It Ain't Over Yet

City and Circle C Wait for Justice



illustration by Doug Potter



The courtroom scene on December 30 before a three-judge panel headed by federal District Judge Sam Sparks left tongues wagging at city hall for days. Gary Bradley, developer of the Circle C Ranch, was clearly seen whispering into the ear of Jose Garza, the attorney representing a group of minority plaintiffs who are trying to shut down the city's recent annexations for allegedly violating the federal Minority Voting Rights Act. The alliance has been deemed unholy by city hall standards. "Circle C being a party to a voters' rights case feels like a sham to me," observed Assistant City Manager and annexation czar Toby Futrell. The benefit to the newly annexed Circle C, and so to Bradley, if the city's annexations are reversed, is obvious -- Bradley could continue to operate his subdivision without the hassle of city regulations or taxes. The advantage to Garza? He's that much closer, he says, to forcing Austin to switch from citywide elections to a single-member district voting system.

With all the whisperings between Bradley and Garza, there appears to be some sort of connection there. Yet earlier queries made to Garza about his bonds to Bradley met with angry denials, despite the fact that Garza's co-counsel in the suit is Rick Gray, lawyer for the Circle C Homeowner's Association. When asked point-blank whether Circle C was footing his bill, Garza (brother of City Manager Jesus Garza) was indignant, insisting that civil rights lawyers like himself hardly ever see a dime for their efforts. And when the same question was put to Gray, he would only insist, "That's between me and Jose."

So exactly what is between them? Gray, Garza, and Judith Castro of the League of United Latin American Citizens (LULAC) joined up to sue the city immediately following the Dec. 18 annexation of Circle C, which completed the absorption into Austin of over 10,000 acres on all sides of the city. Concerned that the annexation of 29,000 people -- over 90% of whom are white -- would negatively impact the voting power of Austin's minority populations, Garza had begun gearing up months ago to challenge the city based on the Minority Voting Rights Act, which prohibits the dilution of minority voting strength. All he had to do was wait for the next time voting rights would be effected by the annexations -- the municipal election in September 1998. But when Gray read accounts of Garza's intentions in the Chronicle, he says, he wasted no time in contacting Garza to unite for the common goal of shutting down the city's annexation -- and on a faster timeline. Hearing that Circle C's elected municipal utility district (MUD) boards were being shut down by the annexation, Garza and Gray leapt at the opportunity to hook the MUD board's caboose up to the minority voting rights locomotive. Why wait to challenge the city's annexation until the next city elections, when you could challenge it today by claiming that the dissolution of Circle C's elected MUD boards was negatively impacting the voting rights of the residents who elected the boards? To make changes that affect voting of any kind, the city should have cleared it first with the Justice Department, Garza claimed. "MUDs are elected bodies," Garza explains. "You can't just dissolve them because you want to annex territory."

The three-judge panel sided with Garza on that issue, and reinstated the MUD boards pending a Justice Department review. The Statesman's top headline the next day jubilantly proclaimed: "Circle C annexation violates voting law, judges rule." But is that what really happened? The city's independent counsel, Karl Bayer, insists that the headline is "absolutely wrong"; not surprisingly, Gray and Garza insist that it is absolutely correct. Unfortunately for both sides, however, there are few absolutes in this case and the ruling reflects that ambiguity.

Garza and Gray came to the court seeking four things: that the annexations be halted, that the MUD boards be restored, that all MUD money be kept separate from city accounts, and that the city submit its annexations to clearance through the Department of Justice. Gray and Garza were victorious with the temporary reinstatement of the MUD boards, but keep in mind that the boards are in a state of suspended animation, with all administrative and financial authority left to the city. And the judges declined to stop the annexation, deciding instead to wait and see what the Justice Department has to say. As for the rest of the lawsuit, the city had, in fact, already filed for clearance of the annexations with Justice on December 24, and was already keeping MUD money in separate accounts.

Despite his involvement with the Circle C legal team and his help to the MUD boards, Garza refuses to fess up to any relationship with Circle C developer Bradley. "I can't stop people from walking up to me and telling me what they think," says Garza of his hushed courtroom conversations with Bradley, denying even being aware that Bradley was in the room prior to their little chat. He says Bradley had useful information about MUD laws, which Garza says is outside of his expertise as a voting rights activist.

