City: Referendum is void
Posted: Wednesday, October 8, 2014 9:45 pm | Updated: 10:02 pm, Wed Oct 8, 2014.
A 2010 referendum changing Decatur’s form of government is a “dead letter,” the city argued in a federal court motion last week, because the city failed to obtain preclearance from the U.S. Department of Justice.
The city’s motion seeks to dismiss the lawsuit filed by Gary Voketz on the ground the council-manager form of government — required under state law by the referendum vote — could not be implemented unless the Justice Department ruled it was legal under the Voting Rights Act.
Because the city withdrew its request for such a ruling before the 2012 election, the brief argues, the referendum is void.
“The people of Decatur have a right under the Alabama Constitution to change their form of government,” said Voketz’s attorney, Carl Cole. “The people of Decatur voted to do that, and the leaders of Decatur are fighting tooth and nail to deprive the people of that right.
“I never in a million years thought these guys would undermine state law and hide behind the federal government to do it.”
Voketz has until Oct. 24 to respond to the city’s motion.
In October 2011, the city submitted a plan for changing to a council-manager form of government to the Justice Department for preclearance.
“Preclearance” was a procedure in which the Justice Department ruled in advance that election changes were legal under the Voting Rights Act. In January 2012, before the Justice Department issued a ruling, the city withdrew the submission. At the time it withdrew the request, the City Council passed a resolution stating it had no information that “will justify preclearance of the submitted plan.”
“This withdrawal of the manager-council submission … had the same prohibitory effect as would have had a formal (Justice Department) objection to preclearance,” the city argued in its brief. “As a matter of federal law, the council-manager form of government and method of election were unenforceable.”
The referendum triggered the state Council-Manager Act. Under that law, the city would have to hire a city manager and drop from five to three council districts. One of two at-large council members would serve as the mayor, but the appointed city manager would serve as the chief executive.
According to the city, the drop to three districts would require eliminating a district with a black majority, which the city argued would violate the Voting Rights Act.
The October 2012 city elections — for a mayor and five council members — proceeded as if the referendum had not taken place.
The City Council had another chance to seek Justice Department approval when Mayor Don Kyle, honoring a campaign pledge, requested a council vote to seek preclearance of the change in government from the Justice Department. In a March 2013 meeting, Council President Gary Hammon and Councilman Chuck Ard voted to re-submit the three-district plan to the Justice Department. The resolution failed when councilmen Billy Jackson, Charles Kirby and Roger Anders opposed it.
Last month, the city and Voketz reached a settlement in which Voketz agreed to dismiss the portion of his lawsuit that alleged the mayor and each City Council member are serving illegally, a claim that had blocked the city from borrowing money or issuing bonds since Voketz filed the lawsuit in February. In return for the dismissal, the city agreed to pay Voketz’s attorney fees if he wins the case.
After the settlement, Voketz filed an amended complaint that claims the city is required to hold elections that conform to the Council-Manager Act. Even if the law violates the Voting Rights Act, the complaint said, the court has authority to amend the act to include five districts and thus preserve a black minority in one district.
There is no inconsistency in the city arguing its own failure to obtain preclearance nullified the referendum, according to the city’s attorney, because the city was correct in its judgment that the Justice Department would not have precleared the change to a council-manager form of government.
“It was clearly in violation of the Voting Rights Act,” said George Royer, of Huntsville. “It was withdrawn from preclearance because it was clear there was no way it would not violate the Voting Rights Act, and there was no way it could be precleared. This is not an inconsistent position. If the referendum is unenforceable because it wasn’t precleared, then that’s the end of the case.”
In the city’s brief, Royer argued it was not just the drop from five to three districts that required preclearance. The change from a mayor to a city manager as the chief executive also required Justice Department approval.
It is too late for the city to obtain Justice Department approval. A June 2013 U.S. Supreme Court involving Shelby County ended the preclearance procedure. Moreover, the city argued in its brief, the Council-Manager Act imposed a deadline for implementing the change in government that the city did not meet.
“Because the change to a council-manager form of government did not receive preclearance before its statutory implementation date in 2012, the 2010 referendum now is a dead letter,” the city argued in its brief. “Neither the change to a city manager nor the change in electing council members is enforceable today, as a matter of federal law.”
Royer said the city would be placed in an untenable position if Voketz won the lawsuit and the federal court forced a change to a council-manager form of government, even if the new government had five districts and maintained a black majority in one.
“It would leave the city in the position of having someone else come along who opposes a council-manager form of government and saying, ‘No, you can’t do that, because the council-manager form of government was never precleared,’ ” Royer said. “The city would still be open to subsequent litigation by people who are opposed to the notion of a city manager.
“This motion seeks to resolve that issue once and for all at the outset, so two years down the road you don’t have to confront this issue.”
A decision by the Birmingham federal court would not protect the city, according to the city’s brief, because the court has no authority to preclear election changes under the Voting Rights Act. Only the Justice Department and the U.S. District Court in the District of Columbia had that authority, and it ended with the Supreme Court’s Shelby County decision.
“They now say that because the Council-Manager Act wasn’t implemented in October 2012, it can never be implemented,” Cole said. “They ignore the fact that the reason it wasn’t implemented, and the reason we never had an answer from the Justice Department, was because those same people with a vested interest withdrew it, saying there was no way it could be precleared by the Justice Department.”
Eric Fleischauer can be reached at 256-340-2435 or firstname.lastname@example.org. Follow on Twitter @DD_Fleischauer.