Unfair advantage

chad dunn

In the latest twist to the ongoing Beaumont Independent School District redistricting saga, the governing Board of Trustees has voted to submit a new map for approved use in the next school board election that pads the population numbers of two districts with thousands of inmates from correctional facilities in the area although the felons housed therein cannot vote. 

Prior BISD districting had excluded the inmates from the voting population, but on the advice of hired hands from the Brazil & Dunn law firm, the board has chosen to include the number for its latest map. The end result is that one district has roughly half the voters of other districts, creating a situation where that district’s vote is weighted higher than the rest of the community.

BISD Trustee Tom Neild said he wasn’t aware that the board intended to submit the newest map (Map 7 I) to the Department of Justice or any higher court for approved use in the next school board election. All statements from legal counsel in public meetings prior to the BISD Board of Trustees meeting May 16 had called for the creation of a back-up map for the already- submitted Map 7 B, he said, which was submitted to the DOJ for pre-clearance approval by March of this year.

Neild said he did not approve of Map 7 I even being considered a back-up plan, much less the map of choice, and pointed out that the practice of including prisoners for the purpose of redistricting defied the “one man-one vote” premise, which ensures that all votes are counted equally.

“I’m still struggling with the state and federal prison population — all of which are in District 3 (board president Woodrow Reece) and 4 (Gwen Ambers) boundaries,” Neild said. “It’s obvious that some districts have an advantage over the others.”

Is that fair, Neild asked of attorney Chad Dunn.

“It’s not my judgment to say what’s fair,” Dunn quipped. “My job is to advise the board to comply with the law, and the current state of the law you have to count every living soul in the district whether they’re eligible to vote or not.”

According to Dunn, defiance of “one man-one vote” provisions doesn’t fall under the purview of the DOJ, so whether or not BISD is in violation of that standard is a moot issue.

“One person-one vote is not reviewed by the Department of Justice. Congress would be quite disturbed to learn that the DOJ was concerned with anything other than retrogression,” he said.

Potential lawsuits resulting from perceived “one man-one vote” violations were of concern to Trustee Neild, but Dunn scoffed at that notion as well.

“Obviously, anyone can file a lawsuit if they have $150,” Dunn said. “The Supreme Court has ruled that they (prisoners) be counted in the population numbers. ... That’s why we have to continue to accommodate them.”

However, it is noted that in all DOJ correspondence to BISD regarding Map 7 B, no mention is made of including its prison population when drawing district lines.

One man-one vote

A quick view of the legal dictionary cites “one man-one vote” as “the principle that all citizens, regardless of where they reside in a state, are entitled to equal legislative representation.

“This principle was enunciated by the Supreme Court in Reynolds v. Sims (1964). The Court ruled that a state’s Apportionment plan for seats in both houses of a bicameral state legislature must allocate seats on a population basis so that the voting power of each voter be as equal as possible to that of any other voter.”

By definition and by act, BISD’s use of the local prison population dilutes the local vote, according to Executive Director Peter Wagner of Prison Policy Initiatives.

“Anyone who does not live immediately next to those prisons will have their vote diluted,” Wagner asserted. “Usually, prison-based gerrymandering is considered bad.”

Wagner, whose organization has worked in the reform of prison population accounting in California, New York, Maryland, Delaware, and 200 counties around the country, said there are very few reasons for including the prison population in redistricting.

“Reasons to do it may be not knowing any better, or to control the outcome of the election. A good reason — I can’t come up with one,” Wagner said.

According to attorney Dunn, the reasoning BISD used for the inclusion of the prison population was an unnamed Supreme Court decision that mandated such. Wagner denies the existence of any such Supreme Court ruling.

Dunn also stated in correspondence to the U.S District of Columbia court that all other school districts in Texas utilize the method of including prison populations – a claim also refuted by Wagner, who gave Fort Stockton ISD’s disuse of its prison population to determine district boundaries as one example. Liberty County’s school district is named as another example.

According to Wagner, any number of prisoners included in a district’s voting age total is a violation of the “one man-one vote” principal. When 8 percent or more of a district’s voting population is made up of an incarcerated population, some investigation needs to be done, he said. In BISD’s newly proposed District 3, the prison population accounts for nearly 50 percent of the voting-age populous. Figures provided by Dunn confirm that in District 3, of the 14,484 of-age voters in that area, 7,123 are incarcerated. In District 4, 4,777 inmates are included in the total 16,024 voting-age residents of that area. Other districts represent up to 15,000 voting-aged residents who are not incarcerated and therefore not precluded from voting by law.

