VIRGINIA BEACH — The City Council voted this month to continue its appeal of a decision that found the city’s former local elections system was unfair to minority voters in Virginia Beach, leading to a new 10-district voting system.
A divided council on Tuesday, Jan. 18, agreed to continue to try to overturn a ruling that already changed the local voting system here – if only, perhaps, for this year. Local elections, including several City Council and School Board seats, are on the November ballot. Candidates for some offices already have turned in nominating petitions, though elections officials are seeking additional guidance before verifying signatures.
City Councilmember Aaron Rouse, who was elected to an at-large seat and lives within the new District 10, raised the question of the cost of continuing the appeal during a council workshop on Tuesday, Jan. 11, at City Hall.
“The cost of an appeal and this case is in the millions,” Rouse said. “We’ve already talked about being good stewards of the taxpayer dollars in finding tax relief, and we talked about the unmet needs of the community. But the people should also be told the cost of continuing this appeal.”
Rouse said the public should have a say about whether that continues, and he said he would bring forward a resolution for the council to decide whether the appeal should continue. He did so during the Tuesday, Jan. 18, meeting, but the majority voted on a substitute motion to keep the appeal going. The city has spent about $1.9 million on outside counsel and litigations costs, according to the city attorney’s office.
Following the council vote, the city rejected an appeal offer that would have let Virginia Beach pay only $1.6 million of the plaintiffs’ fees and costs if the city ended its appeal, rather than an estimated $4 million.
Plaintiffs Latasha Holloway and Georgia Allen are represented by the Campaign Legal Center in the case, and that nonprofit organization provided the settlement offer. Following the settlement’s rejection, Gerry Hebert, an attorney serving as co-counsel with the center, blasted the council majority for continuing the matter.
“The vote by a majority of the City Council to pursue their appeal is not only nonsensical, it should enrage every taxpayer in Virginia Beach,” Herbert wrote in a statement emailed to The Independent News on Saturday, Jan. 22. He criticized the city for gambling “another $2 million extra tax dollars to the plaintiffs’ lawyers who proved the city has a racially discriminating voting system.”
Hebert also noted that changes to state law mean the city cannot return to its old system, anyway.
“So what’s the point of appealing?” he asked in the statement. “It certainly can’t be to show that city officials treat people of color fairly. That train left the station years ago.”
Last year, U.S. District Court Judge Raymond A. Jackson found the city’s mix of at-large and seven district seats violated the U.S. Voting Rights Act because it denied Black, Hispanic and Asian-American voters a fair say in local elections. Under the now-defunct system, even people living outside of a district helped choose its representation. In December, Jackson ordered the adoption of a new 10-district plan that includes three minority opportunity districts and in which only residents of a district vote to pick their district representative.
The City Council last summer authorized an appeal, but that process was placed on hold until the resolution of a remedial phase of the district court process. The appeal has gone forward since the final order in late December. Oral arguments are scheduled for between March 8 and March 11. The city filed an updated appeal earlier this month that takes issue with Jackson’s ruling that the three minority groups can be considered a voting bloc.
During a public hearing prior to the vote, Andrew Jackson, a community activist who was involved in efforts to secure district voting for the city, said the city has battled the matter in court and spent millions.
“I don’t even know why we would think about spending another million playing with something that you’re not going to win,” he said.
“This should be over,” he added. “The judge made a decision. It’s over. … We’re diverse, and we need to act like we’re diverse.”
During public comment about the matter, community leader Gary McCollum thanked Rouse for bring the resolution forward, noting that the money, relatively speaking, may not be a lot. He questioned how the decision to pursue the appeal was made in the first place.
“Taxpayers need to know how this decision was made and where each of you stand individually,” McCollum said.
Even if the city wins the appeal, he said, it loses because it tells the world “you spent millions of dollars fighting to protect a voting system that discriminated against African Americans and marginalized communities.”
Rouse moved approval for the resultion to end the appeal, which was seconded by City Councilmember Sabrina Wooten. During discussion, City Concilmember John Moss, who has been vocal about why he supported the appeal, discussed his reasons. Moss noted that he has supported holding a referendum about district voting and has supported district voting for years.
“But, at the same time, a judge is a judge,” he said, noting that there are levels of the judiciary for as reason.
“The last I checked, no judge was the second coming, so they’re not perfect either,” Moss added.
Moss said the appeal is due to principle, and the ruling uses a coalition of minority groups as the basis of a finding of a violation of the Voting Rights Act. There are different opinions about this, and the Supreme Court has not weighed in on the matter.
He said the city appeal filing explains the decision to overturn the ruling. Moss said a decision best left to the people has been made by “judicial overreach.”
“This is about not whether we have districts or not,” Moss said. “This is about who draws the districts and under what legislation.”
Due to changed state law, now in effect, the city can no longer use to former system anyway, Moss noted. And he made a substitute motion to continue with the appeal.
City Councilmember Guy Tower said he read and was impressed by the city’s legal arguments.
“The issue in my mind at this point is not simply who’s got the strongest legal position. It’s obviously a position on which there are different judicial decisions. No one is going to be embarrassed in terms of the legal positions taken in this case. … They are rational bases for appeal, but there are rational bases for settling this case.”
Tower, an attorney and mediator, said partiers sometimes get deep into litigation, believing they are right, but sometimes there are opportunities to settle when more litigation will not achieve goals that outweigh the benefits of moving on from an issue.
“I think the time has come,” said Tower, who recently said he will not seek reelection.
The city knows the outlines of the districts that have been imposed, he said, and he doesn’t hear folks saying the districts themselves are unfair. The city is better off if it moves on, he said, though he understands the positions.
Wooten supported Rouse’s resolution.
“I don’t see any evidence, in my opinion, that would warrant moving forward with the appeal,” Wooten said.
“I think this is a real pivotal moment for us as a city in moving forward,” she added.
“I think it says something,” Rouse said, “when the only two minorities on this body, the only fourth and fifth elected African Americans to this City Council in its history, speak up against a federal lawsuit that was deemed discriminatory because it dilutes African Americans’ and marginalized communities’ voices throughout the city.”
Rouse and Wooten are Black.
Taxpayers need to decide whether continuing to fight is worth the money when there is a settlement that would lessen the cost to the city, which would need to pick up the plaintiffs’ costs, about $4 million, if it fails in the appeal.
He noted the celebration of Dr. Martin Luther King Jr. a day earlier because King was among the civil rights leaders whose work led to the Voting Rights Act. Rouse noted it is “eerie” to be one of two minorities on the council discussing points about discrimination and hearing it lost in legal discussion.
The council voted to continue the appeal, 6-4, adopting Moss’ substitute motion. Mayor Bobby Dyer and Councilmembers Linwood Branch, Barbara Henley, Rocky Holcomb, Louis Jones and Moss voted in favor of the appeal. Rouse, Tower, Wooten and Councilmember Michael Berlucchi voted against continuing. Vice Mayor Rosemary Wilson, who has supported the old system in past interviews, was absent.
On Wednesday, Jan. 19, Berlucchi in a letter explained why he voted to end the appeal process, noting that even a win for the city means “we will likely adopt a system that is effectively the same as the one ordered by the U.S. District Court.”
“I also believe it’s important to acknowledge racial and other disparities where they exist,” Berlucchi continued in the letter. “Many people have raised concerns about our former voting system on these grounds, and we have an obligation to consider those concerns when contemplating our next steps. We’ve spent enough time, energy and resources on this case.”
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