Redistricting expert says schedule does not allow enough time for federal approval process
City Auditor Ken Mory and his chief of investigations, Jason Hadavi, briefed the Austin City Council in this morning’s work session, including proposed dates for accomplishing major tasks related to establishing 10 council districts, as approved by voters November 6. (The core of the briefing is contained in the City Auditor’s Slides for City Council Briefing.)
The briefing took place in advance of tonight’s related public forum that starts 7pm in One Texas Center, 505 Barton Springs Road, Room 325. (To see a map, click here.) The purpose of the forum is to encourage participation in the Citizens Independent Redistricting Commission (CIRC) and secure a large and diverse pool of qualified applicants.
The schedule proposed by the City Auditor indicates that the CIRC would adopt a final plan for the 10 geographic districts by April 1, 2014.
Attorney Steve Bickerstaff, who has represented more than a hundred jurisdictions on redistricting in his long legal career, told The Austin Bulldog that April 1, 2014, is not soon enough.
“There is a gross underestimation by the city’s legal counsel of the time it takes to do districts properly and obtain preclearance,” Bickerstaff said of the proposed schedule.
Preclearance is the federal approval process used to review any changes in voting procedures. Voting changes in covered jurisdictions may not be used until that review has been obtained. Texas is one of nine entire states subject to Section 5 of the Voting Rights Act. In addition, designated counties in California, Florida, New York, North Carolina, Michigan, and New Hampshire are also covered by the Act.
“This timeline does not allow enough time for preclearance,” Bickerstaff said. “The Department of Justice has 60 days” to review an application for preclearance under Section 5 of the Voting Rights Act ”and may not complete it for another 60 days. Preclearance can take five or six months, although I don’t think it will (for this plan).”
Bickerstaff’s concerns over the time the auditor’s proposed schedule provides for preclearance is at direct odds with advice given to the City Council in this morning’s work session by Assistant City Attorney John Steiner.
“Everything should go as expected and the election should proceed,” Steiner told the council. “I don’t think anything in the auditor’s plan will adversely affect our preclearance plan. Noting in the 10-1 plan is retrogressive, which is essential for preclearance under Section 5.”
April 1, 2014, also appears to be too near the council elections scheduled for November 2014. The City Charter authorizes candidates to start soliciting campaign contributions six months before the election.
For the November 2014 elections that means candidates could start raising money in early May 2014.
It could be fatal to the election if the districting plan approved the CIRC encountered problems in obtaining federal approval of the plan during the election campaigns in which the candidates for 10 council districts will be vying to represent their respective districts.
Ordinance proposed for transition
The Proposition 3: Ordinance No. 20120802-015 was drafted in keeping with the next council elections scheduled to be held in May 2014. Voter approval of Proposition 2, however, moved the elections to November 2014.
Proposition 2 also changed term lengths to four years (vice three currently), limited service to two terms (vice three), and required that staggered elections be held in November of even-numbered years.
The Proposition 3 Ordinance provided flexibility for adjusting dates if elections were moved from May to November. But implementing the adjusted dates will require the City Council to enact a supplemental ordinance to include the details needed to govern the transition.
Bickerstaff and attorney Fred Lewis drafted a proposed ordinance to implement the transition to single-member districts, even-year November elections, and staggered four-year terms.
“The implementation ordinance is needed soon, in my opinion,” Lewis told The Austin Bulldog. “Everyone needs to know what the rules are.”
“It shouldn’t be controversial,” Lewis added.
Bickerstaff sent a cover letter and the proposed ordinance to the mayor and council members November 29. (To see these records click on: Steve Bickerstaff Letter and Proposed Ordinance.)
“Most members of the Council were publicly ambivalent about Proposition 3 perhaps because few, if any, members of the Council thought it would pass,” Bickerstaff’s letter states. “Some members of the Council openly opposed passage of Proposition 3. As a result, some of the supporters of Proposition 3 are now fearful that the city council will try to sabotage implementation of the proposal.”
To allay such concerns and prevent possible criticism, Bickerstaff urged immediate action by the council to further the transition by submitting Proposition 3 itself for preclearance under Section 5 of the Voting Rights Act and request expedited consideration.
This preclearance would address the use of the Citizens Independent Redistricting Commission. (This preclearance is separate and apart from the later preclearance that would be needed to gain federal approval of the council districts the Commission draws.)
Bickerstaff said this is a necessary precaution to approve everything in the Proposition 3 City Charter amendment. This step is needed because “no other city in the country has gone from an at-large system to single-member districts with a Citizens Independent Redistricting Commission under Section 5 of the Voting Rights Act.”
San Diego used a similar process to transition to single-member districts but that city is not subject to the Voting Rights Act, Bickerstaff said.
The mayor and 10 council districts will be up for election in November 2014. The proposed ordinance would establish a process by which to set up staggered terms for elections in 2016 and later years. The proposed ordinance directs the city clerk to establish a random process for drawing lots to determine which five council members elected in 2014 would get four-year terms and which five council members would get two-year terms.
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.’”
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Related Bulldog coverage: This is The Austin Bulldog’s 42nd article covering issues and activities pertaining to proposed changes to the Austin City Charter.