LITTLE ROCK — The federal judges considering whether a state Senate district’s boundaries violate federal law should not prevent the state from certifying the results of Tuesday’s election in which a black incumbent lost to a white candidate, Arkansas’ attorney general told the judges Thursday.
The judges are deliberating on issues raised in a lawsuit filed by a group that contends that the boundaries of Senate District 24 in eastern Arkansas violate the Voting Rights Act and the U.S. Constitution. That group asked the three judges on Wednesday for a temporary restraining order to keep the state from certifying the results until the panel rules on whether the boundaries are legal.
Certifying the results in District 24 before the case is decided would cause irrevocable harm, the plaintiffs’ motion said.
Voters in the district’s Democratic primary selected Rep. Keith Ingram, D-West Memphis, who received about 60.5 percent of the vote in defeating Sen. Jack Crumbly, DWidener, a plaintiff in the suit, according to unofficial results.
The suit claims the state intentionally drew Senate district boundaries to dilute the opportunity for black voters in District 24 to elect the candidate of their choice.
The district’s lines violate Section 2 of the Voting Rights Act of 1973 as well as the 14th and 15th Amendments to the U.S. Constitution, which were ratified after the Civil War to protect blacks’ civil rights, the plaintiffs say.
Chief U.S. District Judge J. Leon Holmes, U.S. District Judge Susan Webber Wright and 8th U.S. Circuit Court of Appeals Judge Lavenski Smith, a former Arkansas Supreme Court justice, heard the case May 7-10 in Helena-West Helena. On May 11 they ordered that the primary take place. They have not set a deadline for rendering a decision in the case.
Attorney for the plaintiffs, James Valley, said he expects that the court will quickly issue an order on delaying certification.
The temporary restraining order will likely depend on four items, as set in the 1981 Dataphase Systems, Inc. v. C L Systems, Inc. case from the 8th Circuit. They are the threat of irreparable harm, the balance of harm between the parties in the litigation, the probability that the party who moved for the restraining order will succeed, and the public interest.
Gov. Mike Beebe, Attorney General Dustin McDaniel and Secretary of State Mark Martin are defendants. They make up the Arkansas Board of Apportionment, which drew state House and Senate district boundaries to account for population shifts found in the most recent U.S. Census, which occurs every 10 years.
The attorney general’s office, which is representing Beebe and McDaniel, said in a motion filed Thursday that the plaintiffs are trying to do an end run around the court’s order that the primary be held.
“The court held that citizens’ votes are significant — which is true only if the votes are actually counted, certified, and recognized to the fullest extent of the law absent a final decision that the election was unlawful,” it states.
Valley said he thinks the judges wanted to see who would win the election, especially since the plaintiffs’ expert witness asserted Ingram would win, while the state’s expert asserted that Crumbly would win.
“My private suspicion is they were waiting to see what happened. It mattered how this election turned out,” he said. “We’re just trying to hold everything in the status quo until they make a decision.”
The attorney general’s motion argues that Crumbly’s loss in the election does not prove the plaintiffs’ case and states that if the plaintiffs wanted to use the election as evidence, the trial should have been held after the election.
Arkansas Code Annotated 7-7-203 (e)(1) gives a county board of election commissioners up to 10 days to certify the results of a primary election. In this situation, that would make June 1 the deadline.
The plaintiffs claim in their motion that if the court were to rule in their favor but not order a new primary to take place this calendar year, Crumbly would lose his seniority position when the Senate convenes in January.
If another primary took place this calendar year and Crumbly won, he would be the second most-senior member of the chamber.
“Something is being lost that no court order can restore after it is gone,” the motion states. “Once the chain of events is broken, it cannot be mended.”
The attorney general rejected that position.
“This court has well-established remedial authority under the Voting Rights Act to set aside election results (whether certified or not) and order a new or special election if the court determines that there has been a violation of the Voting Rights Act,” it states.
Much of the plaintiffs’ argument at the trial centered on why the board chose to remove about 10,000 black voters in the western half of St. Francis County and replace them with nearly double the amount of voters from northern Crittenden County, which has more white voters.
The plaintiffs’ argued that placing more white voters in the district diluted black voting strength.
“These results of this election were forecast long ago when the Board of Apportionment designed the district as it did,” the plaintiffs’ motion states. “The Board of Apportionment knew, without a scintilla of doubt, that this district would strongly favor a white candidate from Crittenden County.”
Ingram received 6,117 of 10,101 votes cast in the primary. Crumbly received 3,984.
District 24 includes all of Crittenden County and parts of Cross, Lee, Phillips and St. Francis counties.
The precinct-level election results show that Ingram’s strongest base of support is the contested area that was added to District 24.
The vote breakdown by county was: Crittenden: Crumbly 1,394, Ingram 3,747 Cross: Crumbly 130, Ingram 70 Lee: Crumbly 434, Ingram 345 Phillips: Crumbly 1,220, Ingram 1,452 St. Francis: Crumbly 806, Ingram 502 Within Crittenden County, Ingram won all but 10 precincts. The precincts that went to Crumbly had low turnout or close margins. In the nine St. Francis County precincts in the district, Crumbly won four precincts. Some of the precincts that went to Ingram had low turnout or close margins.
Front Section, Pages 1 on 05/25/2012