A Hybrid District System for Austin is Unconstitutional, Part 2

10-1 is the Winning Plan

Now that the Charter Revision Commission (CRC) has voted on a geographic representation plan for November's ballot, we're one step closer to having true representation in our City. The CRC voted to endorse the independent citizens commission Austinites for Geographic Representation (AGR) incorporated into its plan, with a few minor additions in terms of the qualification process.

Seeing that "Eight Isn't Enough," the CRC saw fit to vote on a 10 district plan. The contention came in on the question of having a hybrid system. In the end, they voted we shouldn't; and endorsed a straight 10 districts + a mayor ("10-1"). One of the commissioners voting for a hybrid ("10-2-1" with 2 at-large seats), remarked she didn't think the voters wouldn't support those two additional offices, yet oddly voted for that plan anyway.

What Council will do with the CRC's recommendation remains to be seen. They could accept it as is - but have almost always, in the past, put something different on the ballot. A handful on the commission and in the public, however, are still married to the concept that we can't have "bold change" - wanting to maintain the status quo to a degree. They want to keep some at-large seats, and will continue to lobby council to do just that. If another plan is supported by council in the end, that will mean two plans will be presented to voters in November, assuming AGR gets enough signatures to put the 10-1 plan on the ballot.

But as it stands, a majority of the community and CRC commissioners involved in these efforts, to date, support the 10-1 plan with an independent commission. Councilmembers wanting to be re-elected would be fool-hearty to go against that. Two options on the ballot means votes will be split, and we'll fail yet again to get representation.

Case(s) in Point

Maintaining at-large seats won't pass a legal challenge here - and MALDEF has already promised that challenge. Since 1990, in Texas, we've seen two critical court cases on hybrid systems go to the federal district court, be ruled unconstitutional, then upheld at the appellate court level as such.

In some instances, like with Austin ISD, hybrid systems do make sense and don't dilute the minority vote. In other cases, like in Houston, the hybrid system was put in place long before legal precedent was set that it does dilute those votes, and/or there are other major factors that change the equation (like Houston not having zoning). The Memphis example often referred to in the 8-4-1 proposal (where "4" are "superdistricts" - or at large for one region of the city, like east or west of I-35) works because Memphis has a 64% African-American population! This simply cannot be compared to Austin's 7.4% where drawing an African-American majority district is not feasible (although at 10 districts, drawing an African-American "opportunity" district is).

These federal cases, staged in Texas, tell us that given our population mix and history with a lack of acceptable opportunities to elect minorities, we can't have hybrids and keep them even if they're voted in. Since the DOJ won't "pre-clear" a ballot measure, we have to make a good faith attempt to avoid a lawsuit.

The first case of note was in Dallas, TX in 1990 and the other, in our very own back yard: the Del Valle ISD case in 1992/93 - which shares much of eastern Travis County with the City of Austin, so we're dealing with many of the same communities of concern.

Del Valle ISD

In Del Valle, the school board previously served fully at-large and the district was over 75% African-American and Hispanic population combined. Those communities filed a lawsuit and the district's response was to propose a hybrid system (5-2-1). The courts ruled that it was unconstitutional to continue the at-large system's practice of "diluting the minority vote." A straight 9 district system was chosen as the correct solution. (Disclosure: I am the Trustee for Single Member District 2).

Dallas' Gentleman's Agreement

In Williams v. City of Dallas, a federal court ruled that the three at-large seats in the Dallas City Council’s mixed system diluted the minority voting strength and therefore violated Section 2 of the Voting Rights Act. Under the "8-3 system...no African-American and only one Hispanic had every won an at-large seat, although at the time, Dallas was 42% minority." The court investigated Dallas' version of the gentleman's agreement – where minorities were elected, they wrote, "only with the permission of the white majority..." (sound familiar?).

They also noted severe racial tensions relating to police brutality and other issues as being indicative of "some of the white at-large councilmembers simply ignoring the minority areas of the City." It held that because of "substantial economic disparities between white and minority residents," it was not possible for minority candidates to raise the large sums of money from their own communities that are necessary for competing in at-large elections.

Attorneys Warn Austin

Besides Luis Figueroa of MALDEF telling the CRC they plan to sue if a hybrid system is put on the ballot and voted in, other attorneys have weighed in, including Dave Richards and Terry Meza, from Arlington, TX. Ms. Meza submitted a letter and had a colleague verbally present her warning to the CRC that Austin shouldn't head down the "same path of heartache" as Dallas did with a hybrid system.

See Jacob Limon's testimony, at 27:00 minutes in on "Item 3A, Part 1 of 2." He tells us this is still active case law and of the successes with a straight district plan in Dallas. Depiste Vice Chair Ann Kitchen's assertation the letter doesn't provide enough information, it does. It summarizes precisely what cases the court would consider in ruling on a legal challenge here. It clearly explains Austin would likely waste a great deal of money in defending a hybrid system.

Central Texas - Majority Straight District

San Antonio put a 10-1 plan in place in the 1970s, almost 20 years prior to the federal cases. The same aspect of voter dilution weighed into that decision then. They saw the writing on the wall.

Since the federal cases, smaller communities across the state, and in central Texas, like Kyle, Georgetown, Taylor, Cibolo and Boerne have switched to straight district systems, knowing that any hybrid plan would cost them money they don't have on a legal challenge.

Let's hope Austin City Council is as wise.

A Hybrid District System for Austin is Unconstitutional, Part 1

The debate in Austin about how to elect our City Council has recently shifted from, "should we change from an at-large to a geographic districting system?" to "which districting system should we put on the ballot this November?"

