Smith: “Kitchen table” council redistricting plan a “clear misunderstanding of the people’s right to equal protection under the laws ... "

The following statement is written by local bookseller Randy Smith, a former member of the NAC team and a plaintiff, along with the senior editor, Bluegill and more than a dozen other citizens, in a redistricting lawsuit addressing the city council’s failure to provide fair representation through fair redistricting.

The council will be holding a public meeting about redistricting today at 2:00 p.m., and this statement will be read aloud then. In spite of the inconvenient timing, readers are urged to attend.

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Some members of this council seem to have taken umbrage to my previous attempts to communicate with this council. Of course, now we are communicating THROUGH counsel. Nonetheless, I thought it prudent to read from prepared comments so as to avoid offending you.

I think it is a great thing that you are offering the people this scant chance to participate in their government as you discuss perhaps the most important element of our democratic system – the right to be fairly represented.

I’m not sure, however, that this body understands the seriousness of what it proposes to undertake. Drawing fair legislative districts is not the type of thing you can ask a relative to do one weekend at the kitchen table. Drawing fair legislative districts has nothing to do with fitting a size 14 foot into a size 9 shoe.

Rumor has it that the lone plan you are considering has done nothing to address the unequal representation inherently present in our current precinct boundaries. It is not enough to treat the disease, wish the patient well, and send her home to die. It is especially not enough when a cure is possible. It would be unethical for a physician to say a disease is inoperable without at first examining the patient.

Such examination as this council has purportedly performed constitutes malpractice. And yet, you are rushing your patient, the one you each swore to protect, out the office door without offering anything more than platitudes.

Despite what you may have been told, a population variance between districts of 8, 9, or 10 percent is not permissible under Indiana statutes (I.C. 36-4-6-3). Municipal districts “shall contain as nearly as possible, equal population.”

(b) The legislative body shall adopt an ordinance to divide the city into six (6) districts that:

(1) are composed of contiguous territory, except for territory that is not contiguous to any other part of the city;

(2) are reasonably compact;

(3) do not cross precinct boundary lines, except as provided in subsection (c) or (d); and

(4) contain, as nearly as is possible, equal population.

(c) The boundary of a city legislative district may cross a precinct boundary line if:

(1) more than one (1) member of the legislative body elected from the districts established under subsection (b) resides in one (1) precinct established under IC 3-11-1.5 after the most recent municipal election; and

(2) following the establishment of a legislative district whose boundary crosses a precinct boundary line, not more than one (1) member of the the legislative body elected from districts resides within the same city legislative body district.

(d) The boundary of a city legislative body district may cross a precinct line if the districts would not otherwise contain, as nearly as is possible, equal population.

(e) A city legislative body district with a boundary described by subsection (c) or (d) may not cross a census block boundary line:

(1) except when following a precinct boundary line; or

(2) unless the city legislative body certifies in the ordinance that the census block has no population and is not likely to ever have population.

(f) The legislative body may not adopt an ordinance dividing the city into districts with boundaries described by subsection (c) or (d) unless the clerk of the city mails a written notice to the circuit court clerk. The notice must:

(1) state that the legislative body is considering the adoption of an ordinance described by this subsection;

(2) be mailed not later than ten (10) days before the legislative body adopts the ordinance.

(g) The division under subsection (b) shall be made:

(1) during the second year after a year in which a federal decennial census is conducted; and

(2) when required to assign annexed territory to a district. This division may be made at any other time, subject to IC 3-11-1.5-32.
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(l) A copy of the ordinance establishing districts under this section must be filed with the circuit court clerk of the county that contains the greatest population of the city not later than thirty (30) days after the ordinance is adopted.

Section 23. of the Indiana Constitution enumerates in its Bill of Rights this language: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

The United States Constitution provides in its 14th Amendment that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

When a council member publicly states that, “Bill Schmidt is retired. He has enough time to represent more people,” then that council member is demonstrating a complete ignorance of representative government as it existed, oh, say, 45 years ago.

