Mays further held in abeyance the question of the constitutionality of two other pieces of enabling legislation — Chapter 970, also from the 2012 session, and Section 3 of Chapter 1 of 2011 (a.k.a. Norris-Todd), which first authorized the lifting of a long-standing state ban on new special school districts.That original legislation — by state Senator Mark Norris and state Representative Curry Todd — was conceived in response to the then pending surrender of the Memphis City Schools charter, already voted by the MCS board and later ratified by the Memphis City Council.
It was the fact of charter surrender that made merger of MCS and Shelby County Schools inevitable and forced the hand of those in the suburbs who desired to keep their schools independent of the Memphis system.
Chapter 905 was an add-on bill offered by Norris and Todd last spring as a means of circumventing a ruling by state Attorney General Robert Cooper which prevented any preliminary activity toward creating new districts until August 2013, the date specified by Norris-Todd.
In striking down 905, Mays found credible and compelling a mass of testimony and evidence -- including videos of sponsors' statements from the legislative session -- that plaintiffs had offered during a September trial as proof that the 2012 legislation was intended by its sponsors to apply only to Shelby County.
As the judge summarized things in his ruling, "The Municipalities cite portions of the legislative history in which references are made to 'counties' or in which the possible application to a few other counties is mentioned. ...
"There is in the history a sense of a wink and a nod, a candid discussion of the bill‟s purpose occasionally blurred by a third-party correction. The history is clear, however, that the bill never would have passed had it not been intended to apply only to Shelby County."
That fact rendered Chapter 905 a private bill disguised as a general bill, Mays said in declaring it null and void. Bills applying only to a single county must be ratified by the chief legislative authority of that county. That would be the Shelby County Commission, the major plaintiffs in this case, who were not consulted on the measure's passage.
Said Mays: "Although general in form, Public Chapter 905 is local in effect. Because it does not include a provision for local approval, Chapter 905 is VOID under Article 11, Section 9 of the Tennessee Constitution. All actions taken under the authority of Chapter 905 are VOID. The Municipalities are enjoined from proceeding under Chapter 905 to establish municipal school districts.
"The Third-Party Plaintiffs are invited to submit additional arguments, both factual and legal, addressing only the constitutionality of Chapters 970 and Section 3 of Chapter 1 under Article 11, Sections 8 and 9 of the Tennessee Constitution. Those arguments should be submitted not later than December 11, 2012, and should not include further references to legislative history. The Third-Party Defendants may respond no later than December 27, 2012."
Judge Mays entered his ruling on the eve of his departure for a brief vacation. He had held off releasing it until court-ordered mediation sssions between the parties last week ended with no agreemnt in sight.
The ruling would appear to be a clear victory for the plaintiffs in the case — the Shelby County Commission, the Memphis City Council, and the City of Memphis — and an equally smashing defeat for the five suburbs — Grermantown, Collierville,Bartlett, Lakeland, Arlington, and Millington — whose voters had authorized the special disricts in the August 2 election and elected school boards on November 6.
Shelby County Commission chairman Mike Ritz, when contacted some 15 minutes after the ruling became public at 7:50, declared, "It looks like we got what we asked for."
Ritz would elaborate on that after completing his reading of the court document. "This means that everything the suburbs have done thus far is canceled out, and I don't believe they will ever convince Republican legislators elsewhere in the state to legislate an alternative applying to the whole of Tennessee."
A Commission colleague, Steve Mulroy, who had predicted the form of the outcome earlier on Tuesday, said simply, "We won."
Indications were that the suburbs would simultaneously appeal the Mays ruling and make a preliminary start on a possible network of charter schools.
Such schools would have to be approved by local school authority -- in this case the Unified School System board -- but the suburbs could expect more help from Norris and, for that matter, from the charter-friendly administration of Governor Bill Haslam, which has already compelled boards in both Shelby County and Davidson County (Nashville) to reverse decisions against charter school applicants.
Whatever further action the suburbs take, the ruling seems to have made it clear that the August 2013 school year will begin with the Unified School District serving as the public school jurisdiction for all of Shelby County.
Bartlett Mayor Keith McDonald, a consistent spokesperson for the municipal-school movement, said upon learning of the Mays ruling, "We're wounded, but we're not dead." McDonald conceded that the ruling made municipal systems imposible for the 2013-14 school year but held out hope that Norris-Todd might still be found viable, permitting the suburbs to make a new start on Municipal districts after August 2013.
