Buncombe County’s removal of 17 newspaper boxes in front of the courthouse was illegal, attorney Amanda Martin of the N.C. Press Association maintains.
“There’s absolutely a First Amendment issue here,” she asserts. “Newspapers have the right to be on public property.”
County Manager Wanda Greene ordered the move late last month. “We removed them because they were just becoming quite unsightly,” Greene explains. “There were so many of them, and everyone who had a box there was contacted to pick their boxes up.”
The county manager wasn’t sure if the businesses had been warned beforehand. But according to Xpress Assistant Distribution Manager Jeff Tallman, the county failed to notify the paper in advance. Tallman says he first realized the boxes were missing June 28.
Public agencies, notes Martin, can establish guidelines for the “reasonable time, placement and manner of that right,” such as removing boxes blocking a fire hydrant, but “They can’t just unilaterally decide to do that because they’re not pretty. It’s illegal to do that.”
The city of Asheville and Buncombe County jointly own this stretch of sidewalk. Greene says she didn’t consult with the city before removing the boxes, which were deposited next to a storage container off Valley Street to await pickup.
“At least twice, the U.S. Supreme Court has recognized the importance of the distribution of news through news racks,” Martin reveals. “Public officials do not have the authority to unilaterally make the decision to remove news racks from public property.”
In the 1988 City of Lakewood v. Plain Dealer Publishing Co., the high court struck down a city ordinance authorizing the mayor to decide where newspapers could place their racks. And a 1993 decision in City of Cincinnati v. Discovery Network, Inc. overturned a city requirement that commercial publications purchase a permit. Cities, the court found, cannot discriminate between commercial and noncommercial publications on public property, nor limit the number of news racks.
County officials haven’t said whether they sought legal advice before making the decision, or what the legal justification was for removing the boxes.
A referendum on Board of Commissioners elections?
In the continuing chess game with Raleigh, the Buncombe County commissioners appear poised to make the next move. In response to surprise state legislation mandating a switch to district elections for the Buncombe County Board of Commissioners, the commissioners are considering a November referendum on how the board is elected, Chair David Gantt said.
The idea would be to change the system back to at-large elections before the first district elections could be held next year.
“We think it would change the existing system of representation, which at this moment in time is districts,” says Gantt. “There’s a lot of interest in it, and we’re trying to get the facts.”
Republican Rep. Tim Moffitt introduced the change to district elections in March, without consulting or informing either his colleagues in the local legislative delegation or the current commissioners, all of whom are Democrats. Under Moffitt’s leadership, the Republican-controlled Legislature shot down amendments proposed by Rep. Patsy Keever and Sen. Martin Nesbitt (both Buncombe Democrats) requiring a binding referendum on the switch. Passing such a law without a local request or any provision for a referendum was unprecedented in state history.
Moffitt argued that the measure would make the board more accountable to underserved areas of the county while giving less prosperous candidates of either party a better chance of winning. Gantt, however, said the change would limit democracy by preventing residents from helping choose all the commissioners.
And holding a referendum, he maintains now, would be about more than just partisan politics.
“There are a lot of Republicans that have told me they’re concerned about losing the right to vote for all the commissioners,” Gantt reports. “So it’s not necessarily a Democratic issue. … I would probably support at least a referendum to let everybody vote.”
The commissioners themselves rebuffed a 2008 attempt by Republican Nathan Ramsey (who was then the board’s chair) to hold a referendum on district elections. And it’s not yet clear how much the other current commissioners support the idea, Gantt notes.
“It’s got to be a majority of the commission to pass, and I think our commission’s all over the board on that issue,” he explains. “We’ll have to decide by August.”
Meanwhile, “There’s a lot of information we have to get together before we make a call on it,” continues Gantt. At this writing, the General Assembly was slated to release new maps for Buncombe’s Board of Commissioners and Statehouse districts July 11.
There’s no statutory deadline for getting a referendum on the ballot, according to county Board of Elections staff, though absentee ballots must be ready about 45 days before a municipal election.
And though Gantt says “a lot of people” are looking into the idea, local Democratic Party Chair Emmet Carney declined to comment on whether he thinks a referendum is in the offing.
The commissioners’ next meeting is Tuesday, July 26.
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