Consequences

The integrity of government is our topic today.

Representative government depends on each resident being able to count on equal representation.

In New Albany, Indiana, that is most definitely not the case. And a majority of the current city council couldn't care any less.

First, let's talk about the law.

IC 36-4-6-3 is the controlling statute. It requires the legislative body (the city council) to redraw its district boundaries every ten years.

After each decennial census - 1990, 2000, 2010 - local and state governments are provided with their official census numbers, their populations.

The population numbers for New Albany were reported in 2002.

In that year, the council was required to create six districts with populations that are equal, as nearly as possible.

That they did not do. A council that included Maury Goldberg, Dick Bliss, Larry Kochert, Bill Schmidt, and Dan Coffey could not or would not redraw the existing 1992 boundaries. Since 1992, populations have shifted significantly and New Albany has added a significant number of new residents by annexation.

As the story is reported, none of the council members elected from districts was willing to pick up new constituents or give up old ones.

That council was still arguing over districts in November of 2002 when state law kicked in, stopping in its tracks any efforts to redraw the districts. You see, council cannot redraw districts within one year of a city election. Since 2003 was an election year,waiting until mid-November to redraw was a fatal error.

What that meant was that all six of the members elected from districts in 2003 were elected from unequal districts, and they knew that. Democrat Beverly Crump defeated Republican Dick Bliss and was elected from the smallest district, District 5, with a population of approximately 5,300.

Meanwhile, in District 2, incumbent Democrat Bill Schmidt was elected to his final term, representing a district with a population of approximately 8,800.

Those are the extremes, but all six districts were either too large or too small, based on the 2000 U.S. Census.

That council was replaced in the 2007 elections, so those clearly illegitimate 2003 elections are a moot point.

But what is not moot is the legitimacy of the 2007 elections. We've now had two consecutive elections that were patently illegal.

Perhaps, PERHAPS, the 2003 election was understandable. The relevant statute both REQUIRED that sitting council to redistrict and PROHIBITED them from doing so after mid-November. No one challenged it, by the way, but it was nonetheless unlawful.

Which brings us to 2004, 2005, and 2006. No matter what happened in 2002, by 2004 the city council knew its districts did not comply with the law. The disproportionate populations were a matter of common knowledge and frequent conversation in the city. Many informal discussions of the situation took place. Though some council members today claim they "did not know," the truth is they DID.

In May of 2006, 20 residents filed suit in the U.S. District Court for the Southern District of Indiana, New Albany Branch, to compel the council to comply with the statute. The suit was filed at that time so that the council would have plenty of time to follow the law and not to repeat the willful disobedience seen in 2002.

Instead of moving immediately to comply with the law, the city council fought tooth and nail to continue to violate IC 36-4-6-3. As a consequence, ANOTHER election was held under an illegal district scheme. To date, the city council districts are severely out of balance, severely unequal, and clearly in violation of the law.

And for all six of the council members elected from districts, their right to continue to hold office is questionable.

Now, as I read the law, declaring those seats vacant might make no difference. Unless a court ordered it, no new elections would be held when those seats are declared vacant. On petition of a resident with standing (you, me, some other guy), a court will absolutely order the council to immediately redraw the districts to comply with the statute. There is zero chance that the city can win on that issue.

New districts that are equal WILL BE DRAWN and will be drawn THIS YEAR.

Additional remedies are up to the petitioners and the judge. If petitioners ask that the illegal seats be declared vacant, and I predict that will be part of a suit, the judge is more likely than not to grant that remedy.

What would likely happen then is that the Democratic Central Committee will scramble to appoint six council members. The Republicans won't be involved, because they have no party members elected from districts. In fact, the only Republican on the council is Kevin Zurschmiede, elected at-large. Since none of the at-large members were elected illegally, they would stay in office.

BUT WAIT.

The Democrats could not appoint replacements unless a legal district plan were in place. If there are only three legal council members,they could not act.

What a mess! All of this could have been avoided if the last council had acted in accordance with the law. And it probably wouldn't be necessary now if Jeff Gahan and a council majority would draw lawful districts now.

Instead, the council majority, and most particularly council president Gahan, are digging in. They say that they are no longer under any obligation to draw new districts.

THEY ARE WRONG!

Mr. Gahan has revealed his plan. Want to know what it is?

The Gahan plan is to conduct a THIRD election under the illegal districts, and I think he believes he can get away with it.

So. New Albany is in a pickle. The legitimacy of the city council, our legislative body, the people who authorize all spending of city funds, the people who decide where this city goes and how it gets there, the people who authorize us to borrow money, is at stake. Under the law, not one of the six members from the districts was elected legally.

Call it a gerrymander, call it an incumbent protection racket, call it whatever you want to call it. That's in the past, though.

What's at stake right now is the next election. Whether you are completely happy with your current council member, or totally appalled and embarrassed at who purports to represent you, you deserve to know three things.

One: Will the next election be fair if the districts are unequal? Two: Which of my neighbors will share the district with me? Three: Who is running or should be running?

You deserve certainty. The incumbents deserve certainty. New Albany deserves certainty and fairness.

Why is Jeff Gahan opposed to that? Why is Mr. Gahan saying we should let a third election be conducted under unequal districts that will be 19 years out of date?

Now, I've been talking about what you deserve. A lot of people who don't know me, don't understand me, and have no intention of getting to know me, everything I've said is being filtered through rumor and hatred.

But you know what? It doesn't matter.

