Consolidation Talk Rehashes ‘One Man, One Vote’

On January 10, 2008, in News 2008, by Mark Norris

BILL DRIES | Memphis Daily News
January 10, 2008

Mark Norris and Walter Bailey are both attorneys. They both served on the Shelby County Board of Commissioners during the legal fight in the mid-1990s over how a Shelby County school board should be elected.

That is where the similarities end.

They remain on opposite sides of the basic legal question that has returned at the core of the community’s current discussion about the wisdom and legality of consolidating Memphis city and Shelby County governments.

Bailey said this week he believes the principles in the court case should be revived with a new court case. Norris’ take is that the legal question was settled then and there.

Memphis Mayor Willie Herenton kicked off the latest chapter in the nearly 50-year-long consolidation political saga last week by targeting the state law requiring two separate votes on consolidation – one in the city and one in the county. Herenton said he intends to ask Tennessee legislators to change the law to permit a single county-wide referendum.

Shelby County Mayor A C Wharton Jr. joined the consolidation call Monday, although that doesn’t necessarily include calling for a campaign for a single county-wide referendum.

But Wharton, an attorney, said he believes there should be one vote.

“We’re a highly mobile community and everybody ought to vote on it,” he said. “One vote ought to count. A majority ought to rule in one election.”

U.S. District Judge Jerome Turner ruled in 1996 that districts for the county school board could only cover areas in the county outside of the city of Memphis. And Turner ruled only Shelby County voters who live outside of the city of Memphis could vote in the elections to fill those seats. He based the decision, which was upheld on appeal by the Sixth Circuit Court of Appeal in Cincinnati, on the landmark “one man, one vote” decision in the Baker v. Carr case, also another case originating in Shelby County.

Balance or imbalance?

Norris, who is now Republican leader of the state Senate, and Bailey, now off the commission, differ as they did then on whether Turner’s ruling is the final word on how to weigh the votes of those who live on different sides of the city limits.

“With the outside vote having the veto power or having the power to reject consolidation, I see some real serious constitutional issues there involving ‘one man, one vote,'” Bailey said.

“I would like to see at some point somebody challenge it on the ‘one man, one vote’ premise. I must admit I haven’t done any research. But for fewer people to have their vote given the same weight as another block of folks that constitute a far larger constituency in greater numbers – it seems to me that there’s something imbalanced about that.”

Bailey indicated it’s not a legal challenge he’ll undertake on his own, at least.

“I don’t think so, not unless I’m hired,” he said. “I did all my free civil liberties work when I was a member of the American Civil Liberties Union.”

Norris’ opinion is that a single referendum is unconstitutional.

“It would be the same analysis as under ‘one man, one vote.’ You still have to go through that analysis to determine whether people in unincorporated Shelby County would be so outnumbered by people in the city of Memphis that they would be disenfranchised,” he said. “You’d have to analyze their financial contributions (to government). You have to analyze property values – taxing structure, all kinds of things like that to determine whether they have a vested right that would be so diluted as to be unconstitutional.”

Herenton filed a friend of the court brief in the county school board case arguing that since Memphis residents pay county taxes that go to fund county schools, they should have had a voice in the election of a county school board.

State government defended what was a state law requiring a countywide election including city voters.

Turner ruled participation by Memphians in the election would dilute the voting power of county voters outside the city. With district lines drawn to include the city, he ruled it was “likely” county residents would control only one of the five districts. “It is not only possible, but almost a given, that out-of-district residents will exercise overwhelming control of the board,” he wrote.

The case included calculations of who pays how much in tax revenues that finance the schools and their operation.

Forming cities

State Rep. Mike Kernell, D-Memphis, a 33-year veteran of issues that shift from government to the courts and back again, said the controversy touches on the basic premise for forming cities. It comes to rest on the issue of whether it’s as simple as getting majority approval when there’s a proposal to change the boundaries for citizens on both sides of the lines.

‘Whether or not you consolidate an entire county into one government is kind of a different issue,” he said. “That’s why the people both in and out of the city get to decide whether they want to do that. You can be part of a county or you can be part of a city or a city can annex you. But to consolidate requires both (sides).”

Herenton envisions a metro form of consolidation similar to what Nashville underwent in the early 1960s. He repeatedly has said such a consolidation would leave Shelby County’s six suburban municipalities untouched. Herenton went a step further in his remarks last week to the Memphis Kiwanis Club and said there was no need for the mayors and other leaders of those municipalities to be consulted by him about his plans for a single referendum.

Bartlett Mayor Keith McDonald disagreed.

“We have rights not to be conjoined with Memphis and he’s trying to take that voice away from us. I don’t believe that will get any traction,” he said.

“We are cities. We have equal status in the eyes of the law. … He just can’t get past that. We still need to sit down and talk about how we as cities of equal statute under the law need to work together to cooperate with each other. We’re willing to do that. Consolidation is not an option for us.”

The county school board case was appealed to the U.S. Supreme Court in 1998. The high court decided not to hear the case, leaving Turner’s ruling and the appeals court ruling that upheld Turner’s ruling.

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