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VOL. 129 | NO. 3 | Monday, January 6, 2014

Consolidation Voting Case Still Complex in 3rd Year

By Bill Dries

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Three years after all the votes were counted in dual votes on an attempt to consolidate city and county governments, the federal lawsuit over the dual-vote requirement in state law continues.

And a look at the depositions and other written statements in the case file from the experts for each side shows the issues in the federal court case remain complex.

Just before Christmas, U.S. Magistrate Judge Tu Pham of the U.S. District Court for the Western District of Tennessee denied motions by each side to disqualify the other side’s experts.


Pham is the referral judge hearing pretrial motions in the case assigned to U.S. District Judge Thomas Anderson. Either or both sides could appeal Pham’s latest ruling to Anderson.

Eight Shelby County citizens filed the lawsuit against the state of Tennessee and the Shelby County Election Commission in October 2010, a month before voters within Memphis approved the consolidation charter by a narrow margin and voters in the county outside Memphis defeated the proposal by a wide margin. For the consolidation to happen, it had to win both referendums.

The plaintiffs sought to have the votes cast that November counted together and not separately. The vote count was delayed, but eventually the votes were counted as two elections as the larger challenge of the state law requiring the dual electoral majorities moved ahead. The state lost its point that there was no reason for the lawsuit to continue with the election decided.

Meanwhile, five of Shelby County’s six suburbs intervened as defendants in the lawsuit.

The experts for both sides have clashed on whether racial bloc voting is inevitable in local elections and whether that would require some kind of court remedy.

Part of Rhodes College political science professor Marcus Pohlmann’s deposition centered on whether the standard is that white voters have voted as a bloc or that they could.

Pohlmann, according to Pham’s ruling, testified that he believed “you don’t have to demonstrate that white voters actually did bloc vote, but that their voting coherence would allow them to bloc, and so that’s my understanding.”

The state and the suburban leaders who are the defendants and intervening defendants in the case strongly disagree with Pohlmann’s conclusion.

Pohlmann said he did not analyze the 2008 Democratic congressional primary – in which incumbent Steve Cohen was seeking re-election for the first time – because of Cohen’s primary challenger, Nikki Tinker.

A federal court lawsuit over how referendums on government consolidations are handled under Tennessee law has stretched on for more than three years. Filings from experts on both sides show the complexities of the concepts underlying the case.

(Daily News File/Andrew J. Breig)

“Nikki Tinker was not a serious opponent,” Pohlmann said. “Not a viable opponent. She may have thought she was, but she wasn’t.”

Pohlmann did analyze, however, the results of the 2006 Democratic congressional primary in which Cohen claimed the 9th Congressional District seat for the first time from a field of 14 contenders.

Pohlmann did not analyze the 2010 referendum vote on consolidation of the Shelby County and city of Memphis governments.

“I thought there were several issues that arose in and around that campaign that made it confusing racially,” Pohlmann testified in a deposition taken May 6, specifically citing the opposition to the consolidation by then-Shelby County Commissioner Joe Ford and national civil rights leader Al Sharpton, both black political leaders.

Pohlmann said Ford and Sharpton “tried to turn that referendum into a civil rights issue, suggesting that for blacks to vote for consolidation was to give up hard-won civil rights victories of the past.”

“I think that combined with the decision to take the school element out of it also had an effect because I think consolidation with schools included is a very different decision than consolidation without schools included,” Pohlmann added.

But Todd Donovan, a professor of political science at Western Washington University in Bellingham, Wash., submitted a report on behalf of the defendants that concludes: “Two factors that facilitate political cohesiveness for a minority group when voting for a minority candidate – a preference for descriptive representation and shared partisanship with a candidate – are absent in referendum elections.”

He has testified as an expert witness in election law cases elsewhere in Tennessee as well as in Alaska, Montana and Washington state.

Donovan also wrote that black voters supporting President Barack Obama and 2006 Democratic U.S. Senate nominee Harold Ford Jr. at higher rates than white voters “does not mean that African-American voters and white voters have polarized interests when it comes to referendum choices on government administration, taxation, service provision and other policy questions.”

“In the absence of distinct political interests that create polarized blocs of referendum voters defined by race, there is no cohesive racial minority voting interest that can be diluted by a referendum,” Donovan added.

In a June expert witness declaration, Pohlmann said racial bloc voting in Memphis is highest in city mayoral elections, but that voting locally is racially polarized in general.

He specifically analyzed elections results in homogenous Shelby County precincts for the court case and “determined that considerable racially polarized voting in this area still exists despite the election of African-Americans to public office.”

“Racial bias is still present as the use of overt and subtle racial appeals has long been a part of the political landscape in Shelby County,” Pohlmann concluded.

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