Legal intervention by the Fayette County Commission has, for now at least, thwarted a settlement that would have restricted voters to casting a ballot for only one of five seats on the Fayette County Board of Education.
The two agencies, along with plaintiffs including the National Association for the Advancement of Colored People, are heading for a court showdown May 10 in downtown Atlanta before U.S. District Judge Timothy C. Batten Sr.
The original hearing date was May 3 but it was pushed back a week to give all parties a chance to respond to briefs in the matter.
Judge Batten on April 18 overturned a consent order agreed to by the BoE and NAACP that would have instituted district voting and created a new district map for the five BoE posts.
Currently, all five BoE seats are at-large, meaning that each qualified voter in Fayette County may weigh in on all five seats. Under a district voting scheme, voters would be limited to voting for only one of the five board members: the one whose district the individual voter lives in.
Batten overturned that map, leaving the possibility that the upcoming BoE elections will be conducted using the existing at-large county map in lieu of the new map the BoE and the NAACP agreed to.
Batten’s decision to throw out the new “consent” map came after a challenge by the county commission, which had not agreed to that order. Contrary to the BoE settlement, the county has elected to fight the NAACP request to draw a certain five-district map and implement district voting, all on the theory that it will make it easier for a minority citizen to become elected to the commission.
County Attorney Scott Bennett last week noted that the county had no choice but to oppose the BoE-NAACP settlement because it endangered the county’s legal position.
In a court brief, the law firm representing the county commission notes that the BoE-NACCP settlement did not involve any violations of the Civil Rights Act that were alleged by NAACP and the several individual plaintiffs in the case. The brief cites several cases in which such settlements have been deemed void because the settlement does not provide a remedy for the alleged violation.
The county also argues that the BoE has no power to authorize the switch to district voting and the change to the five geographical districts because that power rests solely with the Georgia legislature.
When Batten overturned the settlement, it also made null and void a provision that would have put the District 5 seat, currently held by Leonard Presberg, up for election this year. Presberg was appointed to the vacant position in November by the other four BoE members and under the current enabling legislation for the BoE, he must serve the entire remainder of the four-year term. The seat became open upon the untimely death of former BoE member Sam Tolbert.
Under the current map and legislation authorized by the Georgia General Assembly, the seats up for election this year are currently held by Terri Smith, Marion Key and Janet Smola.
Likewise, three seats on the county commission are also up for election this year: those currently held by Herb Frady, Lee Hearn and Robert Horgan. The commission in February adopted a new five-district map that has been approved by Judge Batten following a separate lawsuit settlement and is being reviewed by the U.S. Justice Department. The county’s map, however, retains the at-large voting scheme instead of the district voting scenario favored by the NAACP.
