May 15 2012

About That Motion to Intervene…

Posted by Steve Ross in Shelby County

Scenario 2J - Click to enlarge

Yesterday, the Commercial Appeal published an article about my decision to wade into the County redistricting issue.

The decision wasn’t a difficult one. Ultimately, this comes down to the way we are represented in our County government, and the inability of that County government to do something that is, at best, an administrative task.

To my way of thinking, this failure is indicative of other problems that we have faced for a very long time. It reflects a long pattern of inaction or worse, legislative insanity (doing the same thing over and over again expecting a different result) which has played a larger role in the persistent problems we, as a community are facing.

My decision to seek to intervene in this suit reflects my personal frustration at the Commission for inaction on this and many other issues critical to the community.

Background

Every 10 years, every legislative body in the country that has specific districts is required to change the way the districts are drawn to reflect changes in population. These bodies are required to use Census data to ensure people have adequate representation in accordance with the concept of one man one vote.

This process, known as redistricting and reapportionment, is something the public rarely knows much about. In fact, in our state government, the plans that created the new State House, Senate, and US Congressional districts were so secret, all but a few legislators knew anything about the proposal before the start of session in January. From there, the plan was rammed through committee and the overall body with little discussion…for the most part.

For County and City governments, this must be accomplished by December 31, of the year the Census is released, or before the first election of the new decade.

The City Council reapportioned their districts just days before the filing deadline, to the consternation of many. The County Commission, by contrast, doesn’t have an election using the new districts until 2014. However, they are still required by state law to have the districts complete and approved by 12/31/11. Obviously, this did not happen, which led to a suit originally brought by Commissioners Bailey, Rtiz, and Roland…though the latter two have since withdrawn.

7 or 9, That Is the Question

State law plays a huge role in our County. Were it not for the state, Shelby County would not exist. We became a county in November of 1819 thanks to state action after the founding of Memphis on May 22, 1819. This relationship makes it clear that state law has supremacy over county law (not to mention all the bills passed in the state legislature over the past several years).

In addition to the 12/31/11 deadline imposed by state law on redistricting, there is also a provision that says a “majority vote” is the standard by which passage would be approved. 2J, pictured above, received at least 7 votes on all three readings of the ordinance (2nd reading it received 9).

However, our County charter requires 9 (or a super-majority) votes on third reading to pass any redistricting or tax change. This is where the conflict, from my perspective, gets interesting.

Because state law is “supreme” over county law, and because the County was in violation of state law when 2J received 7 votes on 3rd reading, I argue state law should remain “supreme” over county law. The result of this would be that 2J should become the new scenario for County Commission districts because it received the required number of votes while the County was in violation of state law.

Does that mean the County Charter is invalidated? No. Depending on how when the judge rules, it could mean 7 votes carries the day on redistricting, just like almost every other ordinance the County Commission passes.

Worries About The Charter

There are some who worry that if the state courts remove the super-majority standard for redistricting, other issues requiring a super-majority (namely tinkering with the tax rate) would somehow be impacted. I don’t really see how this is an issue.

First, the two couldn’t be more different. The tax rate is something that happens nearly every year through the budget process. Since 2004 the County Tax rate has remained consistent, even dropping a little in 2010. No one is challenging the 9 vote (super-majority) standard for changing the tax rate. Nor is anyone arguing that if one super-majority vote is made invalid, another must also be. Quite the contrary. State law says little about voting thresholds for County tax rates. Therefore, this shouldn’t impact that section of the charter at all.

Second, because the mention of a simple majority in state law only applies to the act of redistricting, it will be the only part of the charter to be impacted.

Desperately Seeking Nine

Last week, the County Commission heard the first of three readings on the redistricting ordinance again, this time brought by Terry Roland. Roland believes a ruling that seven is enough will somehow invalidate the charter and all super-majority provisions. That’s just not very likely for all the reasons stated above.

Last Monday the ordinance, which also seeks to enshrine map 2J, received 9 votes. There was talk of some special called meetings to speed the process along. The hope is to beat the judge to the ruling punch. So far, I haven’t seen any new meetings called, so I have little reason to believe they will. If they don’t then it will be at least 3 weeks from today before they get to a 3rd reading vote. Maybe the judge will wait that long, maybe not. Who knows?

Either way, it seems clear that 2J is the plan that will be adopted.

Why 2J?

To be perfectly honest, 2J is not my first or even second choice. So you’re probably asking yourself why I would go to the trouble to seek to intervene on a plan that I’m not even that big of a fan of?

The reason is actually simple. This is a representative democracy, not Burger King. I understand you can’t always have it your way. Majority rules, and the majority voted to approve 2J.

Technically, 2J meets all the requirements I had on an acceptable plan: it has single member districts, it reflects the racial diversity of our county, and it does so without splitting up too many neighborhoods.

Personally, I don’t like that Midtown is effectively split in two…North and South of Poplar. I would have liked more of a “Midtown district”. But that’s not in the cards this time. Maybe next time.

Conclusion

This really comes down to duty. The County Commission has a duty to uphold, and a big part of that duty includes upholding state law. For reasons that only the dissenters know, this process has been dragging along since September. I think this, and many other recent events tells us something about the state of the County Commission. I don’t think it tells us something good either.

Redistricting is a political process. There are political interests that will come into play. Compromise is important. I think 2J represents a lot of compromise, quite honestly. Reasonable people must come together to pass a reasonable plan. I think there are many such plans that have been introduced, including 2J, which received a majority vote on three readings back in March…after the state deadline.

But no plan has received the County Charter required 9 votes on third reading…yet, even though 2J received 9 on second reading. I can’t explain why those two votes changed at the last second. Keeping 9 votes might have resolved the issue without a ruling, rendering the lawsuit largely moot.

Of course, that’s why they’re trying so hard to show 9 votes now.

It remains to be seen if the courts will make a decision before the Commission gets to a third read on this issue. At the last meeting, one of the attorneys for the Commission indicated the Judge was losing patience. We’ll just have to see if his patience holds for three weeks.

The ball is in his court.