Ed. — From the Sunday, April 11, print edition.
VIRGINIA BEACH — A federal judge on Wednesday, March 31, ruled that the city’s at-large system of electing local officials is illegal because it limits the ability of minorities to have a fair say in selecting City Council and School Board members.
In a long-awaited and lengthy decision, U.S. District Court Judge Raymond A. Jackson sided with two Virginia Beach citizens, Latasha Holloway and Georgia Allen, who argued the at-large system here “dilutes the voting strength of Black, Hispanic and Asian American voters” preventing “minority voters from participating in the political process and electing representatives of their choice.”
Jackson ruled that the system is in violation of the federal Voting Rights Act and can no longer be used. It is possible the case will be appealed – Holloway told The Independent News she expects it, though city officials have said no decision has been made.
As it stands, this marks the second major rebuke of the system in the past month.
Over the course of its 133 pages, the sometimes strongly-worded order addresses inaction on matters involving people of color and fair access to governmental power. Jackson found that the city can no longer use its “at-large” system and cannot adopt any other system that does not comply with the law. Virginia Beach has been ordered to pay expenses and legal fees for the plaintiffs, which have not yet been determined.
The Virginia Beach system has been criticized for years as favoring moneyed candidates and denying people in some areas of the city the right to choose their own representatives. All voters within the city selected all members of the City Council and the School Board, even representatives of seven residency districts, which are geographically distinct areas. That means even district seats are selected “at-large,” or by all the voters, so people outside the residency districts determine who represents them.
In the weeks prior to the ruling, Gov. Ralph Northam signed into law legislation that throws out the ability of voters outside a district or ward to determine elected representation for the people who live within such an area. For Virginia Beach, regardless of any appeal, next year’s local elections will look much different. During an interview, Holloway said the lawsuit influenced the introduction of the legislation.
“This changes everything,” said Holloway, who recently founded the Virginia Beach Coalition, an organization that aims to amplify the voices of people who aren’t being heard. “We will have an opportunity for people on the council who are reflective of communities that have historically been ignored.”
Holloway initially filed the suit herself, and she was joined by Allen, a longtime community leader who led the local NAACP chapter for a decade and ran for a City Council seat. The Independent News could not reach Allen for comment.
“This hurts everyone when you exclude entire populations of people from the conversation or any opportunity to make decisions in a municipality,” Holloway said. “It is discriminatory. It is racist. … What I would like to see now is a voting system that will equitably distribute power throughout the city. It will allow people to have an opportunity to express the concerns of their community.”
The plaintiffs were aided by attorneys from the Campaign Legal Center, a nonprofit advocacy group that focuses on voting rights issues, which applauded the ruling in a statement at its website and said the court may have proceedings to ensure the city’s next voting system complies with the law.
“This victory is the successful culmination of a decades-long process of communities of color advocating for the city to change the at-large district model and institute a system that is fair,” the center said in its statement.
“Justice prevails!” added the Virginia Beach Interdenominational Ministers Conference, which has long advocated for equity in the city, in a Wednesday, March 31, social media post that alluded to Easter. “The at-large voting system in Virginia Beach is declared illegal. A Holy Week indeed!”
The lawsuit was heard in court this past October, and other events added to the uncertainty about the voting system while officials awaited Jackson’s ruling. Northam in March signed into law a bill introduced this year by state Del. Kelly Fowler, D-21st-District, a lawmaker from Virginia Beach who challenged the logic of people outside a district determining its representation. Fowler was called to testify in the federal suit and spoke of her own experience as a person of Filipino and Mexican heritage seeking office.
Along party lines – and over the objections of several Virginia Beach elected officials, some of whom pointed to the then-undecided court case as a reason to hold off – the General Assembly backed Fowler’s bill, which, as law, will go into effect before the 2022 local elections in Virginia Beach.
Fowler submitted her legislation without consulting the city, but this followed an effort this past year to ask city voters via referendum about whether to continue the system. A divided City Council declined to hold a referendum in 2020, in part, due to the pandemic. Amid pressure of the suit and Fowler’s bill this year, some city officials had discussed doing so this year.
On Monday, March 22, the city in a court filing said the signing by the governor of Fowler’s bill [HB2198] prohibiting people outside districts from voting for representatives of said districts meant the city’s system is no longer permitted by law, making the federal complaint moot. On Friday, March 26, the plaintiffs responded that their rights were still being violated, and, essentially, there was no guarantee the problem would not happen again under a new system.
“The electoral system challenged by the plaintiffs remains in effect,” the plaintiffs argued. “The councilors elected under that unlawful system remain in office. The new statute – effective in 2022 – retains for the city the power to maintain an all, or partially, at-large electoral system.”
The City Council discussed the ruling on Tuesday, April 6, during a closed session. It is not certain how Virginia Beach will now navigate the requirements of both the federal ruling and new state law. The court filing by the city suggested that next year’s elections would “have a seven-district ward system with only the voters who reside in each ward eligible to vote for the ward representative” as well as, unchanged, four at-large seats selected citywide. On the council, the mayor is among the four at-large office holders who can live anywhere in the city and who are elected citywide. These four at-large seats would not change, the city’s lawyers stated in the filing made just prior to the ruling.
