A federal judge in Birmingham denied Decatur’s motion to dismiss a lawsuit filed against it by Gary Voketz for not implementing a council-manager form of government approved by city voters in a 2010 referendum.
U.S. District Judge Abdul K. Kallon, of the Northern District of Alabama, said in a ruling filed Thursday afternoon that Decatur “failed to present the court with any legal basis for failing to implement the results of the 2010 referendum.”
Kallon ruled the U.S. Supreme Court decision in a case involving Shelby County that struck down part of the Voting Rights Act of 1965 should be applied retroactively.
The Supreme Court’s 2013 ruling in the Shelby County case effectively eliminated the requirement that states and local governments get preclearance from the U.S. Department of Justice before changing their voting laws or practices.
Decatur contended the Shelby County case did not apply retroactively. The city’s position is that the preclearance requirement was still in effect when the referendum was held. The city’s motion to dismiss the case called the referendum a “dead letter,” since the Justice Department never approved the change to the council-manager form of government.
Between the 2010 referendum and the 2012 proposed implementation date, the city submitted then withdrew a council-manager government plan to the Justice Department for preclearance. The Justice Department never made a determination as to whether the plan complied with the Voting Rights Act.
Kallon wrote that Decatur’s argument suggested the city, by declining to seek preclearance, could itself use the Voting Rights Act to block the council-manager referendum.
“The defendants, however, are not arbiters of federal election law,” Kallon wrote.
“Essentially,” continued Kallon, “viewing the facts in a light most favorable to Voketz, the defendants have unilaterally declined to implement the results of an election.”
Carl Cole, Voketz’s lawyer, said the ruling was an affirmation of the people’s right to choose their own form of government.
“I think it’s a great opinion for Gary Voketz and the people who voted for the manager-council form of government back in 2010,” Cole said. “The judge was highly critical of the position by the mayor and council in not implementing the manager-council form of government.”
The city argued the Shelby County ruling was “prospective,” or applied only to cases after the Shelby County ruling, said George Royer, a Huntsville attorney representing the city.
“We respectfully disagree with (Kallon’s) opinion,” Royer said.
Kallon said his research found four federal cases — in Mississippi, Georgia, Louisiana and Arizona — that addressed whether the Shelby County ruling applied retroactively.
“Like this court, all four concluded that it does,” Kallon wrote.
Royer said the city had hoped for a favorable ruling to avoid a trial. He said the case will now turn to the heart of the issue: Would changing to three council members elected by district and two members elected citywide be discriminatory because no black candidate could be elected?
The city now has five council members elected by district. District 1 Councilman Billy Jackson, the only black member, is from the only district with a black majority.
The 2010 referendum triggered the state Council-Manager Act, which would have required the appointment of a city manager as the city’s chief executive and would have required the city to drop from five to three council districts.
“This lawsuit is not over by any means,” Royer said.
Cole said the city’s best move would be to settle the case.
“You would hope as a taxpayer they would quit wasting taxpayer money on this and reach out to us,” he said.
The city early this year had spent almost $112,000 defending the lawsuit. It has agreed to pay Voketz’s legal fees if he wins the remainder of the lawsuit. Those fees, Cole said early this year, are in “six figures.”
Told of Royer’s comment that the focus will turn to the merits of the case concerning whether the change in government would be discriminatory, Cole said, “That’s great. We’re happy to address that.”
Cole said the city could adopt three districts with one district that has a 40 percent minority population. He said that would be enough for minorities in the minority district to be able to elect the candidate of their choice.
All blacks don’t vote for a black candidate and all whites don’t vote for a white candidate, Cole said.
He said a district with at least a 40 percent minority population could be drawn without substantial gerrymandering.