plan has a good chance of being approved before casting ballots for a proposal whose implementation might be doomed. The election is November 6. Early voting starts tomorrow.
The Austin Bulldog sought to get to the bottom of this matter by seeking opinions from a number of legal experts who have significant experience in cases involving the Voting Rights Act. Not everyone contacted responded but many did so.
Although there is no complete consensus on this question, our findings indicate the majority agree on the following:
First, the hybrid 8-2-1 might be able to gain preclearance approval, depending on how the district maps are drawn and how those maps affect ethnic minority communities.
Second, the 10-1 plan has a better chance of approval.
Third, if the hybrid 8-2-1 plan is approved by more than 50 percent of voters and gets more votes that the 10-1 plan, local minority organizations are dead-set on challenging the hybrid plan when the city seeks preclearance approval, as it must under the Voting Rights Act of 1965. And if that doesn’t stop the 8-2-1 plan’s implementation a lawsuit seems likely.
Voting Rights Act controls
The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, provides historical perspective on the Voting Rights Act (VRA):
“Passed in 1965 after a century of deliberate and violent denial of the vote to African Americans in the South and Latinos in the Southwest—as well as many years of entrenched electoral systems that shut out citizens with limited fluency in English—the VRA is often held up as the most effective civil rights law ever enacted. It is widely regarded as enabling the enfranchisement of millions of minority voters and diversifying the electorate and legislative bodies at all levels of American government.
“Congress has reauthorized the VRA five times, most recently in 2006, when both the House and the Senate approved the measure overwhelmingly in a bipartisan manner. Congress conducted over 20 hearings, heard from over 50 expert witnesses, and collected over 17,000 pages of testimony documenting the continued need for and constitutionality of the statute,” the Leadership Conference website states.
The introduction to Section 5 the Voting Rights Act of 1965 states: “Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained.
“This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.”
The Federal Register of February 9, 2011, provided guidance concerning redistricting under Section 5 of the Act: “A plan has a discriminatory effect under the statute if, when compared to the benchmark plan, the submitting jurisdiction cannot establish that it does not result in ‘retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ Beer v. United States, 425 U.S. 125, 141 (1976).”
The Federal Register guidance further states: “… the jurisdiction must establish that its proposed redistricting plan will not have the effect of ‘diminishing the ability of any citizens of the United States’ because of race, color, or membership in a language minority group defined in the Act, ‘to elect their preferred candidate of choice.’”
Texas is one of nine entire states subject to Section 5 of the Act. In addition, designated counties in California, Florida, New York, North Carolina, Michigan, and New Hampshire are also covered by the Act.
Proposition 3 backers press conference
Austin civil rights attorney David Van Os said he sees “a very serious possibility that if the 8-2-1 plan (for electing council members) is adopted by voters, it will not be approved by the Justice Department.”
Van Os was the Democratic Party’s nominee for Texas attorney general in 2006. He is the lawyer who represented the NAACP and sometimes LULAC in connection with a lawsuit he filed in 1984 to invalidate Austin’s at-large system of electing council members. The case lasted five years, involving two trials and two appeals. During those same years voters twice failed to give approval for an 8-1 plan for geographic representation (eight council members to be elected from geographic districts and the mayor to be elected at-large). Both plans were defeated by the same margin of 57-43 percent.
At a Thursday press conference Van Os was accompanied by Nelson Linder, president of the NAACP Austin, and Marcelo Tafoya, Texas state deputy director for LULAC, the League of United Latin American Citizens. The three men are proponents of the 10-1 plan for electing council members (Proposition 4) and have been active in Austinites for Geographic Representation, the coalition that got the plan on the ballot via a petition drive.
All three said in follow-up interviews that if the 8-2-1 plan prevails at the polls then these two minority organizations would submit comments to challenge the eight-district plan during the preclearance process in which plans must be reviewed and approved under the Voting Rights Act.
In a written statement Van Os read at the press conference, he said, “With only eight districts, it will not be possible to draw a valid African-American opportunity district. With only eight districts the best that can be drawn from the African-American perspective is a district in which the citizens’ voting age population is 31 percent African American and 40 percent Anglo, thus depriving African-American citizens of any district with an African-American plurality.”
To have a plurality of voting age citizens, Van Os told The Austin Bulldog, the percentage of population for African Americans must be greater than for any other race.
Based on an analysis supplied by political consultant Peck Young that utilizes census data, Van Os said the 10 district plan would accommodate a district with an African-American voting age population of 38.6 percent, an Anglo population of 33.3 percent, and a Hispanic population of 22.9 percent.