Fowler, in an interview earlier this year, said the effect of her legislation would result in a similar approach toward meeting the law, but that is not certain. Others have suggested, for example, the city could end up with a system in which the mayor is elected at-large and some number of other seats, perhaps 10, would represent districts.
Mayor Bobby Dyer on Thursday, April 8, said the city faces a challenge due to state legislation and the decision, as well as a redistricting process dependent upon Census data. He said the council will have discussions and try to move forward. “What’s remaining now is we have to decide whether we’re going to have seven or 10 districts and create two minority-majority districts,” Dyer said. “Even if we appeal, the way I read the tea leaves is our prior form of voting is over.”
City Attorney Mark Stiles on Thursday, April 8, said whether the city might appeal will be discussed with council members.
“We still have considerable uncertainty as to what the new voting system looks like,” he said. “We know the system will be different, but in light of the court’s ruling, we don’t know how it is going to be different.”
In a statement posted to social media the day the ruling was released, City Councilmember Jessica Abbott, who represents the Kempsville District and last year advocated for a referendum to let people decide whether the at-large system should remain, wrote that the court had not specified what the new city voting system will look like.
“Recently enacted state legislation prohibits at-large voting for the city’s existing seven residence districts beginning in 2022, so the Virginia Beach system was already going to change,” Abbott wrote in the post. “How this court ruling will influence the future election system still remains to be seen, but for multiple reasons it appears the all at-large system will be abolished.”
City Councilmember John Moss, who holds an at-large seat, in another social media post wrote that he believed the city will have at least seven districts or wards and possibly 10. “We now have his ruling and now we just need to see what remedy is approved,” Moss wrote on Wednesday, March 31. “When the remedy is known, then City Council will then have to assess its legal options.”
City Councilmember Barbara Henley, who represent the Princess Anne District, on Wednesday, April 7, said in interview there is very little information about what elections will look like here next year due to the ruling, the Fowler bill, other state legislation and the redistricting process that normally happens after the U.S. Census.
Henley, who opposed the Fowler bill and has supported the at-large system as it exists, is among the officials who could be on the ballot next year. Henley said she has not decided whether she will run again.
“We are in such a mess,” Henley said. “The thing is we don’t know anything right now. Where do we go from here? The answer is, right now, nobody knows.”
Henley said the current system evolved from concerns about rural issues during the merger that led to the modern city, and rural concerns of her district are among the reasons she has supported the at-large system. She and others have argued it gives citizens a chance to vote for everyone who will make decisions on their behalf.
“Our ability to look at the city as a whole is gone,” Henley said, calling the at-large system one that has served the city well for many years. “People are going to be elected to only be answerable to a small group of people. We have always been answerable to all citizens of the city.”
The ruling is critical of how Virginia Beach leaders have addressed concerns of minority citizens, and the opinion dealt, in part, with the city’s slow response to calls for a study of the disparity in contracts awarded to minority firms. The city waited years before conducting such a study and did not always provide timely resources for achieving goals, according to the ruling.
“The court concludes that the city’s decades-long refusal to conduct a disparity study, as well as its results, is a prime example of the city’s unresponsiveness to the minority community’s needs,” Jackson wrote.
The city has set targets to improve procurement goals, and the judge notes that some steps forward came after the filing of the suit. Jackson found a “consistent refusal” to address basic requests such as the study, and he noted that the study itself shows the economic challenges minority communities face in participating on a level playing field.
Given “the high rates of poverty, low incomes and lack of intergenerational wealth, it is no surprise that the minority community lacks the capital to create businesses or participate equally in the city’s economic development,” Jackson wrote.
Holloway, during an interview, said, “The city’s aware of the disparity. The city is aware they have been excluding people of color. We have not been able to make decisions for ourselves and our own communities.”
Among those who testified in October was Allen, who has lived in the city for nearly six decades and is known to many as the former president of the local branch of the NAACP from about 2001 to 2011 and for her service on the Virginia Beach Human Rights Commission, among other community work. Holloway said Allen’s experience as a candidate was important to the case.
According to a transcript, Allen testified that the NAACP has long advocated for fair hiring practices in public safety, as well as in city contracting. She also helped lead the Community Coalition for a Better Virginia Beach, which in the 2000s joined minority communities together to support diverse candidates for public office – and that people argued that Virginia Beach’s at-large system “does not allow reasonable elected representation from the current diverse population of the city.”
Allen sought an at-large City Council seat in 2008, challenging City Councilmember Rosemary Wilson and ultimately placing second among five candidates. Allen was vastly outspent, raising less than $6,000. Wilson raised more than $130,000, according to the Virginia Public Access Project.
“I felt it was important that the community had representation,” Allen testified in October, “and so it was important for me to, hopefully, open up a door.”
In addition to explaining that she ran to provide representation for people of color, Allen testified about the practical challenges of seeking office when candidates must campaign throughout Virginia’s largest city.
“Well, of course, when you are a candidate who is not financially wealthy, that can be a challenge in and of itself in a city the size of Virginia Beach, and so financially that was a challenge.”
Allen said she might have been elected to the City Council under a different system.
“Because if I didn’t have to run in the whole entire city, I could have narrowed my focus on a geographical area, which would have allowed me to get to more people in the entire city that could directly vote for me in a smaller group,” she testified. “So I feel that if it was in a smaller group, I could have had a much better outcome and won.”
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