"There are all kinds of creative new ideas for public education, in both the state and the nation," McDonald said, apropos the idea of seeking alternatives to the concept of municipal school districts. "As I've said for two years, we're in this for as long as it takes.
David Pickler, the former chairman of the Shelby County Schools board, a current member of the Unified School Board representing Germantown and Collierville, and a proponent of municipal schools, said of the Mays ruling, "This is certainly a delay but not necessarily a defeat. It's even an opportunity for all parties to the issue to engage with each other in a board room, not a courtroom, possibly to create a new vision that respects everybody's rights and the principle of self-determination."
More to come as things develop
After a last, largely pro forma, session on Friday, the contending parties (some of whom had already decamped for Thanksgiving travel), gave up, and Mays is expected to rule this week on the constitutionality of last spring’s legislation speeding up the timetable for the suburban districts, as well as on the final clause of 2011’s Norris-Todd law, which lifted a long-standing ban on new special school districts.
The immediate issue, subject of a trial in Mays’ court that concluded in September, is whether the several pieces of enabling legislation were improperly applied to Shelby County only, thereby circumventing state constitutional requirements for ratification of such legislation by local legislative bodies.
On one side of the issue are the plaintiffs: the Shelby County Commission, the Memphis City Council, and the City of Memphis; on the other are six suburban municipalities — Germantown, Collierville, Bartlett, Arlington, Lakeland, and Millington — as well as the state itself.
If Mays should rule against the suburbs, they will be constrained to remain within the larger Unified School District created by the forthcoming merger of Memphis City Schools and Shelby County Schools in August 2013. The mayors and other spokespersons for those communities have left no doubt, however, that they will immediately consider other options leading to de facto school independence, perhaps by the charter-school route.
In that scenario, however, proponents of the Unified system remain hopeful that the suburbs will avail themselves of a trial period of at least one year or perhaps more before making another effort to break away on their own.
In any case, even should Mays permit the municipal school process to go forward on the state-constitutionality issue, one additional obstacle remains — the plaintiffs’ charge that such a process would further re-segregation of the races, thereby violating the federal constitution. Mays has tentatively scheduled trial on that matter for the first week of the new year.
Last week’s Flyer editorial offered further analysis of the various prospects.
This week's Flyer editorial takes stock of his wisdom.
Literally, the person who sits at our reception desk on the second floor at 460 Tennessee St. (which is, appropriately enough, the “entry level” for all visitors) has more than a reasonable expectation of doing well in the world. Many of the decision-making jobs at CMI are held by people who sat at the receptionist’s desk. Many? Let’s say most, or even all, when you consider that everybody in the building -- regardless of longevity, title, or function -- does a regular turn at the desk, at least for an hour at a time, on a rotating basis.
Talk about putting one’s best face to the world! We have had more than one well-known music diva sitting there, actors of distinction, entrepreneurs,movers and shakers of all kinds. And now, as of the political season just concluded, we can proudly count among these high achievers a bona fide rising politician -- Reilly Neill, whose hard and astute campaigning made her an upset victor last week, when she won a state representative’s position in Montana.
Rep.-elect Neill, a Democrat, turned out a Republican incumbent with a reform campaign, which -- well, a post-election press report says it succinctly: “During her campaign, Neill said she supports responsible natural resource development, public employee unions and health insurance reform. She also said she supports a government-funded jobs proposal that died in the 2011 Legislature. She emphasized the budget responsibilities of the Legislature over social issues, and said the 2013 session will need to make some important decisions regarding the more than $400 million surplus in state coffers.”
That, we submit, has the ring of the real deal.
Reilly Neill -- a 1991 graduate of Memphis Central High School, whose father, Kenneth Neill, is the founder and publisher of the Flyer -- is one of our own in many ways, including the fact that she’s a practicing journalist herself as the publisher of the Livingston Current, an arts, entertainment and news periodical. We congratulate Rep. Neill and also her constituents for choosing well. We already knew what she could do!