Nevertheless, there is some disagreement among legal experts as to whether eight council districts would be sufficient to win preclearance.
Attorney Steve Bickerstaff
Attorney Steve Bickerstaff, who has represented more than 100 jurisdictions on redistricting matters, told The Austin Bulldog in an e-mail,“Neither a district plan under a 10 single-member system nor a plan under a 10 member mixed system is assured preclerance or objection under Section 5 of the Voting Rights Act.
Bickerstaff is the author of Lines in the Sand (2007), a book about the controversial 2003 congressional redistricting in Texas; co-author of International Election Principles (2009); and author of 25 law journal articles dealing primarily with election law and telecommunications regulation.
“In a jurisdiction with racial voter polarization, preclearance of plans under both systems would likely be difficult because a majority ‘safe’ African-American district of a majority of eligible voters is difficult or impossible to draw. However, Austin has a history of elections in which racial voter polarization has been low or inconsequential. I know that some persons attribute the success of African-American and Hispanic candidates in city elections to a ‘gentleman’s agreement,’ but from a legal standpoint (the federal courts have rejected this agreement as a myth) the consistency of voting by white residents in the City of Austin and County of Travis for minority candidates at every level of government (e.g. statewide, state legislative, county, city and other elections) has shown a lack of racial or ethnic polarization.
“Austin has consistently won preclearance of its annexations and other election changes over the years because of the DOJ’s acceptance of this lack of polarization in the city elections and despite the city’s use of at-large elections in which the vote of racial and ethnic minority groups could be submerged by a polarized white majority. This lack of racial and ethnic polarization by white voters in past elections is the background against which all future single-member district plans will be judged.
“A 10 single-member district system is marginally better than one with eight single-member districts because it allows the greatest possibility for drawing districts in which African-American or Hispanic voters have the opportunity (without depending on substantial crossover vote from the white community) to elect the candidate of their choice. However, I do not believe it is clear that a properly drawn plan under an 8-2-1 system cannot win preclearance.”
When informed of Bickerstaff’s statement, Van Os responded by saying, “He (Bickerstaff) doesn’t think it’s (the 8-2-1 plan) guaranteed to fail preclearance—I didn’t say it’s guaranteed (to fail). I said there’s a very serious chance it won’t pass. We don’t need to take that risk. We can adopt the 10-1 plan. It will clearly get Justice Department approval.”
Attorney Luis Figueroa, MALDEF
Attorney Luis Figueroa of the Mexican American Legal Defense and Educational Fund (MALDEF), was one of three attorneys who on December 1, 2011, testified to the 2012 Charter Revision Committee. Figueroa has been involved in numerous legal cases involving election law and redistricting, and represented the Texas Latino Redistricting Task Force in ongoing lawsuits over the legislative redistricting in 2011.
Figueroa submitted a letter to the council-appointed 2012 Charter Revision Committee that addressed the topic of hybrid plans such as 8-2-1.
“Hybrid plans, which combine single-member and at-large offices, undermine the effectiveness and fairness (of) a single-member district system. Hybrid plans allow for multiple elected officials from one group or one area to be overrepresented at the expense of the city as a whole. Just as at-large systems create barriers for equal political participation, hybrid proposals often dilute the voting strength of communities of interests and ethnic minorities,” Figueroa wrote.
Regarding whether the 8-2-1 plan would pass muster under the Voting Rights Act, in response to The Austin Bulldog’s request, Figueroa stated in a Friday e-mail, “It’s hard to make a prediction on a preclearance action without knowing what the map would (look) like and we generally avoid making predictions.
“Our position as stated in the letter to the Austin Charter Revision Committee has not changed. We continue to support a non-hybrid single member district plan in Austin as stated in our letter and in our testimony to the Committee,” Figueroa wrote.
Attorney David Richards
Attorney David Richards of Richards Rodriguez & Skeith LLP has more than 50 years of legal experience and is considered to be an expert on election law and voting rights. Among his more notable cases was White v. Regester (1973), which established single-member legislative districts for the Texas Legislature.
Richards also testified to the Charter Revision Committee on December 1, 2011, and the following week submitted a letter, which stated, “I heartily endorse the concept of single member district representation. I also heartily endorse the 10-1 plan that is under discussion. Such a plan is, in my opinion, significantly preferable as it is the best means of assuring that minority communities will be adequately and fairly represented on the City Council. Such a plan should also be viewed most favorably by the Department of Justice in a Section 5 submission.”
