A date for the election of Beaumont Independent School District trustees is still uncertain as recent court rulings and case filings give way to even more court proceedings anticipated in the coming days. BISD attorney Melody Chappell has maintained the district is “hopeful” that a Nov. 5 election will be forthcoming. However, Jefferson County District Attorney Tom Rugg said the county’s office will be no party to facilitating BISD’s wishes, leaving voters to only speculate as to what to expect on November’s ballot.
Current members of the BISD Board of Trustees were set to discuss what to do next at a public meeting scheduled for Thursday, Aug. 22. What the future holds has yet to be written, but plenty of evidence exists to indicate where the board has been on this long road to a trustee election.
Change a comin’
In 2010, a grassroots group of Beaumonters looking to reform the elected representation of BISD put boots on the ground and gathered thousands of petition signatures in an effort to compel BISD to put to a city-wide vote the manner in which BISD trustees would serve the population. The question was simple: Would the community rather elect BISD trustees using seven single-member districts (7/0) or five single-member districts with two at-large representative seats (5/2)? Voter feedback came quick. In the May 2011 election, a majority of the voters approved a 5/2 board.
Board feedback was significantly less fast-paced, and it would take more than an entire year before the BISD Board of Trustees would finally approve any 5/2 redistricting map as acceptable. Aug. 3, 2012, BISD submitted a 5/2 plan map, dubbed map 5f, for pre-clearance approval from the Department of Justice as per then-active Voting Rights Act regulations.
DOJ officials denied approval of 5f Dec. 21, 2012, “because it found such plan would likely reduce the ability of African-American citizens to elect candidates of their choice to the BISD Board of Trustees and would thus retrogress minority voting strength.”
After the holidays and amid public pressure to expedite the map discussion process in the interest of meeting state-mandated date deadlines, multiple meetings were held in which the trustees decided to scrap plans for drawing a new 5/2 map because members felt any 5/2 map would be deemed retrogressive by the DOJ. Feb. 6, 2013, the BISD Board of Trustees held a special public hearing to discuss a proposed redistricting plan with the public for the purpose of picking a new 7/0 plan map.
Feb. 21, the board adopted a new map, 7b, and called for an election May 11 based on the use of the same. The deadline to file as a trustee candidate in the election was set for March 1. With the coming of Friday, March 1, was also the coming of three unexpected new trustee candidates who, along with one incumbent trustee, had been advised by their attorney that state law required all the members of the Board of Trustees to file if they wanted to be considered for their respective seats. Three sitting board members did not file to keep their seats: District 1 Trustee Terry Williams, District 2 Trustee Zenobia Bush, and District 3 Trustee and Board President Woodrow Reece. In their stead were new candidates Donna Forgas for District 1, Marcelino Rodriguez for District 2, and Linda Gilmore for District 3, with District 5 Trustee Mike Neil applying to retain his elected post. District 4 Trustee Gwen Ambres also filed as an unopposed candidate due to her term expiring, as did Tom Neild for District 6. District 7 Trustee Janice Brassard’s bid for re-election was challenged by Joey Hilliard.
The following Monday, March 4, BISD informed the applicants for districts 1, 2, 3, and 5 that BISD had rejected their applications because they applied “for an office ... not scheduled to be on the ballot for a full term or for an unexpired term.”
The rebuffed candidates then sought the opinion of a higher authority – the Texas 9th Court of Appeals. March 7, the candidates filed a request with the 9th Court asking that an election be ordered for all trustee districts and that the applicants who had filed be placed on the ballot as the sole contestants for their requested districts or that they be certified as elected to those seats given that no other candidates filed for those offices.
While waiting for the court’s decision, BISD went on the offensive. March 8, the BISD Board of Trustees held a special meeting and voted to rescind the Feb. 21 board action adopting the 7b redistricting map and adopted an amended election order that reflected use of an old 2001 voting map for the May 2013 elections.
March 18, the 9th Court ruled that Gilmore, Forgas, Rodriguez and Neil be placed on the ballot as unopposed candidates for their respective seats, or be named the sole candidates for their seats in a canceled election. BISD attorneys pleaded with the court to reconsider, but March 27, the 9th Court rejected a stay of the order. BISD then set about getting a separate court to do what the 9th Court would not.
As part of the 9th Court’s ruling, BISD was to proceed with the May 11 election and get DOJ approval for the use of map 7b. And while BISD did submit the 7b map to the DOJ for approval, the school district did not follow through with seeking preclearance of the map. April 8, BISD received a request from the DOJ to submit more information on the district’s proposed 7b map. Two months later, BISD had still not fully complied with the DOJ request, and instead decided to scrap 7b altogether and support map 7i as the redistricting plan of choice.
In a letter dated April 9, BISD and DOJ jointly asked the District Court of the District of Columbia to grant a temporary restraining order (TRO) stopping the 9th Court-mandated election since the DOJ had yet to clear BISD’s 7b map. The TRO was granted and BISD was enjoined from calling for an election.
April 29, BISD canceled the May election. The following day, April 30, an action was brought in the 172nd District Court of Jefferson County challenging BISD’s cancellation of the May election and seeking to enjoin BISD’s new redistricting plan and proposed November election.
BISD was not going to hold an election as the 9th Court ordered. To further venture off the path designated by the 9th Court, BISD created map 7i, which included the area’s prison population and made concessions for talks that the BISD board president may want to move at some time in the future.