Garza adds that his compromise on the suspension of the MUD boards -- they now have no real power -- shows where his true interests lie. "If I was the mouthpiece for the MUDs, how could I [compromise] that in good conscience? Part of this is a bait-and-switch kind of deal," he continues. "The city doesn't want you to look at the impact this [annexation] has on minority voting strength."

So who won? Well, contrary to the Statesman's headline, no violation of the Minority Voting Rights Act has yet been proved, and we won't know whether the dissolution of the MUD boards or the annexations in general violated the act until Justice rules. The city's lawyers have already successfully lobbied Justice for "expedited consideration," since the court's ruling freezes the assets of the MUD boards, assets the city is counting on for maintenance of individual MUDs. To Garza, the quickened pace just looks like another way to squeeze his concern for minority voting rights out of the picture. "It puts us in a crunch, and they're the ones with all the cards," he complains.

Garza's got a point there. The city has definitely stacked the deck in its favor. The decision by Justice will hinge on the cases made by the opposing sides, just as in court but with fewer formal constraints. And since the argument over minorities and voting strength all comes down to the numbers, the city has imported the top dogs in the field to help crank them out: Dr. Allan J. Lichtman, chair of the Department of History at American University, who has been an expert witness in more than 60 federal voting rights cases and author of several quantitative historical analyses of voting, and Gerald Hebert, a former Minority Voting Rights Act legal specialist at Justice. Both men refused to comment on their fees or their strategies for making Austin's case, but Gray made available 40 pages of demographic analysis of Austin's minority voting patterns which Lichtman was commissioned to produce as soon as the annexations began in September.

By contrast, Garza's team is the minor leagues, operating on a "shoestring" budget: $2,000 each to Dr. Jorge Chapa, minority demographer at the LBJ School of Public Affairs, Dr. Bob Brichetto of Our Lady of the Lake University in San Antonio, who is analyzing Austin's minority voting patterns, and George Corbel, a lawyer working on a redistricting plan for a single-member voting system.

The two teams are coming up with starkly different numbers. Lichtman's study concludes that Austin's population is about 23% Hispanic and 12% African-American, and that the annexations will reduce the percentage of minorities in Austin by less than 0.5%. Chapa assures the Chronicle that the numbers he is still formulating will be quite different. The differences in the two team's results may make it a tough call at Justice.

Garza points out, however, that Justice will not decide its case solely on the numbers. "They'll look at the annexation together with the election system that the city has chosen to use. When you look at it in that light, then I think the adverse effect on the minority community is a little bit more evident," he says, citing the 1997 city council election as a prime example of the weakness minority voters already suffer in Austin. Former Councilmember and African-American Eric Mitchell lost his seat despite the overwhelming support of African-American neighborhoods, Garza points out. "If these [newly annexed] voters had been in place in 1997, what would have been the effect on Gus Garcia's race?"

Garza has been a booster of changing Austin's at-large election system to a single-member system for decades, and he hopes that his suit may force the change on Austin. Despite the fact that the recent city charter election makes another election amending the charter to include single-member districts impossible until November 1999, Garza contends that Justice could impose a single-member system on Austin from above.

Futrell points out the irony, however, in Garza's push for single-member districts and the plaintiffs he chose to list on his lawsuit. Eastside activists Gavino Fernandez and Dorothy Turner, speaking at a press conference this summer on the possibility of switching to single-member districts, both argued that the system would hurt their neighborhoods by confining their influence to one council member instead of all seven. However, both Fernandez and Turner were more than happy to sign on to Garza's lawsuit, which has at its base a drive to switch to single-member districts.

Fernandez says that the difference now is the annexations and his fear of being out-voted. "I would feel more secure and safe to have the federal government come in and direct the City of Austin to come up with an alternative method of electing our city council," he says.

Meanwhile, though, he and Circle C aren't waiting around. Fernandez admits that his Eastside neighborhoods council, El Concilio, has been meeting with Circle C homeowners to draw up a list of possible candidates to run against this city council when they come up for election in the Spring of 1999.


This week in council: All the good stuff is happening in executive session, as usual, including discussion of the sale of Mueller Airport, the city's suit against Horse Thief Hollow Ranch, and the city manager's salary. All we the people get are zoning cases and a resolution for a Waller Creek plan.

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