Richards did not respond to an October 14 e-mail requesting his comments about the legality of the 8-2-1 plan.
Nelson Linder, NAACP
NAACP Austin President Nelson Linder wrote in an October 14 e-mail, “Section 5 of the Voting Rights Act specifically covers changes in election districts due to reapportionment and redistricting as well as switching from an at-large to a single-member district system.
“When a covered jurisdiction submits a plan for preclearance, the burden of proof is on the jurisdiction—not the minority citizens or the Justice Department—to prove that the new plan is free from discriminatory intent and that the new plan does not have discriminatory effect. Failure on both of the above requirements will result in a failure to obtain preclearance,” Linder wrote.
“Clearly, the 10-1 plan is supported by over 30 coalition groups that include a majority of minority organizations that are covered by the Voting Rights Act. We believe that the 8-2-1 plan was actually concocted within the Austin City Council and has almost no minority support that is organizationally based,” he wrote.
“Frankly there is no credible premise for an 8-2-1 plan. It’s an idea with a basis that is absent of evidence that support actually exists. In fact, it will not be difficult to prove that the Austin City Council floated the idea to attempt to undermine the validity of the 10-1 proponents. The inclusion of two at-large districts, we believe, supports our perspective that inequity and unequal representation would continue to exist within the Austin City Council.”
In a follow-up interview Friday, Linder said, “If the people pass the 8-2-1 plan, we will wind up in court.”
Attorney Richard Jung
Attorney Richard Jung of Jung Ko PLLC, a firm that specializes in business immigration solutions, is a strong advocate for the 8-2-1 plan in Proposition 4. Jung is campaigning for passage of Proposition 4 with Austin Community for Change. He researched the question of the 8-2-1 plan’s legality and came to a far different position.
Jung outlined his conclusions in an October 14 e-mail, stating, “The actual test is that the 10-1 plan or the 8-2-1 plan must be shown not to cause retrogression in minority political opportunity, by showing that there is at least the same amount of minority political opportunity in the proposed new system as in the existing system. …
“If the 8-2-1 plan draws a district with 30 percent African-American population it is a marked improvement over the current 8 percent. Similarly, if the 10-1 plan draws a district with 38 percent African American population, it is a marked improvement over current 8 percent. Given this logic, both would receive preclearance because there would be a huge improvement in African-American political opportunity in the new district over the old at-large position.
“There is absolutely nothing in the requirements that would mean that an increase from 8 percent to 30 percent is unacceptable while an increase from 8 percent to 38 percent is acceptable,” Jung wrote.
“In addition, the Supreme Court has been very busy watering down the requirements for an ‘opportunity district’ to the point that it no longer means a district with 50 percent or more minority voting age population, or even a district where minority voters ‘have a good chance to elect candidates of their choice’ (crossover districts). In fact, in a 2009 opinion about North Carolina redistricting, the Supreme Court ruled that there is no duty to draw voting districts that would elect black candidates in areas where blacks were less than a majority.”
“So, when AGR representatives speak about DOJ requiring an African American opportunity district, they are simply making up facts and misleading the public. There is no requirement for a city like Austin with no African American majority district to draw an African American opportunity district at all. The only requirement is not to retrogress from the current system and if we use AGR’s measuring stick of percentage of African American population in a district, both 8-2-1 and 10-1 will pass,” he wrote.
Consultant Peck Young
Veteran political consultant Peck Young, who volunteered to advise Austinites for Geographic Representation, told The Austin Bulldog he prepared Voting Rights Act submissions from 1973 to 2004 that were submitted to the Justice Department. “I never had one rejected—ever.”
Young disputes Jung’s conclusions, saying that no one who’s campaigning for the 8-2-1 hybrid plan “has ever made a Voting Rights Act submission.”
Young added, “We’ve drawn demonstration maps designed to show what you can do for eight districts and for 10 districts.” With eight districts, he said, “You cannot draw an opportunity district for blacks. … We drew the most pro-African American map you can draw and with 10 districts you can draw the opportunity district required by law.”
8-2-1 thumped in 2002 election
This article does not address the political possibility of getting voter approval for the 8-2-1 plan. In the May 4, 2002, election—the last time voters were asked to consider geographic representation—the 8-2-1 plan was on the ballot as Proposition 3 and was defeated 58-42 percent.
Voters have rejected various proposals for geographic representation six times from 1973 to 2002.
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s coverage by making a tax-deductible contribution.
Related Bulldog coverage: This is The Austin Bulldog’s 34th article covering issues and activities pertaining to proposed changes to the Austin City Charter.