When a council member says “We have more important things to do,” then that council member shows a clear misunderstanding of the people’s right to equal protection under the laws and equal representation.

I will grant that this council, as constituted, did not commit the original violation of Indiana law that showed such contempt for the people’s rights. More than one of its sitting members did violate that law, though.

One of those members, your current president, knowingly made demonstrably false claims about the currently pending lawsuit regarding redistricting of city legislative districts. I know that he did that in full knowledge of what he was doing, although I doubt he recognized the consequences of misrepresenting the words of a federal magistrate. I suspect that he did it deliberately to railroad this council, to panic this council, to disrespect this council and motivate it to act with haste and without deliberation. In other words, to PRETEND to cure the disease and then hope that the “troublemakers” will go away.

Your president told you, during your regular council meeting just nine days ago, that “the judge” has ordered you to redistrict by November 22, 2007. No such order exists. As a party to the current lawsuit, I would know. As parties to the current lawsuit, you should know. Ask your president to show you that order before you act hastily and extend this council’s illegal refusal to create districts that “contain, as nearly as is possible, equal population.”

Your president told you, during your regular council meeting just nine days ago, that “the judge” would not allow more than one public hearing with regard to redistricting. No such order exists. As a party to the current lawsuit, I would know. As parties to the current lawsuit, you should know. Ask your president to show you that order before you act hastily and extend this council’s illegal refusal to create districts that “contain, as nearly as is possible, equal population.”

When you discover that I am telling you the truth and that he is not, ask yourself whether you are being treated with the respect due to you from a colleague. Ask yourself if you are being played for a fool, and ask yourself who it is who thinks you are so annoyed by a simple public interest lawsuit filed by your constituents that you would blindly proceed to compound this folly.

Furthermore, I will testify to you that the plaintiffs in the relevant lawsuit have no desire to compel this council to act in haste, and certainly no desire to force a redistricting except within a reasonable period of time. We, as you know, asked for a deadline of June 30 of next year. We, as you know, asked for the maximum amount of sunshine and public participation. It was your representatives who sought to bring forward a kitchen-table plan in the midst of an election campaign.

Yes, we are scheduled for a court date in early December. We are even closer to the beginning of sworn evidentiary depositions and subpoenas for the production of relevant documents. We, the plaintiffs, and your representatives, have every reason to believe that the council, and the city will lose the case on its merits. If you have not been informed of that reality by those representatives, please take the time during this meeting to ask THEM why I might say such a thing.

Ask your representatives how they answered the question regarding whether this council had, at present, the requisite expertise to do ANY lawful redistricting, much less to proceed with an unexamined kitchen-table plan. Ask them what the estimated costs are for demographic experts and consultants on both sides of the lawsuit, not to mention the legal fees and deposition costs that lie ahead. And ask them who will be required to pay those expenses, fees, and costs.

Then know this: It is not the plaintiffs who are pressing for an ordinance in November. It never occurred to us. That was the defendants’ proposal. We are convinced that there is no good faith behind your offer and we are preparing for a December trial. The passage of an ordinance prior to December will not forestall a trial – it will make it an even messier and more contentious affair, at great cost to all residents of the City of New Albany and to your reputations.

Isaiah 1:18 records this scripture: “Come now, and let us reason together, saith the LORD: though your sins be as scarlet, they shall be as white as snow; though they be red like crimson, they shall be as wool.

I believe that a majority of this council can set aside its annoyance with us constituents/plaintiffs and come to an agreement that delays the lawsuit and all its financial and reputational liabilities. A reasoned, deliberate, exaggeratedly public process will serve the city you represent and set a sterling example for future deliberations of this council.

I will not address the other items of recent discussion that all of you are aware of. These were and are shameful and it is to the credit of this body as a whole and, I suspect, to its counsel, that those repulsive intentions were never subjected to wide public scrutiny. Had this council acted on those malicious intentions, far more than legal challenges would have ensued. I have little doubt that felony indictments would have been issued.

Much to my amazement, not to mention the amazement of many who know me, I stand here with an olive branch, provided this council does the right thing. Give us a call. You know the numbers.