Special session explores state-imposed election districts for Council seats

WEIGHING THE OPTIONS: City Attorney Brad Branham said Asheville has four choices for managing Asheville's district elections law: do nothing, amend the city’s charter, file a lawsuit or take a hybrid approach. Photo by Brooke Randle

A vocal subset of Asheville’s population loves a good policy debate. On July 2, about 80 civic-minded residents attended a special session of City Council on the city’s options in the wake of Senate Bill 813, the law that replaced the previous at-large method for electing Council representatives with a district-based system.

The long-awaited discussion, however, took place nearly two years after a referendum found 75% of voters against a different districting proposal and over a year after the law was imposed. 

“I think it’s great that we’re doing this. I think it’s about a year too late,” said Council member Brian Haynes. “If a year ago we made this exact same presentation, we could be reaching out to the public at that point and getting a truer feeling of how they feel we should move forward. It’s discouraging the way it’s happened up to this point.”

Momentum recently began building on the issue when Haynes, along with fellow Council members Sheneika Smith and Keith Young, called for action to oppose the law in a June 6 op-ed in the Citizen Times. Council member Vijay Kapoor flipped his previous position to support districting on June 10, then proposed a compromise on July 2 that would expand Council from seven to nine seats, with four elected at large. 

At its July 2 meeting, Council called on City Attorney Brad Branham to detail Asheville’s alternatives for handling the electoral change. His hourlong presentation outlined four options: do nothing, amend the city’s charter, file a lawsuit or take a hybrid approach. 

Taking charge

Amending the city’s charter, Branham said, would be Council’s quickest route for circumventing the state law. Under that approach, he explained, Council members could change almost every aspect of Asheville’s electoral system, including reinstating all elections to an at-large format, deciding between partisan or nonpartisan elections, choosing from a variety of district formats and restoring primary elections. 

“You have the ability to pick and choose, like a menu,” Branham explained. “It is a very precise process that Council can dive into in order to determine its form of government.” 

While Council members have broad authority to determine the features of Asheville’s elections, Branham pointed out that state statute falls short of allowing them to amend the year in which elections are held. The state’s 2018 law placed elections on even years starting in 2020 — skipping this year’s previously scheduled elections and giving all Council members an extra year in office — a move that would remain in effect regardless of any changes to the charter.

The charter could be amended in as few as three Council meetings and without permission from the state, Branham noted. However, while that route would avoid the legal costs associated with filing a lawsuit, he said the move could be undone by the state legislature and cause “less goodwill and additional provocation” from the General Assembly.

“In other words, they changed what we had. We can change what they did, but they maintain the right to change what we do in the future,” Branham said.

Battle of wills

A more permanent undoing of the state’s electoral modifications, Branham continued, would require filing a lawsuit against the state government over the law. A lawsuit would allow Council to challenge all aspects of the law, including the change to even-year elections, and potentially bar the state from taking future action on certain issues.

 To win a suit, Branham said, the city would have to prove that the districting law hinders local elections in at least one of three possible ways: it applies to Asheville differently than similar laws apply to other cities in the state, divides the city into numerically uneven districts or is motivated by race.

If the city could prove that aspects of the law specifically target Asheville and nowhere else, its case could look similar to that of Greensboro. Branham pointed out that Greensboro was able to successfully overturn a 2015 state districting law, which also revoked that city’s right to a referendum, because the law didn’t take away the right from other cities. The Asheville law does not include a referendum prohibition.

Branham said the state legislature would have to meet a relatively low bar for showing that Asheville was not treated differently by its own district election law.

“As long as they can come up with some legitimate government purpose to have the law in place, that’s enough,” Branham said. “It is a very, very easy standard, based upon case law out there, for the General Assembly to meet.” 

The uneven districts claim would require Asheville to prove that at least a 10% difference in population, created for “improper or illegitimate considerations,” existed between any two districts. Wake County successfully challenged a districting law in a 2016 lawsuit brought against the state under this strategy. 

To determine population in each district and make this claim, the city would likely have to use 2010 census information, which Branham described as potentially inaccurate. New census information will not be available until 2021, when the city would be regularly scheduled to redraw the districts based on the updated figures.

Finally, Branham explained, the city could allege that the districts were drawn based on race and not another factor. But for the city to advance a lawsuit based on this claim, he continued, Asheville would have to show that the law impacted a local election based on election results — exceptionally hard to do prior to an election with the new districts.

“It is very much like suing someone whose car is pointed toward you, but before they’ve hit you,” Branham said.

Fine print

The city could amend its charter at no cost, but the projected legal costs for a lawsuit range from $100,000 to $2 million, Branham said. And while the city’s investment in the fight could be substantial, the outcome is not guaranteed. The most likely effect of Asheville’s legal victory, he said, would be a chance to redraw the districts — not return to an at-large system.

“Just having districts is legal. Removing districts is legal. How they are drawn creates a potential problem under the 14th Amendment [of the U.S. Constitution], and the corrective action is to fix the way that they are drawn,” Branham said. “That’s why most all of these courts are going to impose a redrawing, as opposed to removing the law.”

