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.
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.
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.
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.