Speaking to reporters at his Union Avenue campaign headquarters, the congressman was following up on comments made by Turner concerning anecdotal reports that people on a list of “inactive” but eligible voters prepared by the Shelby County Election Commission may have been told by poll workers that they were not allowed to vote. The SCEC had previously released a voter list divided into “active” or “inactive” categories, the latter consisting of voters who may not have voted recently but whose credentials to do so were still in order.
Turner had also expressed concern that, as was the case during the August round of voting, voters appeared to have been given ballots inappropriate to their precinct locations.
Cohen said there was “no good reason” in a computerized age to even have an “inactive” list. “People should remain, once they’ve registered, on the active list,” he said.
Cohen said, “This all started with Photo-IDs. Now we come to election day and the inability of the bureaucracy to properly work. I think it’s intentional.” The congressman said the public should be actively involved in monitoring the membership of the Election Commission.
Former Democratic chairman David Cocke also took part in the press conference and made a point of noting that Photo IDs were still available on election day at the city ‘s library system. These cards were originally disqualified by state election officials as not satisfying the requirements of the 2011 Photo-ID law, but the Tennessee Supreme Court, just last week, ordered the cards to be honored for this election.
The same ordinance had received a provisional pass last Wednesday in the Commission’s general government committee, which sent the ordinance to the floor of Monday’s public meeting with a favorable recomendation, but the vote of the full commission is the one that counts, and after an extended and often impassioned discussion Monday, the ordinance would fall just short.
The final vote was 6 for, 3 against, and 4 abstaining. The key abstention was that of Steve Basar, a District 1 Republican who, as the winner of a special election, is the Commission’s newest member and who chairs the body’s economic development commission.
At the close of the vote, Commission chairman Mike Ritz assigned the ordinance to Basar’s committee, removing it from the jurisdiction of the general government committee. He did so after pointing out to his fellow commissioners that, despite having failed to get the necessary 7 votes (out of 13) on the first reading, the proposal, sponsored by Commissioner Steve Mulroy, a District 5 Democrat, was still due three full readings, with only the third and final one requiring passage.
Up to this point, the Commission’s practice has been to expend full debate on each reading round, but Ritz indicated he would prefer following the City Council model, whereby extended debate normally occurs only — or primarily — on the final round.
Objection to the ordinance had been along several lines, but the pivotal one had been a concern that the ordinance should have the approval of legitimate businesses that do not practice any version of wage theft — which, as defined by the ordinance and by several witnesses testifying for it, included withholding of wages properly owed an employee or mutually agreed to, failure to pay overtime, and asking employees to work “off the clock.”
Basar indicated that the attitude of the business community at large was an unknown factor and undertook to inquire of the Chamber of Commerce and mainstream business concerns about their opinions of the ordinance or possible suggestions for amending it.
Dated October 25 and received in some households as late as this past weekend, it’s a letter from Gene Bryan, who identifies himself as “your neighbor and President of the Cordova Leadership Council.” The Council is the organization that for several years has functioned as a civic club and lobbying group on behalf of the sprawling East Memphis/suburban community of Cordova.
Early on, the letter tells recipients, “If we support a congressional candidate that supports Cordova, we can protect our community.” It continues, in caps, ‘THIS IS WHY I AM ASKING YOU TO VOTE FOR GEORGE FLINN FOR CONGRESS.”
Bryan says further, “When Dr. Flinn represented us on the Shelby County Commission he stood with us. He voted to protect Germantown Parkway and not let it turn into another Winchester Road, where all the businesses packed up and left.He also voted for the County-wide Adult Entertainment Ordinance, protecting us against Steve Cooper.” (Strip-club owner Cooper is the owner of Stella Marris, and on again/off again Cordova dining and dancing establishment whose zoning approval was hotly resisted by the Cordova Leadership Council and whose status is still being monitored by Council members.)
In bold letters, Bryan says, “We, members of the Cordova Community, now need to stand with Dr. Flinn.”
The letter is critical of Cohen, saying, “Congressman Cohen, when told he would be representing Cordova talked about how far out Cordova was and that he would not be representing a lot of ‘Tea Party people.’ Has he been out to our community, is he even in touch with Cordova is he thinks we are all just ‘Tea Partiers?’…”
Asked how Cohen had responded to appeals from the Cordova Leadership Council, Bryan acknowledged, “We haven’t really reached out to him that much.” And he further said that he was speaking as an individual in the letter not as a representative of the Council.