Map double-cross

Trustee Neild has requested information from BISD attorney Melody Chappell as to how Map 7 I was introduced as the map of choice in the first place. Attorney Dunn initially reported the genesis of Map 7 I coming from a request by District 3 representative and Board President Woodrow Reece, who was considering moving his primary residence, a move that would have changed his district of residence. That claim has since been retracted by school district attorney Chappell, who stated that the adjustment to Reece’s district was just correcting an oversight in splitting a precinct that has traditionally been considered District 3 – “Precinct 67 has always been in Mr. Reece’s district. It was in the (Map 7) B plan and in the benchmark plan,” she said.

Whatever the case, Neild opposes submitting a new map instead of the map already approved by unanimous vote of the board.

“In April, we voted not to rescind Map 7 B,” he said. “It was always an alternate we were looking at – only if the DOJ rejected Map 7 B.

“Nowhere did we discuss, ‘Yeah, let’s go ahead and say contact the DOJ.’ There’s no clear-cut vote where we clearly tell (Chappell) to move forward and send the DOJ a notice that we want to pull Map 7 B off the table.”

At the May 16 meeting of the BISD Board of Trustees, an action item was approved with a 5-2 vote of the seven trustees to “take action to adopt an alternate 7 single-member district map for submission to the Department of Justice.”

Neild is adamant that there was no meeting of the minds when it came to agreement on referring Map 7 I to the Department of Justice in place of Map 7 B, however.

“I reviewed the last two meetings, and if I’m wrong, show me,” he said. “All I’m asking is show me because all the discussions I remember, it was an alternate map that we were looking into. A few months ago, we were all unanimous about (Map) 7 B, and now we’re just yanking it from the DOJ?

“I’m positive we didn’t do it.”

Still, in documents submitted to the Washington court May 23, attorneys filed on behalf of BISD asking the court to “convene a three-judge court; enter declaratory judgment that the redistricting Map 7 I fully complies with Section 5; alternatively, if a declaratory judgment is not granted with respect to Map 7 I, then enter a declaratory judgment with respect to Map 7 B; enter a declaratory judgment granting Section 5 preclearance to the election schedule set forth; enter a declaratory judgment granting Section 5 preclearance to BISD’s practice of counting prison population in determining population deviation between (sic); order that BISD must continue to maintain the practice of staggered term elections after redistricting unless preclearance for such change is secured; and grant (BISD) such other and further relief as may be proper.”

Neild, who said he has been in touch with the Department of Justice, added that just one day prior to Dunn’s court submission, he had been informed by a DOJ representative that the agency was not going to consider looking at Map 7 I unless Map 7 B was deemed unacceptable.

Still, with the advice of attorney Dunn, demographer George Korbel elected to redraw districts to include the prison population, with Dunn submitting the new map for approval as the school district’s map of choice.

“By this action, BISD seeks preclearance of its redistricting Map 7 I,” the filing states. “If preclearance is denied to newly adopted Map 7 I, then BISD seeks preclearance of Map 7 B.

“Map 7 I addressed, inter alia, the concern that had been expressed by the Defendant Attorney General with respect to Map 7 B that the reduction in African-American population in proposed District 2 under Map 7 B appeared to be retrogressive of minority voting strength. Also, in drawing Map 7 I, BISD included in the total population figures, and therefore the district population deviation calculations, the prison and jail population throughout the district. Evidently, prior redistricting maps for BISD had excluded the jail (population).”

Intervening counsel involved in the BISD redistricting litigation currently underway in Washington is currently working on a response to the Map 7 I submission by BISD to the DOJ.

In the meantime, Trustee Neild said he will anxiously await clarification from the school district’s counsel.

“Everything they’re doing is positioning us to be in another lawsuit,” Neild said. “We can’t even get a straight answer as to why they’re doing this, and on whose authority; that’s what really sends me over the edge.”


Jennifer Johnson can be reached at (409) 832-1400, ext. 231, or by e-mail at jennifer [at] theexaminer [dot] com.