Tuesday, September 22, 2009

Giving Partisan Legal Advice To The Council; Council Republicans Ignore Law That Prohibits Redistricting Within a Year of Municipal Election

The job of attorney for the Indianapolis City-County Council should be giving objective legal advice to council members. When fair legal interpretations get tossed aside in favor of partisan politics, counsel attorneys do a disservice to their clients. Unfortunately that has happened with the last two attorneys for the council, Democrat Aaron Haith and Republican Bob Elrod.

Last night was Elrod's turn.

Councilor Joanne Sanders introduced a measure to transfer $290,000 budgeted for 2010 for redistricting to the parks department's budget. (A similar amount is appropriated for 2011.) She argued that the statute did not allow redistricting before the 2011 election. Republican Councilor Ryan Vaughn asked for legal advice from the Council's attorney, Bob Elrod.

Elrod remarked that the council could redistrict "any time they wanted, except right before an election." He then went on to say that the council could redistrict before the 2011 election even though the census data won't be out until early 2011.

Either Elrod never read the redistricting statute, or more likely, he chose to ignore it.

Here is what the redistricting statute says:

IC 3-11-1.5-32

The legislative body of a municipality may not change the boundary of a district established under:
(1) IC 36-3-4-3; (This is the Indianapolis City-County Council)
(2) IC 36-4-6-3;
(3) IC 36-4-6-4;
(4) IC 36-4-6-5;
(5) IC 36-5-1-10.1;
(6) IC 36-5-2-4.1; or
(7) IC 36-5-2-4.2;

after November 8 of the year preceding the year in which a municipal election is to be held and before the day following the date on which the municipal election is held except to assign territory to a municipal legislative body district in an annexation ordinance.
Translation: There is nearly a year window between November 8, 2010 and November 3, 2011 (the day after the election) when the Council is forbidden from redistricting. It is not just "right before an election," as Elrod claims.

A lay person off the street with a high school education could interpret that section without a problem. Yet Barnes & Thornburg's attorney Ryan Vaughn apparently cannot. Where too are the other attorneys on the council, Bob Lutz and Barb Malone? Why aren't they pointing out the obvious - that the council cannot legally redistrict for the 2011 election. It's a shame that it takes Sanders, who as far as I know doesn't have legal training, to correctly interpret the statute.

In the end, this $580,000 of taxpayer money set aside for redistricting (an amount that is extremely excessive given what it costs to redistrict other political bodies) is going to end up in the pockets of a politically-connected company to draw up the maps and a politically-connected law firm, most likely Barnes & Thornburg, to defend them. Of course, any redistricting before the 2011 election will end up with Republicans losing the court case and the maps being thrown out. Why exactly are we Republicans going down this road, unnecessarily wasting taxpayers money on a futile, not to mention illegal, cause?


Gary R. Welsh said...

Paul, This move suggests to me that the Republicans have concluded they will lose control of the council in 2011 if they are forced to run under the same districts to which they were elected. Control could shift simply from a shift in the at-large members. Ballard's chances of re-election are less than 50% at this point, and the at-large races tend to track the mayoral race. Someone probably misread the law, the Republican caucus was told bad information based on that bad legal advice, and they committed as a caucus to this plan. At that point, nobody wants to admit they are wrong. If the news media had picked up on the issue, I think they could have pressured the Rs to abandon this highly partisan and misguided move. It is disappointing that the attorneys on the council are either badly misinformed or too blatantly partisan to care about the rule of law.

Paul K. Ogden said...

My guess is they (Lutz and Malone) are under such pressure when it comes to these political issues, they won't speak up and oppose Republican leadership, even though they have to know they are wrong.

To say Ballard's chances of winning re-electino are less than 50% at this point is being very, very charitable. I would say the odds are no better than 30% at this point, and that's being generous. He'll sink all the at-larges with him. Republicans have never won more than 14 of the 25 district seats so that means that if they lose the four at large seats they lose the election.

Bottom line is that even though the $580,000 will be wasted, the taxpayer money will end up in the pocket of political supporters of the administration who proposed this nonsense.

Paul K. Ogden said...

I also meant to say that I don't quite agree that the at-larges track the Mayor's race. The at-larges represent base line voting. A popular mayor would be above the baseline or an unpopular mayor, like Ballard, would be below the baseline. Nonetheless, the mayor will have any impact on at-large voting, including with the all important turnout. An unpopular Ballard in 2011 will kill Republican turnout.

Patriot Paul said...

Is this the same Robert Elrod, who as general counsel, wrote the poorly worded panhandling proposal 237 to which his name is attached? Considering the proposal went back to committee and had a couple of insertions and deletions, yet was later approved, despite it's continued language problems, leaves me wondering.

Gary R. Welsh said...

To be fair to Elrod, he may have just been doing what his client instructed him to do.

Paul K. Ogden said...

They clearly cannot redistrict using new census data after November 8, 2010 until the day after the 2011 elections.

It has been suggested to me that they might redistrict for the 2011 elections BEFORE 11/8/2010 using old census data. Now that they can legally do. But that's not what they're telling people they intend to do.

AI, I agree Elrod is probably just doing what his client wants.