Will 10 elected officials surrender or will they litigate?
And will money — or the lack of it — become the deciding factor in the biggest voting rights case ever to hit Fayette County?
Officials with Fayette County government and the Fayette County Board of Education are not divulging how they will address a lawsuit filed by the Fayette County branch of the National Association for the Advancement of Colored People and 11 individual county residents.
Hanging in the balance is a potential seismic change to the way Fayette County residents elect members of the county commission and the board of education. Currently, any Fayette resident registered to vote can vote on all five members of each board.
But the NAACP wants both governing bodies to adopt a new scenario that would limit each resident to picking just one member on each board, with the express goal of creating a special “majority minority” district that would in theory guarantee a person of color would be elected to the school board and county commission in that district.
The side effect, however, is that district voting would severely restrict the political clout currently enjoyed by Fayette County voters of all colors: the chance to directly decide all five representatives of the school board and county commission.
The current scheme of all county voters voting for all members of both boards has been in place for decades before the county’s minority population grew beyond single digit percentages. The growth of minorities from under 5 percent of the population in the 1980s to nearly 20 percent in the 2010 census has changed the dynamics of the voting equation.
The NAACP lawsuit claims that Fayette’s current election system violates the federal Voting Rights Act. The suit was filed in federal court and barring any major developments to settle, it will be determined by a U.S. District Court judge.
While the county commission has hired a law firm that specializes in such cases, the cash-strapped board of education has decided to have its own contract attorney, Phillip Hartley, handle the case.
The county’s law firm, Strickland Brockington Lewis, is using demographers to analyze the data behind the NAACP’s claim along with a proposed new district map that was submitted by the NAACP to the county. Both county and NAACP representatives have declined to provide The Citizen with copies of the maps, citing a protection due to the maps being part of “attorney-client work product.”
The Citizen asked County Manager Jack Krakeel last week if any decisions have been made on a direction to take in the lawsuit, and whether the possibility has been explored of helping “share” the county law firm’s expertise with the board of education.
Krakeel would only reply, “We are still in the discovery phase.”
In other words, the commission is playing its hand close to its vest, at least at this point.
School board attorney Hartley also declined to comment about any details of the school system’s plans to address the lawsuit.
“It is not appropriate for me to comment on strategy decisions or possibilities that may or may not arise during the course of litigation. We will be representing the School District in this matter and will be glad to respond as events actually occur,” Hartley said.
The Citizen was hoping to divine some answers from the school system to the following questions:
• Do you intend to fight the lawsuit or go for settlement? And if you fight it, what potential time lines do you foresee?
• Do you have any idea to date on a general or specific cost for the litigation?
• Given the cost or any other factors, is settling out of court something you’re considering?
• What feedback on this matter are you getting from the community?
• Can your attorney provide us with proposed maps of the redrawn voting districts?
The Citizen also asked how the school system would pay to defend the lawsuit, whether Hartley has the expertise to handle the response to the complaint, and whether the school system might seek to cost share with the county to lessen the financial expense, given that there could be enough similarities between both cases to help shave costs.
School superintendent Jeff Bearden declined to make any comments, saying that the questions had to do with “pending litigation.”
For its part, county officials have previously noted they are trying to keep costs down in the litigation by, for example, limiting the number of experts sought early on.
In the federal complaint, a good bit of attention is paid to the 2006 special election for one of the seats on the county commission. In that election Robert Horgan, a white candidate, won a five-way race for a vacant seat on the Fayette County Board of Commissioners against four other black candidates. That race included two black Democratic candidates, Wendi Felton and Charles Rousseau, along with black Republican candidates Emory Wilkerson and Malcolm Hughes.
The suit does not, however, detail that while 51.7 percent of the voters chose Horgan, the remaining vote was split amongst the four black candidates, with Wilkerson leading the others with 29.05 percent of the vote. Nor does it provide a racial breakdown of how many voters supported which candidate.
The suit also focuses on the 2010 defeat of Laura Burgess, a black college professor who ran as a Democrat for an open seat on the Fayette County Board of Education against Republican challenger Sam Tolbert, a retired college professor. The suit claims that Burgess “received near unanimous support from black voters (99 percent) but less than 20 percent of white votes.”
Burgess only got 31.5 percent of the vote countywide, according to county election results.
While the suit does not touch on the subject, Burgess’ campaign was notable because she never responded to a list of questions submitted to all candidates by The Citizen newspaper, the results of which were subsequently published. Tolbert did respond to The Citizen’s questions, and his answers were published in the paper.
Also not mentioned in the suit, Burgess also declined to return a number of phone calls for comment placed by The Citizen during the campaign, although she spoke with a reporter once in May soon after she qualified.
— Additional reporting by Ben Nelms