DeKalb residents say representation needed now

The six remaining members of the DeKalb Commission have deadlocked on five finalists for the job, knowing that whoever they pick would become an instant swing vote.

Meanwhile, Ellis’ case remains unsettled. A hung jury resulted in a mistrial in October. Ellis faces a retrial June 1 on charges that he shook down contractors for campaign contributions. A guilty verdict would likely further delay representation for the area if Ellis decided to appeal.

Options for resolution

DeKalb District 5 at a glance

Population: 143,558

Race and ethnicity: 92 percent black, 3 percent white, 3 percent Hispanic, 2 percent other

Median household income: $48,432

Residents below the poverty line: 17 percent

Source: 2010 U.S. Census

It seems clear to state Rep. Pam Stephenson: Her constituents are being wrongly denied the right to representation on the DeKalb County Commission.

And, if the county’s elected politicians can’t find a way fill the abandoned southeast DeKalb seat, then maybe the courts can, said Stephenson, D-Decatur.

“Everybody has the right to have someone represent them,” said Stephenson, who is an attorney. “That’s what elections are about; that’s what the Voting Rights Act is about; that’s what the Department of Justice is in place to ensure.”

Maybe. Or maybe not.

Voting rights experts say it’s unfortunate that no one has been appointed to the seat that was once occupied by Interim DeKalb CEO Lee May, but they disagree over whether the predicament is a violation of laws meant to ensure democratic representation. Some residents are trying to find a way to force a special election.

In July 2013, Gov. Nathan Deal selected May to become the county’s temporary top executive after suspending CEO Burrell Ellis, accused of corruption. Many assumed it would be just a matter of months before Ellis would be convicted or exonerated, and the southeast DeKalb area would regain representation. But a jury was unable to reach a decision in Ellis’ case, and a mistrial was declared last October. Now, he’s scheduled to face a retrial in June.

That leaves May — and his district — in limbo. May has resisted calls to resign his commission seat, which would clear the way for an election, saying the only ones who want him to step down are his political opponents. Also, May would have no place to go if Ellis is found not guilty and resumes power.

“It certainly sounds like a political embarrassment, and it certainly sounds like people aren’t being represented,” said Michael Li, an attorney for New York University School of Law’s Brennan Center for Justice, which focuses on issues of democracy and justice. “But there isn’t a right to have an election, and no one’s vote is being denied or diluted, which is what the Voting Rights Act is designed to protect.”

In the absence of an election, state law calls for county commissioners to pick their peer. But commissioners — divided into factions of black and white, south and north — have repeatedly deadlocked on five candidates for the job.

“I do think there would be a case that people are not being represented,” said Vernon Burton, a history and African-American studies professor at Clemson University. “It’s a fascinating legal question. It points out to me the need for the Voting Rights Act.”

Laughlin McDonald of the American Civil Liberty Union’s Voting Rights Project said a lawsuit could be successful under the 14th Amendment of the U.S. Constitution, which guarantees equal treatment under the law.

“That’s an equal protection claim, and I think that’s obvious,” McDonald said. “The people of the 5th District are being treated differently as voters, especially given the racial composition of the area.”

In southeast DeKalb, 9 out of 10 of the district’s more than 140,000 residents are black.

Unlike racially motivated poll taxes or a redistricting challenges, it would be difficult for DeKalb residents to prove in court that they’re being disenfranchised based on race, said Eric Segall, a Georgia State University constitutional law professor.

“This doesn’t feel like a voting rights issue,” Segall said. “This is an example of something bad happening for which there’s no legal redress.”

The Department of Justice’s Civil Rights Division didn’t return repeated phone calls and an email seeking comment.

State legislators, county commissioners and residents have suggested the possibility of taking legal action. Many hoped that the commission would compromise on a candidate or that state lawmakers would require a special election, but those kinds of political solutions have stalled.

Unless the situation changes, the area could remain unrepresented until after the November 2016 elections.

Plaintiffs could potentially ask a judge to order an election or to declare the southeast DeKalb seat vacant, which would trigger a special election.

One of the five finalists to represent the district, Gina Smith Mangham, said a judge could order the commission to decide on a candidate.

“The whole commission is breaking the law,” said Mangham, an attorney. “I don’t see the need to have any further racial divide, and I don’t think it’s productive.”

Charles Bullock, a University of Georgia political science professor, said it was hard for him to imagine a situation in which a judge would choose a candidate because of the commission’s stalemate.

“It looks like it’s going to continue to drag out,” he said.