These districts were proposed for Asheville council elections in a bill that failed to pass last year. A new proposal would let an independent city commission draw the districts.

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RALEIGH – New legislative session, new senator from Hendersonville, and a new bill requiring the city of Asheville to change the way it elects its leaders. Sort of.

Former Sen. Tom Apodaca’s 2016 bill to draw council districts for Asheville is back in a new form. Apodaca’s successor, Sen. Chuck Edwards, R-Henderson, is using the same districts Apodaca proposed last year, but the new legislation, Senate Bill 285, allows the city to draw its own districts instead, provided it does so by November 1. Should the city council fail to draw its own districts by the deadline, maps included in the bill would take effect. Edwards confirmed that the districts to be implemented if the city doesn’t approve its own districts are the same as those drawn by Apodaca. Although Edwards resides in Henderson County, his district includes a portion of southern Buncombe County, so that he represents about 15,000 Asheville residents.

“If (Asheville council members) don’t comply by November 1, the districts will be the same as the map that was drawn in the short session last year,” Edwards said in a recent interview with Carolina Public Press.

Last week, the bill was moved to the Senate’s Select Committee on Elections, chaired by Sen. Ralph Hise, R-Mitchell. The committee has not yet scheduled a hearing on the bill.

The bill is needed, Edwards said, because of the expansion of the city.

“The city has grown and become so diverse,” Edwards said. “It’s clear that it’s time folks be represented by somebody in their own neighborhood that they can know and they can connect with. My intent is to make sure the entire city has adequate representation, nothing more than that.”

Last year’s bill met an ignoble defeat in the House of Representatives on the last night of the legislative session in early July. Apodaca’s bending of a rule requiring unanimity among local delegations for local bills passed in the even-year “short sessions,” rankled some of the more conservative House Republicans who denounced the bill as heavy-handed and joined with Democrats to defeat the measure.

The unanimity rule is not required in the odd-number year “long sessions.”

Edwards was blunt when asked about whether the city could opt to put the districts before the voters in a referendum first, a move supported by city leaders.

“This bill will go into effect November 1st, so a referendum would be pointless,” Edwards said.

The bill requires the city to draw six geographical districts of similar population, with only the mayor elected at large. Candidates would be required to live in the districts they represent and only the mayor would be elected at-large. The new system would start with the 2019 election cycle.

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Rep. Susan Fisher, D-Buncombe, said the bill stands a much better chance in the legislature than Apodaca’s bill.

“I think there were a lot of factors at play when that particular bill was moving,” she said in a recent interview.

Instead of outrage over procedure, she’s relying on the city and the legislature coming to terms.

“I know that the city is currently looking at ways to approach a districted organization and my hope is that there will have been enough work done toward that to make this bill moot when it does finally get to the House,” Fisher said.

The use of only geographical districts and the lack of a referendum could cause trouble for the bill should it become law and face a court challenge, according to Allison Riggs, an attorney with the Southern Coalition for Social Justice, which has argued in federal court against recent legislature-imposed redistricting in Wake County and the City of Greensboro.

Riggs, who has reviewed the Asheville bill, said there are “glaring constitution issues” with the new legislation.

Even though the state constitution doesn’t require a referendum on local electoral changes, it is common practice in North Carolina, she said. “There are plenty of examples of where the legislature forced changes on people and still didn’t take away their referendum right.”

Like the case in Greensboro, in which a ruling is still pending, Asheville is clearly being singled out, she said.

“Where you run into constitutional issues is where you give (a referendum) to the cities but then decided for arbitrary reasons only retract that right from one or two places,” Riggs said.

“There is no explanation of why the citizens of Asheville ought not be able to exercise the right afforded to every other citizen of a municipality in North Carolina.”

Attempts to redistrict will also be difficult because of the growth in the city since the last census on which the districts are to be based. The population estimate for the city as of July 1, 2015 is 86,789 up from 83,393 in the 2010 Census. The state demographer’s office has suggested this number is too low and released its own 90,918 estimate for the city’s population in 2015. A new federal population estimate as of July 2016, is due in May. But an actual census, rather than an estimate, has to be used in creating districts. If the population in one part of the city has grown or declined significantly relative to other parts of the city, any districts drawn right now could be off substantially.

Riggs said it is likely impossible for the city to initiate a new census to achieve fairer districts, a process that is both expensive and time consuming, and still meet the deadline in the bill.

“Essentially they’re forcing the city to redraw with numbers that are bad,” Riggs said.

Even without the constitutional issues, she said, the bill puts Asheville among a rare group of cities and towns in the state.

“A very small fraction of municipalities statewide elect their city council members from single member districts alone,” she said. “This takes Asheville out of the mainstream. It’s very inconsistent from traditional conservative principles that the folks on the ground know best.”

Asheville Mayor Esther Manheimer said the city is exploring its options as it moves ahead with citywide polling approved by the council to determine whether to hold a referendum on district elections.

Manheimer said the council has yet to discuss the issue and meet with legal counsel.

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She said the city’s attorney is reviewing how the council would have to draw the districts should it opt to comply with the bill, but is also looking at what legal course the city might take in the event it doesn’t want to comply.

For now, she said, there are all kinds of questions on how the council could move forward.

“One question is if Asheville elects to draw the districts themselves, then who draws them?”

Manheimer, who worked on redistricting issues when she was a legislative staffer, said the city could assemble an independent redistricting commission to do the work, rather than having a sitting city council do it.

Another issue of concern is how the districts will affect the city’s African-American residents. Although Asheville, unlike both Wake and Guilford counties, is not in one of the counties in North Carolina designated in the federal Voting Rights Act, the city still has to respect its principles.

For now, Manheimer said, the city is entering into the process knowing that the bill has a much better chance of becoming law than it did last year.

The opportunity to draw its own districts may help the bill clear objections raised by conservative Republicans last year, she said.

Despite that option for local input, she said, the bill still is a legislative mandate requiring specific changes.

“It still requires the six districts,” she said. “There’s not a lot of flexibility in that.”

Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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