A Hybrid District System for Austin is Unconstitutional, Part 2 (OPINION)
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 Department of Justice 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.