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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Citing a decision by Asheville City Council not to move ahead on creating council districts, the N.C. General Assembly last week began collecting comments on a redistricting plan of its own.

A comment form posted last Thursday notes legislation passed last year that was intended to force action on the districts and the city’s decision not to alter it’s charter as required.

“It is therefore the intent of the N.C. General Assembly by virtue of S.L. 2017-83 to design the new city council districts,” the form states. “The N.C. General Assembly is now seeking input from the public on the criteria that might be considered in order to draw these city council districts. Please submit suggested criteria, ideas, or plans using the form below.”

In a statement released shortly after the link to a comments form was posted on the General Assembly web site, Sen. Chuck Edwards, R-Henderson, said he is pushing ahead based on legislation passed last year giving legislators the authority to create districts if the city did not act.

“It was my sincere hope that the leaders of Asheville would take the time they were granted to draw the districts without the need for intervention by the General Assembly,” Edwards said in a statement released last week. “I regret that they have not responded, nor have they offered other solutions.”

Asheville Mayor Esther Manheimer said she was disappointed but had expected Edwards to move ahead despite a referendum last year in which 75 percent of city voters rejected the district proposal.

“We asked the voters and the voters said ‘No,’” she said in an interview last week. “We have not taken steps to impose districts on Asheville because the voters don’t want us to.”

Manheimer said that, in discussions over the past few month, Edwards said he did not recognize the validity of the referendum and was intent on moving ahead despite the results.

The mayor said she expects the council to review the likelihood of legislation and city’s options. The council, she said, has two new members since the bill was passed last year.

“If legislation is passed this summer that imposes districts on Asheville the council will have to decide whether or not it wants to challenge the districts in court,” she said. “We just haven’t had that conversation yet.”

Districts plan caught House off guard

Rep. Susan Fisher, D-Buncombe, said she and other House members had no advance notice that the effort was moving forward. She said she only found out after the link to the comments form showed up on the General Assembly web site.

“I don’t know how that suddenly appeared, but he’s doing what he said he’d do,” she said of Edwards. “Elections are supposed to be up to people not up to politicians in Raleigh. It’s kind of a grandstanding exercise, if you ask me.”

Fisher said she’s not sure whether House members will be swayed by the referendum results.

“What’s clear is that voters sent a message during that referendum that they don’t think districts are necessary in city council elections,” Fisher said. “I don’t know how much sympathy there will be for that in this House, but it’s a fact.”

She pointed to the election of Vijay Kapoor a resident of from the southern part of town, as evidence the current system is working.

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Asheville’s council members are currently elected at-large, with no districts. At the time of the 2017 proposal, no sitting council members lived in the southern, far western or eastern proposed districts, which combined included about half the city’s population. While this drew criticism about the difficulty outlying areas of the city experience in obtaining a representative of their choosing, the election of Kapoor, the top vote recipient city-wide in November, has somewhat undermined that concern.

Edwards did not release a schedule for hearings on legislation, but an aide to the senator said last week that the bill would probably be handled by the Senate Elections Committee and that comments and materials submitted to the General Assembly as part of the comment process will be available to the public.

Last year, Edwards’ bill calling for electing the city council from six single-member districts passed the Senate by a wide margin. The bill faced a tougher time in the House where it was amended to include an option for the city to use an independent redistricting committee to help draw the districts. The amendment, put forward by Buncombe County Democratic Rep. Brian Turner, passed 101-12 and marked a first-time win for redistricting reformers who have called on the state to use independent commissions in drawing new districts. Turner voted for the redistricting bill on second reading, but against it on the final 63-47 vote that approved the bill.

The legislation gave the city council until Nov. 1, 2017, to amend its charter and draw new district lines, which would take effect starting with the 2019 municipal elections. If the council failed to adopt the districts, the law says the General Assembly is authorized to redraw the districts this year.

Instead of drawing districts, the city council opted to put a referendum on the November ballot asking voters to approve the creation of geographical districts.

In his statement, Edwards, whose Senate district include a southern portion of Asheville, said he remains committed to the goal of getting broader geographical representation in on the council.

“Every citizen is entitled to a government that can function within its smallest possible footprint,” Edwards said. “Districted representation enables elected officials to be more responsive and more accountable to its population.”

His success last year might be more difficult to duplicate this session given the fate of a prior short session effort to draw districts for Asheville.

In 2016, Sen. Tom Apodaca, R-Henderson, tried to strong arm a similar redistricting bill through both chambers as the short session wound to a close.

To do so, Apodaca circumvented a rule prohibiting controversial local bills in the short session by saying his particular local bill was exempt because it pertained to elections. Apodaca’s redistricting bill was vehemently opposed by the rest of the Buncombe delegation and other Democratic legislators who were joined in the fight by several conservative GOP House members who opposed the Senate’s rule bending.

The eventual collapse of the redistricting bill in a close House vote blew up a set of House and Senate end-of-session deals and brought the 2016 session to an abrupt end.

Last year, in the long session, the consensus rule on local bills did not apply, but this year it is once again in effect and getting around it could again complicate the process.

After sponsoring Edwards’ bill in the House last year, Rep. Chuck McGrady, R-Henderson, said he’s in favor of the effort to gather input, but that it’s too early to comment on whether he’ll co-sponsor a bill in the House this year.

“I was aware he was going to solicit input on the maps that the City of Asheville didn’t draw,” McGrady wrote in an email response to Carolina Public Press. “I support his soliciting input. My preferred outcome would be for Asheville leaders to work with Sen. Edwards on the maps, but I don’t think that is going happen. It is premature to decide who might carry the bill in the House, since no bill has been drafted and introduced.”

Legal fight looming

Local legislation is not subject to veto by the governor, but the legislature may not have the last say on changing Asheville’s elections system. The city and the legislature have a long history of court fights and in the case of legislative intervention in local elections recent cases have bolstered the city’s chances or at least the odds that they will take the state to court should a new bill become law.

Last April, a federal court struck down legislation changing municipal districts and elections in Greensboro.

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In a strongly worded ruling, District Court Judge Catherine Eagles wrote that even though the state constitution gives the legislature broad powers over local governments, it cannot violate the federal equal protection clause in doing so. She pointed to unequal districts, a “truncated” legislative process and apparent violation of the legislature’s own rules in striking down the law. Eagles said she saw a similar legislative intent to game the districts for partisan advantage as a prior law aimed at Wake County school board districts that was also struck down.

“The United States Constitution does not allow an electoral system which makes one person’s vote more powerful than another’s. Nor does the Constitution allow a system which gives governance and electoral rights to one group of citizens while prohibiting another group of citizens from exercising those same rights, with no legitimate governmental purpose,” Eagles wrote in her conclusion.

Both the state Attorney General’s office and the legislature leadership, which had standing in the case, declined to defend the Greensboro law, making it easier for the plaintiffs.

Both Manheimer and Fisher said they believe the outcome in the Greensboro case spells out what could happen in a future Asheville case.

Manheimer said in the Greensboro case, the court found that the city was being treated differently than other cities and that was a violation of equal protection rights.

“That’s going to be pretty relevant for any other city in North Carolina, including Asheville,” she said.

There are further concerns over the legality of the law if the districts drawn in 2018 are based on 2010 Census data. Edwards said last year that the legislature is likely to use the districts drawn up by Apodaca in 2016.

The city’s rapidly growing population has changed considerably since the Census, Manheimer said.

“I don’t know whether they will use the same districts or not,” Manheimer said, “but I’m not sure they can use those districts and still be valid within the requirement of one person one vote.”

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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