Most everyone seems to agree...the Charter Revision Commission (CRC), the City Council itself, and the majority of the community...that it's inevitable - finally - after all these years and six botched ballot attempts to pass geographic representation to end the racist, at-large, "gentlemen's agreement" system.

The question now is: how many single member districts do we need, and do we need to keep any at-large seats (beyond the mayor's)?

On the table are plans ranging from 6 to 10 districts, with many incorporating at-large seats, which are referred to as "mixed" or "hybrid" systems.

Eight Isn't Enough

6- and 8- seat plans very likely won't pass Department of Justice (DOJ)/Voting Rights Act (VRA) muster. In Austin, the two minority communities the VRA will address are the African-American and the Hispanic communities.

After this last census, with our incredible growth (we have 150,000 more people since last we voted on a plan: 8-2-1 in 2002) AND our combined minority percentage now topping 50% (the minorities are in the majority), but where African-Americans have seriously declined in population (7.7% now), a map simply can't be drawn to create one viable, non-gerry-mandered African-American voting opportunity district with less than 10 districts.

With the Hispanic community, only 10 offers enough percentage of the council seats to get us near the Hispanic percentage of our city (35%) with 3 districts viably being drawn for Hispanic opportunity districts...while that only accounts for 30% of the dais, an 8 district plan would only offer 2 opportunity seats, which is 25% of the dais: the DOJ will accept a 5% window, but likely not a 10% one.

The VRA relates to "opportunity" districts though...not a straight population percentage. This means the "opportunity" for an African-American or Hispanic to be elected with more than the single constituency working together to elect them.

Simply put, anything under 10 may well be tossed out by the feds after-the-fact, no matter what the public voted on.

The straight 10-1 plan with a rider for an independent citizen's commission is supported widely (a petition drive is in the works to certify it be put on the ballot). All other plans floating out there fall short and lack the caveat for the citizens, NOT the politicians, to draw the maps.

To Hybrid or Not to Hybrid?

Keeping at-large seats is being argued as necessary because A. it will be a "relief valve" for those constituents who aren't getting proper response by their district representative/that these at-large folks will play "referee" to the district members who supposedly will pit their needs against each other -and- B. it will allow for "slower change" - a way to "step up" to a straight single district plan, later in our future.

The real reason it's being argued for by liberal, central city Democratic party power brokers is they want to maintain their white, liberal, central city power base - their "two district" plan, where one small section of town elects and houses almost all of our local representatives, and the rest of the city, the "other" district, can continue to fight for scraps.

Their publicly-stated reasons are merely cover, and lack credibility, at that.

"Relief Valve" For Whom?

The "relief valve" argument is a red herring. In what universe would another district councilmember not be approachable if yours wasn't on any given issue? None. Politicians and power brokers alike all know the whole community can organize around any given councilmember, and get the vote out for them OR for a challenger in that district, even if only a segment of that community can cast a vote for them. We do that now and will continue to do so on campaigns in other districts for the greater good (i.e., I live in Travis County Precinct 4 but am working hard on a critical Precinct 1 campaign).

All members vote on everything before them, so you have to seek all their votes anyway. Like at the state legislature, rarely, if ever, does a lobbyist approach only their geographic representative on an issue, and sometimes they never even see them. You go to the representative(s) who has/have sway on a particular committee related to your issue.

Oh, and if your rep. won't respond to your need or votes against it, then you spend the next campaign season working to replace her, and rally all your friends in your district AND other districts to help pound the pavement. That's democracy.

Bored with Wards

As a Del Valle ISD school board trustee, 98% of what I do/what I vote on relates to the district as a whole: none of us on the board see our districts as "wards." I'm merely specified to represent a portion of the district as an initial "go-to" person for those folks or a watchdog, of sorts, for anything cropping up in my little corner that I should then bring to the whole board.

I campaign District 2-wide, but I communicate with and represent parents, teachers, staff, students and fellow board members Del Valle-wide.

Raul Alvarez, former city councilmember, spoke last week at the CRC meeting and said as much...that there's very few "ward" issues out there, and they're minor, comparatively. Sidewalks are not what representatives fight over, because they need sidewalks in their districts too. They fight over the need for water treatment plants, on whether to give police pay raises, on if incentives should be given to a certain corporation looking to move to town and how to change their own elections!

Mini-Mayors

These at-large seats will merely be mayoral stepping-stone positions ("mini-mayors"). They'll embrace you just like you are embraced now by any given member on the dais (how's that werkin' for ya?). They'll be too busy catering to city-wide power brokers like developers and the Chamber for their mayoral run to listen to your little pot hole problem. They'll be useless; a waste of taxpayer dollars, at best.

Whose Team Are You On, Anyway?

The irony here? Many of those pushing for hybrids have long fought for geographic representation. The main reason we've lost at the polls in the past was because the monied interests who fought it did so with the "ward politics!" scare tactic. The district proponents squared off with the bastards and said "that's not how it works!" and called it "poppycock."

Now, it seems they've fully embraced the "ward politics" mantra by touting a hybrid system. "We have to have a few at-large seats to combat against it!" they say, with no sense of irony.

These at-large seats will merely perpetuate the same problem we are working to solve.

"Slow Change" = "No Change"

"Ease" into full geographic representation by getting halfway there now and maybe all the way there later? We've worked for 30 years to get geographic representation. We're supposed to work for 30 more because a few are afraid of "too much change at once"? Those afraid of "bold change" (as a CRC 10-1 advocate termed it) are really afraid of sharing power equally across the city.

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Stay tuned for Part 2, describing two federal district court cases staged in Texas that show us precisely why a hybrid system in Austin would be unconstitutional.