In an amended complaint to the still-open D.C. Court case on June 14, BISD sought preclearance under a new redistricting plan map, 7i, and a court order permitting a trustee election on the next available uniform election date under Texas law for Nov. 5, 2013. Although more information was requested on map 7i as had been requested of previous maps, this time a speedy response was delivered up to DOJ officials. Supplemental information for map 7i was received June 17. With the submission of all the support materials for map 7i, the DOJ then removed previously submitted maps from consideration without ever ruling on the merits of the maps.
June 20, BISD and the DOJ jointly filed an instant motion for entry of an order permitting a BISD election in November, only if the D.C. Court made the order official. According to the DOJ case filing to the D.C. Court, “The joint motion indicated that the BISD may not have independent authority under state law to adopt the November 2013 election but advised that this Court does have the authority to order an election schedule to facilitate the implementation of voting changes.” A June 25 Supreme Court ruling in Shelby County v Holder, which held that the coverage formula in Section 4(b) of the Voting Rights Act was unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5 of the Act, all but removed any DOJ intervention and opinion in BISD’s school board election.
On July 8, the four intervening candidates for the BISD Board of Trustees filed a motion in the Texas 9th Court of Appeals to enforce the prior state court writs of mandamus. According to Mike Getz, one of the plaintiff attorneys, the plaintiffs were asking the court to install the four candidates as the rightful BISD Board of Trustees representatives for their respective districts back-dating to the canceled May election date. The 9th Court ruled that, with the D.C. Court case still pending, no further decision could be made.
The BISD Board of Trustees met behind closed doors Monday, July 29, and emerged with a resolution to spend the next 72 hours constructing a new 5-2 redistricting plan to use in the next Board of Trustees election should BISD be ordered to follow voter-mandated changes to the way the board is elected.
The board had deliberated the new 5-2 voting plan unbeknownst to anyone relying on the board’s posted meeting agenda for accurate information as to what the closed-door conversations would entail. The most recently drawn 5-2 map was set for approval at a specially called meeting of the BISD board Thursday, Aug. 1. According to BISD filings with the 9th Court of Appeals, school trustees were adopting the latest version of a 5/2 redistricting plan to “attempt to address objections lodged by the DOJ” and “provide BISD a meaningful defense to federal claims of racial discrimination.”
Due to the lack of legal announcement of BISD trustee deliberations, a district judge ordered a temporary restraining order be granted against BISD so that the trustees could not enact any new 5/2 map. The map that was presented for approval by the trustees would have allowed for each of the minority members to retain their own individual districts, with the three remaining white board members to share one district. Another provision the Board of Trustees was seeking to institute was enacting cumulative voting, which would multiply voting ballots for residents. That provision was likewise stalemated by the local court.
Aug. 20, United States Circuit judges Brett M. Kavanaugh, Ellen Segal Huvelle and Rudolph Contreras issued a ruling from the D.C. Court on multiple requests from BISD and the DOJ to intervene in any upcoming school board election with a resounding “no” to all case filings.
“Several motions are now ready for the court’s decision,” the D.C. Court’s opinion read. For starters, “the court need not resolve the question of whether it would have the authority to order a November election as BISD and the United States request, since it DENIES their joint motion for equitable relief.”
According to the written opinion of the court, “Although the cancellation of the May (BISD) election was necessitated by the Voting Rights Act, its rescheduling is a matter of Texas election law, which appears to have sufficient resources to resolve the matter without this court’s involvement.”
In whole, “Because the Court now lacks jurisdiction to decide BISD’s only remaining claim, the court GRANTS the interveners’ motion to dismiss the case, and DENIES all other pending motions [Dkt. ## 15, 17, 18, 68] as moot.”
Attorney Mike Getz said he believes more court proceedings will be needed to legally call for a BISD trustee election.
“The regular deadlines aren’t going to apply,” he said. “The timelines from the secretary of state are already blown; there’s no ability for the school district to legally call for the election.”
Jefferson County District Attorney Tom Rugg agrees with Getz’s assessment, as noted in a letter sent from the county DA just prior to the D.C. Court’s ruling to the county clerk responsible for local elections.
“You may not legally execute this agreement and bind the county to its terms as it contravenes Texas law,” Rugg wrote to county clerk Carolyn Guidry pertaining to an agreement to perform a November election for BISD. “The Texas Supreme Court previously has held that a contract to fulfill an obligation which cannot be performed without violating the law contravenes public policy and is void.
“We recognize the difficulty faced by the school district in the circumstances of its election cycle but the county is not at liberty to ignore clear, well settled legal principles by entering into a contract in violation of that expressed public policy. However, if a court of competent jurisdiction, in the exercise of its legitimate equitable powers were to order an election and by its order suspend the operation of these statutes on equitable grounds then the county could, by contract, participate with the school district. Unless that event occurs, the county may not hold a joint election with the school district at the Nov. 5, 2013 election date.”
Jefferson County Clerk Chief Deputy Theresa Goodness, who oversees county elections, said as of now BISD’s trustee election will not be on the county’s November ballot.
“What it means is that (Jefferson County) will not conduct an election without a court order,” Goodness said. “Probably at least a district court would have to order it, but definitely some court would need to order it for a BISD election to take place with the Jefferson County election in November.”
According to Goodness, a court will need to decide to order an election soon, too, if the county is going to be a part of the proceedings.
“There is an Aug. 30 deadline for BISD to get on board,” Goodness said. “If they don’t entertain a court order by then they will not be on the ballot.”
Goodness said that BISD could rent the voting equipment from two or three companies that offer the service.
“There’s only a couple companies in Texas certified to operate the equipment,” Goodness said. “It’s up to the political subdivision to make sure they follow the laws; the companies are just a vendor.”
Wednesday, Aug. 21, BISD requested that Judge Donald Floyd approve a BISD-instated November school board election using map 7i.