Branham also noted that the law affecting Asheville is very different from those in Greensboro and Wake County. In both of those cases, the impacted governments already had districts and maintained them after their legal successes. He added that a successful lawsuit would not necessarily stop the state from continuing to change Asheville’s election format in the future.

 “It could be, despite the money spent and the time invested, not the end of the story if the state chooses to act yet again,” Branham said.

Mindful of these limitations, Mayor Esther Manheimer said Asheville hasn’t been eager to jump into a lawsuit. She noted that the city has made an effort to contact local and state nonprofits that battle districting legislation on behalf of cities but has yet to find a group to take on the case for Asheville.

“That doesn’t look like an opportunity for us, but we can obviously bring our own litigation if we so choose,” Manheimer said. In a June 3 post on the Asheville Politics Facebook group, the mayor declared that the city had “a shitty case, in legalese” regarding the districting issue.

To fight or not to fight?

After the presentation, the meeting included a Q&A session through which community members asked Branham specific questions regarding the city’s options via notecards. City spokesperson Dawa Hitch said all of the questions and Asheville’s answers would be posted on the city website; the material was not available online as of press time. 

The meeting also featured nearly an hour of public comment — beginning over two hours after the session’s 5 p.m. start time — in which several community members expressed frustration at the lack of transparency and movement from Council on the issue. 

“Almost everything about the unfolding of this process is unacceptable. There should have been a deep analysis and strategizing as soon as this came down. Instead, a year later, here we are in a manufactured time crunch trying to figure out what to do. And it isn’t on citizens to figure out what to do — it is on you all, in my opinion,” said Darlene Azarmi, an organizer for Democracy NC. 

Other speakers also implored Council to take action on the issue, including community organizer Nicole Townsend, who told Council members that the law amounted to racial discrimination against minority voters.

“We can’t pretend that districts are not about lessening opportunities for black and brown folks to serve as elected officials,” Townsend said. “The same representatives who are fighting for districting across North Carolina also had their hand in the pot when it comes to the voter ID laws, which we know are racist.”

Roughly a quarter of those who spoke, however, asked that Council allow the districting to stand. Asheville resident Shelia Surrett told Xpress before the meeting that she believes splitting Council elections into districts will allow each Council member to address specific issues related to certain geographic areas.

“We need districts. These people need to be held accountable, and there is no accountability here,” Surrett said. “The county came into districts as well [in 2011]. Now, if you’re in a district, you’re held accountable.”

Resident Rich Wasch said that, while he voted against districts in the 2017 referendum, he doesn’t see a clear path forward if the city chooses to file a lawsuit.

“At this point, pragmatism would say that if we want to just sue Raleigh, we’re likely to lose. I look at probabilities and say if the city spends the next year pushing for a redress and says we want to stay totally at-large, and we lose, then we lose doubly,” Wasch said.

Onward

Before adjourning the meeting, Manheimer said that the city’s most likely next step would involve Council members meeting in closed session with Branham to further detail Asheville’s options. Branham said that session would be closed to preserve attorney-client privilege in the event that the city does file a lawsuit.

“I haven’t discussed a lot of those specific elements as a part of this presentation, very specifically to maintain the confidentiality that we would need for a claim,” Branham said. “It’s not these people hearing that we worry about — it’s the attorneys that would represent the parties that we would potentially be suing.”

Manheimer added that any decision from Council would be voted on during an open session at a regular Council meeting, which would also include another opportunity for public comment. The next formal Council meeting will be held at 5 p.m. on Tuesday, July 23, on the second floor of City Hall.

SHARE

Before you comment

The comments section is here to provide a platform for civil dialogue on the issues we face together as a local community. Xpress is committed to offering this platform for all voices, but when the tone of the discussion gets nasty or strays off topic, we believe many people choose not to participate. Xpress editors are determined to moderate comments to ensure a constructive interchange is maintained. All comments judged not to be in keeping with the spirit of civil discourse will be removed and repeat violators will be banned. See here for our terms of service. Thank you for being part of this effort to promote respectful discussion.

10 thoughts on “Special session explores state-imposed election districts for Council seats

  1. luther blissett

    “that she believes splitting Council elections into districts will allow each Council member to address specific issues related to certain geographic areas.”

    1. Districts don’t map to neighborhoods.
    2. Most people work in different places than they live. This applies doubly to downtown, so it would be strange to have a de facto “Council member for downtown” elected from a much broader “central” district.
    4. Most of Asheville’s issues are not district-specific.
    5. Has there really been any significant change in county government in terms of district-specific accountability? Do commissioners provide constituent service the way NC House members do, given that they share district maps, or do they mostly just represent party preferences in the areas that voted for them?

    • bsummers

      Last year, just before the November election, Commissioner Robert Pressley persuaded two other Commissioners to support putting something on the agenda: looking at getting water for Candler from Canton, in Haywood County. There never was a study; as far as we know, there never even was a study on whether to do a study. The idea was absurd on it’s face – Canton/Haywood don’t have spare water to give away. They’re dealing with shortages without sending water down the hill into water-rich Buncombe County.