Bryan said that Cordova Leadership Council itself does not endorse candidates., insisting that he spoke for himself and that his reminder in the letter of his Council affiliation did not differ in kind from a similar statement of affiliation by Roby Williams, president of the Black Business Association in his public endorser of Cohen.
In suggesting a conflict of interest on Bryan’s part, Cohen noted that Bryan is listed on his Facebook page as “Director of Research and Planning at Caissa Public Strategies. That is the public relations firm that is assisting Flinn in his campaign, and Bryan confirmed that he is an employee of the firm, which is run by Bryan Stephens, his colleague for many years in the Cordova Leadership Council.
Said Cohen in a statement: “I am shocked that Gene Bryan, President of the Cordova Leadership Council would write to Cordova residents urging support for George Flinn and not let them know that the company he works for, Caissa Public Strategy, is making hundreds of thousands from Flinn.
“George Flinn has tried to buy this election with over $2 million of his own money. The 9th District is not for sale.
“Gene Bryan, who works for a public relations firm, should know it is a violation of public trust to not disclose that the company he works for is getting hundreds of thousands from Flinn.
“Cordova is not for sale either.”
Cohen said he expected to get a fair share of the votes in Cordova, the sprawling area, generally regarded as politically conservative, which occupies much of east Memphis and extends into unincorporated Shelby County.
The area, formerly a part of the 8th Congressional District, became part of the 9th after GOP-controlled reapportionment following the 2010 Census.
In August Lucy voters were erroneously given ballots that allowed them to vote on Millington’s sales-tax referendum to fund a municipal school system. The referendum issue was narrowly defeated on votes from the Lucy precincts. Chancellor Arnold Goldin subsequently disqualified the Lucy votes as being ineligible, allowing for a change in results that empowered Millington, along with five other suburban municipalities, to conduct school board elections in the current election round.
But in general, the situation has improved considerably over what it was for the August 2 primary and county general election, according to Joe Weinberg, the amateur sleuth who, in an effort paralleled by fellow activist Steve Ross, found more than 3000 wrong ballots — an error rate later authenticated by state election officials — in the county’s August round of voting.
Weinberg ran a check on the first week of early voting for the November election in Shelby County, finding some 20 possible discrepancies, distributed fairly evenly countywide, and extrapolated that into the number 100 for the likely total occurring in early voting overall — a relatively negligible number.
Given that 232,691 is the total number of early voters reported by Rich Holden, the overall percentage rate of error here is only .0004297544812, which would seem to most people a reasonably minute and inconsequential divergence.
But it’s still seen as a problem by Shelby County Conmissioner Steve Mulroy, a Democrat and law professor at the University of Memphis who had made electoral reform one of his major causes even before he first sought political office in 2006. Mulroy pointed that a mere handful of altered votes in the Milington/Lucy case occasioned a significant difference in the August 2 results and accounted for a transformation of the final results.
And, though Mulroy did not cite the case, the fact is that what is probably the most pivotal election in Memphis political history— the upset win in 1991 of mayoral contender Willie Herenton over incumbent Dick Hackett to become the city’s first elected black mayor — was resolved by a similarly tiny differential.
Out of 247,919 votes cast in that election, Herenton would prevail by the razor-thin margin of 142 — a percentage rate of .0005727677184.
Mulroy also expressed concern about a situation stemming from a power outage at the Greater Middle Baptist Church polling site Tuesday night. As Jake Brown, a local adjunct member of the Shelby County Democratic Party, explained it, there were reports that some voters had been forced to vote manually during the outage and that their votes had been entered into the electronic voting machines later by poll workers when power was restored.
Administrator Holden said that was not the case, that, while there had been power outages at two or three early votng sites, the voting machines themselves were battery-operated and also protected by stand-alone generators and never ceased to function.
“The only process that needed to be switched from electronic to manual was the ballot application form, not the vote itself,” said Holden, who acknowledged that the ballot applications, the processing of which is separate from the voting machines and dependent on a standard power line, were in fact re-entered electronically when power was restored.
Holden estimates that another 140,000 Shelby Countians may vote on Tuesday, November 6, formally election day but in fact merely the official end of the November round of voting. The proportionally smaller expected turnout on Tuesday continues a trend in recent years whereby early voting has begun to assume a numerically greater importance than election day itself.
