Decatur City Attorney Herman Marks contacted the state Attorney General’s Office this week but was told the office would not issue an opinion on the validity of the city’s April 2010 referendum.
“The chief of our Opinions division advised Mr. Marks that our office does not interpret federal law, and his question involved issues under the federal statutes that we would not be able to address,” AG spokeswoman Suzanne Webb said Thursday.
She declined comment on whether the referendum is binding on the city in the absence of a U.S. Department of Justice objection.
The Justice Department, which last week said it never made a ruling on the referendum, on Wednesday declined further comment.
Under state law, the effect of the referendum was to change Decatur’s form of government. Instead of five district council members and a mayor, the referendum triggered a state law mandating the election of three district council members and two at-large council members, one of whom would be the mayor. The law required the elected council to hire a full-time city manager.
Marks determined the referendum violated the Voting Rights Act, because three voting districts could not be drawn to allow black residents to hold a majority in any district.
Voting rights lawyer Ed Still of Birmingham said the only way the referendum will take effect, other than action by the city, would be through forced legal action.
Decatur resident Gary Voketz spearheaded the petition that put the referendum on the ballot in April 2010. His son is seriously ill, and he has been at his son’s side in Birmingham most of the last five weeks.
“I really wonder if they violated our civil rights,” Voketz said by phone Thursday. “They should have let the Justice Department make a decision. Maybe the whole bunch should be impeached.”
Unless it violated the federal Voting Rights Act, the referendum — under state law — should have changed the ballots for the Aug. 28 election.
The normal procedure before a redistricting change is to request preclearance from the Justice Department. Marks submitted a request for preclearance of the referendum results to the Justice Department in October 2011. In December, the Justice Department requested additional information.
Among the requests:
“If the city sought to adopt a council-manager form of government while maintaining five single-member districts, please provide a description of its efforts to achieve that result. If the city made no such effort, (provide) an explanation of why that option was not pursued.”
Marks said he recommended that the City Council withdraw the request for preclearance because the city had no additional information to send.
“We provided all the information we had that would reflect on why (the referendum) would not retrogressively impact the minority voter. There was no other information we could provide to counter-balance that,” Marks said Wednesday.
Marks said he interpreted the letter to mean that, unless the city could provide additional information, the Justice Department would ultimately object to the referendum. Waiting for the expected denial, he said, would have caused the city to miss deadlines it had to meet for the Aug. 28 election.
The City Council in January, at Marks’ recommendation, substituted the request for preclearance of the referendum results with a request for preclearance of five voting districts, effectively rejecting the referendum. The Justice Department precleared the five-district request, but never ruled on the three-district request.
“The referendum doesn’t meet federal law, is what it boils down to,” Marks said. “It won’t be implemented. The Planning Department and others spent hundreds of hours trying to meet the state law and the federal law, and we couldn’t do it.”
Gerry Hebert, a former chief of the Voting Section of the Justice Department’s Civil Rights Division, said he believes the Justice Department would have precleared the referendum results as long as the purpose of the referendum was not to harm minority voters.
“I just happen to disagree with that,” Marks said.
Hebert said the Justice Department evaluates two aspects of redistricting requests: their effect on minorities’ ability to elect their candidate of choice and whether the change was discriminatory in purpose. He said the focus of the Justice Department’s information request was on the purpose of the referendum.
“This letter relates primarily to the purpose prong,” which suggested the Justice Department did not find the loss of a majority minority district to be conclusive, Hebert said.
At a candidates’ forum Tuesday, City Council President Gary Hammon said Marks advised the City Council that a Justice Department request in December for additional information was an indication that it would never preclear the referendum.
“I didn’t say that,” Marks said. “Our understanding was that if we sent back anything, it would have ended 60 days after they got it.”
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