      All we know is that some residents and development interests in Pressley’s district wanted to see some movement about maybe getting water for that area. Putting the topic on the agenda a month before the election was just a district-focused stunt to get him re-elected.

  2. Curious

    ““We can’t pretend that districts are not about lessening opportunities for black and brown folks to serve as elected officials,”
    In what way do districts lessen chances of black and brown folks to be elected?

  3. OzarksRazor

    “Almost everything about the unfolding of this process is unacceptable. There should have been a deep analysis and strategizing as soon as this came down. Instead, a year later, here we are in a manufactured time crunch trying to figure out what to do. And it isn’t on citizens to figure out what to do — it is on you all, in my opinion,” said Darlene Azarmi, an organizer for Democracy NC. ”

    Funny, this has been said at city council meetings repeatedly for almost a year by another Asheville citizen, Jonathan Wainscott. She chastised him publicly just moments before she said the above because he has been speaking up about the media’s ill-reporting of details, the actual make-up of our NCGA that a few weeks previous, Ms. Azarmi confidently stated was “arguably, the most racist General assembly in the United States”, as he’s been continuing to call out the members of council, as well as bringing actual facts and the district map straight from the Senator’s office to the conversation.
    Last year.
    Radio silence.
    Odd that he is the one called “unbelievably offensive” and his behavior “disgusting” for showing the faces and names that the “75% that voted against the districts” are almost gleefully calling racists because the narrative got way off track. Please, the reality of the situation and people continuing the false narrative of racial gerrymandering SHOULD be called out for being a major part of this problem. Sorry you got busted, folks.
    I have every video of council meetings for the past year, but then again… so does the press because they are a matter of public record.
    What a joke.

  4. Mike R.

    There are pros and cons to both approaches. A blend of approaches seems best. 5 districts plus 2 or 3 at large plus a Mayor at large. Virtually all larger cities in NC use this approach.

    Second, Asheville needs to go to 2 year Council and Mayor terms. All larger cities in NC have adopted this approach. 4 years is too long and inhibits citizens from running. Most good council people will serve more than 2 years, but those that aren’t so hot or who signed up for more than they realized, can exit at 2 years.

    Asheville seems behind the times in just about every aspect of city government! Time to move forward.

    • luther blissett

      “Second, Asheville needs to go to 2 year Council and Mayor terms.”

      Two-year terms are stupid for almost every elected position, but especially in local government, where it’s hard to judge the effectiveness of incumbents at the time when initial decisions are being made to seek re-election or mount a challenge. It also sets things up (if districts are actually competitive) for ongoing discontinuity. The council-manager model already vests a large amount of institutional power in senior staff, and we’ve seen how “this is just how things are done here” worked over time at the county level.

      One way to move forward would be to have a larger elected City Council with greater and more focused oversight roles instead of delegating so much policy work to volunteer committees and subcommittees and working groups who meet mostly during working hours:

      https://www.ashevillenc.gov/department/city-clerk/boards-and-commissions/

  5. OzarksRazor

    “Almost everything about the unfolding of this process is unacceptable. There should have been a deep analysis and strategizing as soon as this came down. Instead, a year later, here we are in a manufactured time crunch trying to figure out what to do. And it isn’t on citizens to figure out what to do — it is on you all, in my opinion,” said Darlene Azarmi, an organizer for Democracy NC. ”

    Funny, this has been said at city council meetings repeatedly for almost a year by another Asheville citizen, Jonathan Wainscott. Ms. Azarmi chastised him just moments before the above quote for him showing the names and faces of the folks of the actual NCGA that unanimously voted for Asheville districts. A few short weeks ago, Ms. Arazami confidently stated our #NCGA was “arguably, the most racist General assembly in the United States”, as he’s been continuing to call out the members of council, as well as bringing actual facts and the district map straight from the Senator’s office to the conversation.
    Last year.
    Radio silence.
    Odd that he is the one called “unbelievably offensive” and his behavior “disgusting” for showing the real people and that the “75% that voted against the districts” are almost gleefully calling racists because the narrative got way off track. Please, the reality of the situation and people continuing the false narrative of racial gerrymandering SHOULD be called out for being a major part of this problem. Sorry you got busted, folks.
    I have every video of council meetings for the past year, but then again… so does the press because the meetings are a matter of public record.
    What a joke.

  6. Lulz

    LOL boy they sure do come out of the woodwork if they feel their absolute power is threatened in any way. And unlike the tourist tax scam where these same pieces of garbage lay the blame in Raleigh yet won’t admit that they can change it if THERE WAS A EFFING REFERENDUM ON THE EFFING BALLOT, they’re actually telling the truth in this case. And breaking up this monopoly of fools is the best thing to happen yet.

  7. OzarksRazor

    The mountain xpress is still censoring this discussion by NOT publishing all of the comments by members of our community.
    You should be ashamed of your intentional part in the public’s confusion over districts.

Leave a Reply

To leave a reply you may Login with your Mountain Xpress account, connect socially or enter your name and e-mail. Your e-mail address will not be published. All fields are required.