Joey Fishkin on “Shenanigans” After Section Five

Joey Fishkin has an excellent post on some of the many voting changes that previously-covered jurisdictions are implementing (or may implement) now that they are not covered by Section Five of the Voting Rights Act. He devotes particular attention to some suspicious-sounding “shenanigans” (his word) in Beaumont, Texas, and makes the general observation:

[T]he greatest impact of Shelby County will likely be at the local level—in places where media scrutiny is minimal, and litigation resources meager. You will hear less about these local cases. But I think that’s a problem; they are really where the action is. … With the gradual decline of local journalism, I only know about this story because of a blog post (and many of you who are reading this probably only know about it because of this blog post). Across the South, many controversies of this kind are going to go under the radar, with no reporter, or even a blogger, bothering to cover them at all.

I think this is a very good point, sometimes neglected in media coverage of things like redistricting or state-wide voter ID laws.

One final point. I suspect that the way most people see these voting changes will generally be a result of confirmation bias. Those who thought that the preclearance regime was constitutional will see these as further proof that Section 5 was needed — just look at all the “shenanigans” that covered jurisdictions get up to as soon as they have a chance, they’ll say. Those who thought the regime was unconstitutional will see them as further proof of Section 5’s dramatic invasion of state sovereignty — this just shows how big of a burden Section 5 was imposing and/or how unneeded that burden was in light of the Constitution and (maybe) Section 2, they’ll say.

UPDATE: In the comments, “Robert,” who identifies himself as a resident of Beaumont, has a different account of what has been going on there. I have no idea which accounts are most accurate or what the right answers as a legal matter, but I’m reposting the comment up here for those who are interested in hearing another side of the story:

I live in Beaumont and I am thankful my children are grown and no longer in BISD and my grandchildren are in an excellent school district nearby. Fiskin’s article leaves out much of what happened as does the Beaumont Enterprise article. A local weekly newspaper (The Examiner) has much more on this story. I will try to briefly describe what has happened with BISD.

Several years ago the citizens became fed up with the current school board over numerous issues such as the old superintendent being the highest paid superintendent in the state (over $300,000 a year with automatic pay raises) in a district of 20,000 students, poor test scores, a bond issue which was passed with the understanding that a historic school building would be preserved and the historic school being torn down during a holiday weekend, hiring an electrical contractor for the new construction who did not have his master electrician license, once he got the license his work has failed to meet code numerous times, the electrician submitted false invoices for work completed, the electrician was prosecuted by the US Attorney (he pled to a tax violation) and forfeited over $3 million which the school board failed to file a claim for because the board president said that since the electrician was not found guilty he did not think the money should be returned to the district, and constant arguing by the board members. The fed up citizens petitioned to change from 7 single member districts to a 5 and 2 plan to break up a core group of members whom they believed to be causing most of the problems. This was approved by the voters but the board had to be forced to present it to the DOJ for clearance. The school board president said that he did not have to present it because the only people who voted for it in the district wide election were the whites and hispanics. The school board attorney presented it to the DOJ but did not vigorously defend the new voting plan and they did not clear it.

Under Texas Election Law every 10 years (census) the voting district boundaries have to be redrawn if there is more than a 10% variance in voters. Due to the pre-clearance refusal of the 5/2 plan the DOJ forced the voters to keep the 7 single member districts. These districts had to be redrawn so that there was not more than the 10% variance. It was not until December 2012 that the new districts were re-drawn, approved by the school board, and an election was set, including the filing deadline. Texas Election law also says that since the district boundaries have been changed every seat is up for election (to make sure everyone has a chance to vote for the trustee representing the district they live in). This applies even if a school district has staggered terms of office unless the school board votes to maintain the staggered elections (basically a savings clause). This vote has to be made a certain number of days before the filing deadline. The BISD school board did not make this vote. When everything hit the fan after the filing deadline the school district attorney, in a board meeting, said that she knew about the savings clause but she was too busy doing other things to remember to advise the board to make the vote. The attorney representing the school board messed this up, not the attorneys for the challengers. She is still the school boards attorney, by the way.

Once the challengers and their attorneys discovered that under Texas law all of the seats were up for election they appropriately advised their clients to file (just) before the deadline. The week after the deadline the district refused to accept the filings and in fact had a vote to once again change the district boundaries (after the filing deadline!). (Note: this is the short version, there were other issues which occurred around this time such as one board member assaulted another and the board went into executive session with the board president trying to have the school district police bar a board member from the session) This lead to the state appellate court mandamus action. Under Texas Election law school board elections can only be held in conjunction with other elections (May and November). There was a deadline for the newly drawn boundaries to be pre-cleared in time for the election but by re-drawing the boundaries after the filing deadline and the school district attorney dragging her feet in requesting the clearance the election had to be delayed until November. Her request for pre-clearance was written in such a way that it was guaranteed not to be approved. The election was delayed and now the question is do they use a new filing deadline or do they use the original one?

Sorry this is so long, it could really have been much longer. My personal opinion is that all of the board members should be thrown out of office.

SECOND UPDATE: Here is a further comment by Joey Fishkin, which will be the last substantive update I add to this post:

I read enough materials (on the web, in legal filings, etc.) in preparation for writing that blog post to recognize most of the things Robert says, although not every single detail; I would say he is essentially stating the Citizens for a Better Beaumont side of the dispute (that’s the predominantly-white side, the group trying to oust those black incumbents). I really have no view about the underlying substantive disputes here, and there are many — such questions as whether the school district is poorly managed by the current majority, the allegations of corruption, or even what the right decision should have been regarding tearing down that school building (which by the way was not just any “historic” school building, but interestingly, was the building that once held the former all-white segregated high school before school integration, and an important part of the opposition to tearing it down came from its alumni). I am not especially interested in the substance of any of these questions. My interest is in the procedure. This school board is, for better or for worse, the one that the people of Beaumont elected. If there is to be a break with past practices of staggered elections in order to comply with some previously-ignored bit of state law that requires elections in all seven districts after a redistricting, that sounds good to me, but common sense and equity require giving incumbent officeholders some sort of notice that the term for which they were elected is now being cut in half and new elections are being held for their seats. Sandbagging the incumbents with late-afternoon-on-the-last-day filings for a not-yet-announced election is a classic local-politics shenanigan. To be clear: calling it a shenanigan doesn’t make it racial. It’s the context — the racially charged nature of the broader dispute in Beaumont — that lends this shenanigan its racial character, and explains why Section 5 would have (and did) block it.