More and more, the contest between 9th District Democratic congressman Steve Cohen and his Republican opponent, George Flinn, has come to resemble one of those aerial dogfights in movies about World War I.
The two never quite engage directly but upon occasion encounter each other out in public, whereupon they roll and circle each other a bit, exchange bursts of invective, and then part, each returning to home base or to another political mission.
So it was on Thursday at Anointed Temple of Praise (“ATOP” in the shorthand lingo of both campaigns) on Riverdale Rd. —, one of the several early-voting sites that had been attracting droves of voters for the last two weeks until early voting formally ended at 7 p.m. Thursday.
Flinn had apparently already devoted several days of campaigning at the site, and the Cohen people maintain that they had heard stories of his violating state law by direct contact with voters within the 100-foot distance from the site prohibited by law.
So the congressman, along with members of his campaign staff, showed up at ATOP to see for themselves, meanwhile doing some campaigning of their own.
One Cohen supporter had either a cell phone or a digital camera handy and took some shots of Flinn in action. Both pics — one of Flinn alone, another of the GOP candidate in conversation with another individual ——apparently show Flinn within the 100-foot limit.
The Flinn camp does not dispute the issue of location. Kristi Stanley, a spokesperson for Flinn, acknowledged that the candidate may have been inside the line on two occasions Thursday — once to use the bathroom inside the church (“which is permitted,” Stanley said) and another time in an attempt to get in line and cast an early vote. On neither occasion did Flinn have any campaign buttons, stickers, or other paraphernalia on him, Stanley said, and the pictures do not seem to show any.
Stanley said a uniformed security guard accosted Flinn during his effort to get in line and vote (in what might be the situation in Pic #2, below) and ordered him to get back across the 100-foot line, whereupon the candidate attempted to protest that he was there only to cast his ballot but eventually gave up the effort when the security guard appeared not to believe him.
Cohen’s account, one which he said he passed on to George Monger, a Shelby County Election Commissioner, is different. The congressman said he had heard from several sources that Flinn had been violating the distance barrier at ATOP and other voting sites, including the Agricenter, “for four days.”
He said he and Flinn encountered each other briefly at ATOP on Thursday, though apparently not within the 100-foot perimeter.
The congressman said Flinn, in greeting him, called him “buddy,” to which Cohen said he responded, “I’m not your buddy,” reminding Flinn of his recent TV ad which accused Cohen of absenteeism from Congress and “playing,” when, the congressman said, he was actually attending to his mother on her deathbed. “I told him to ask God for forgiveness,” Cohen said, whereupon “he just stood there, doing his gargoyle impression.”
Cohen said Flinn’s incursions within the 100-foot perimeter at voting sites were just some of his violations of campaign law. As another example, he said his opponent, a physician/radio magnate, had been appearing routinely on a cable station he owns without offering equal time to Cohen. “We eventually made him do that,” the congressman said.
Stanley said that Cohen was wildly exaggerating the situation and that he and his supporters were “going crazy” at the ATOP site Thursday. She attributed that to the congressman’s “getting nervous” about the way the election might go.
UPDATE: Reached on Friday morning, the day after the incident at Anointed Temple of Praise, Flinn said the account given by spokesperson Stanley was accurate, including what she had said were his reasons for crossing the 100-foot line -- a call of nature and a desire to vote.
Regarding the latter, Flinn said that when he was accused of "playing the system" by the security guard, he decided to avoid a public wrangle with the guard and to wait to cast his vote on election day.
He elaborated somewhat on his encounter with Cohen: "Really, he wasn't making any sense. He was incoherent."
Concerning Cohen's comment that he should ask God's forgiveness, Flinn said he replied, "For what? Telling the truth? You know it's all true."
As previously indicated, the state Supreme Court has cleared the way for Photo-IDs issued by the Memphis library system to serve as credentials for the November 6 election in satisfaction of the 2011 Voter-ID law.
In an order issued on Thursday, the Court agreed to hear an appeal from state government of a previous ruling by the state Appeals Court in favor of the cards’ viability. But no action will be taken on that appeal until after the election, and the Court directed the appellant parties, Secretary of State Tre Hargett and state Election Coordinator Mark Goins, to issue their own order that the library IDs be accepted for this election.