It doesn't matter if you believe I favor redistricting because I want to "get" somebody, to take someone out. Maybe I do, maybe I don't. It doesn't matter. It makes no damn difference whether I or anyone else has a political agenda. It makes no difference if I or anyone else wants to replace a council member with someone else.

It's the law, completely and fully settled, that says the districts MUST be redrawn.

Shadow5, a blogger, put up a posting called "Twelve Questions." It deserves to be reposted here.

FIRST: Is the council obligated to redistrict? Yes. Indiana state law requires it.
SECOND: Has the council redrawn the boundaries? No. The districts today are the same as they were in 1992.
THIRD: What does the County Commission have to do with this? Nothing. They are not empowered to say or do anything with regard to the legislative districts of a city of the second class.
FOURTH: How about the County Clerk? Nope. The council does have to give the clerk ten days notice in certain instances and does have to implement elections based on the districts, but the clerk otherwise has nothing to say about it.
FIFTH: Who can redraw the districts? The council, and the council alone.
SIXTH: What if they don't? Or what if they draw illegal districts? Someone must ask a court to order it done.
SEVENTH: Does it matter? According to the U.S. Supreme Court, it does.
EIGHTH: What will happen if someone sues? The court will order the council to draw legal districts.
NINTH: What if the council refuses to draw legal districts? They could appeal the order, and lose, and appeal the order, and lose. Then they could be fined or jailed if they continue to refuse.
TENTH: Who would pay the fine? Probably the taxpayers.
ELEVENTH: If they go to jail, how would they get out? They wouldn't until they agree to draw legal districts.
TWELFTH: What if they agree to do it, but don't? They will go to jail again. See ELEVENTH question.

Wow.

But why would they even consider NOT redrawing the lines? Are they that dumb?

It appears that they might be. With Gahan taking the lead to propose doing nothing until 2012, he's lost all credibility as a legislator.

For a lawmaker, and make no mistake about it, that's precisely what a council member is, to advocate willful violation of the law, should be a disqualifying event. Whether you like Gahan or not, how could you vote for him when he admittedly is leading his colleagues to violate a law so fundamental to representative government?

Isn't that official misconduct? Is willful violation of the law a felony? As it stands right now, Mr. Gahan wouldn't deny his intention to continue to flout the law. I can't redraw the districts. You can't redraw the districts. Only the council can redraw the districts, and Mr. Gahan and his cohort have no intention of doing so.

Over the course of the last 26 months, a lot of crap has been put out by the council, their lawyer, their supporters, and frankly, by people who have been fed a big lie, who've been told that this is an ANTI-DEMOCRATIC attempt to subvert democratic government, that the residents of New Albany who want to see the law followed could only be asking for it because they don't like the players.

Listen to me. IT IS WELL SETTLED LAW THAT LEGISLATIVE DISTRICTS MUST BE EQUAL IN POPULATION, or at least as equal as possible.

Now, it might once have been a little unsettled. Heck, there was a time when state legislative districts, and even congressional districts, were allowed to be unequal. But around 1960, the U.S. Supreme Court declared that state districts must be equal. The case is Baker v. Carr. EVERY LAWYER knows it. Since that time, the case law has been refined and since at least 1994 there has been absolutely no question that states and cities could not draw unequal districts.

Equal representation is a right. For every degree that districts are unequal, somebody is getting the shaft. Somebody is being over-represented at the expense of somebody in another, larger district.

That's not permitted. The Constitution of the United States requires equality.

But even if that weren't the case, the Indiana Code demands it. It's beyond belief that any council member or any lawyer could say that the law and the Constitution don't apply to New Albany.

We live in a strange place, but the last time I looked we were in Indiana and in The United States.

If Mr. Gahan and his, I have to say it, partners in crime, wish to operate under a different set of laws, they had better take it up with the legislature. I don't know how they can figure out how to secede from the United States, but maybe they can get Bill Cochran and Connie Sipes to push a special law exempting them from the law statute.

Even then, the U.S. Constitution will apply, so start figuring out which side you are on.

Are you on Jeff Gahan's side or the side of the law?
Are you on Diane McCartin-Benedetti's side or the side of the law?
Are you on Dan Coffey's side or the side of the law?
Are you on Steve Price's side or the side of the law?

Now, Steve Price (now) says "let's redraw the districts." Maybe he's sincere. ummhmm. Has he called for a special meeting of the council yet?

Side with the criminals or side with the law.

Side with the criminals or side with equal representation.

Side with the criminals or side with fair elections.

Side with the criminals or side with the rights of the people.

No individual OWNS a legislative seat. Mr. Gahan and his pals can't violate the law without paying the price.

Dismiss everything I've written here, if you will. But neither you nor Mr. Gahan will be able to dismiss the very same analysis when it is delivered from the bench of the U.S. Federal District Court.

And it will be. Soon.

Then, will you still be siding with the criminals? Or will you realize that YOU are being betrayed, that you are being treated like a tool, that you are being used to do someone else's dirty work and helping them steal democracy from New Albany?

I imagine some of you actually won't realize it. Happy lawbreaking!

P.S. Mayor England and his staff make a big deal about how they are "glad" they don't have to deal with this. Is that the kind of leadership that was expected? Should the mayor and his staff be "warning" people to "lay off?" Should Carl Malysz be wielding the power of his appointed office to intimidate residents. Should Mayor England be allowing that? It looks pretty fishy to me when the mayor and the council president are together working to foster such blatant lawbreaking.

But that's just my opinion. Just ask Steve Price if I'm entitled to it. Or better yet, ask Prosecutor Keith Henderson.