Okay, what’s next?
UPDATED MARCH 25, 2023
Governor Lee signed the new law to shrink the size of the Metro Council on March 9, 2023. You can see the text of the final version in Section 1 of this document. This punitive law will create chaos in Metro for the foreseeable future. I suspect it will be the better part of a decade before the city fully finds a new normal for how its legislative body works. The chaos will be front-loaded, but it is going to take a long time to work out the uncertainty.
There are too many variables today to be able to predict basic things like whether we will have a Council election in August 2023. And if we do end up with a Council election this year, there is no way today to predict whether it will be for a 20-person Council or a 40-person Council. Anyone who tells you otherwise will be speaking in terms of probability or likelihood or what they think is going to happen.
So how can we make sense of the events that are going to unfold in the coming months? For me, the starting point is to understand the few facts that we are sure about, recognize the most immediate problems to address, and to have a few core principles to rely on in making decisions.
The basic facts
The new law requires that our Council be no larger than 20 members by the time we have our next general metropolitan election, which is August 2023.
The new law says that, if the current Council “fails” to take the action necessary to create the smaller Council size and districts in time for the August 2023 election, our terms are extended one year through August 2024 and the election commission is ordered to set a Council election in August 2024.
The Council has the power to choose the size of the Council up to 20 members, and the power to choose how many at large seats there are, if any.
The Planning Commission is required to “establish district boundaries using the most recent federal census” within 30 days after the effective date of the law, which was March 9. That means the Planning Commission is required to act by April 8.
Each of these basic facts will raise substantial legal questions, many of which will be rare or unique. When lawyers talk about rare or unique issues, you should hear “the results are unpredictable.”
Recognizing the most immediate problems to watch
Media reports that Metro Legal is expected to sue the State soon and that a private group is planning to sue also. Almost all of us are going to be bystanders to these lawsuits. The best we can do is to stay aware of the scheduling in the cases. I’ll be tracking when injunction hearings will be held and decided, and how fast appeals move forward.
During the election litigation spawned in recent years by flawed referendum attempts, trial courts have been able to rule on injunction motions within 2-4 weeks after a lawsuit is filed. Expect a similar timeline here. (MARCH 25, 2023 UPDATE: There is a court hearing set on April 4, 2023, to decide whether the new state law is enforceable. Expect the court to issue a formal decision within a few days after the hearing is over.)
In the recent elections suits, the Tennessee appellate courts took months to rule. That won’t necessarily be the case now. To be blunt, when the Court of Appeals has moved slowly to rule on the Davidson County Election Commission appeals, the subtext has been that the Court of Appeals was signaling that the Election Commission appeals weren’t going to succeed. They moved slowly because there was no reason to hurry. If the Court of Appeals senses that an appeal may have merit, they are quite capable of moving quickly. A key factor to watch is whether the Court of Appeals commits to a rapid appellate process.
The new law is awkward in that it orders the Planning Commission to draw maps within 30 days, while giving the Council the power to establish the number of district and at large members.
There is a chicken/egg problem in that we either will see the Planning Commission draw multiple maps with different numbers of districts, or we will see the Council latch early onto a particular number without first getting input from Planning about what it might look like.
(MARCH 25, 2023 UPDATE: The Planning Department is moving forward with trying to draw maps. Absent court intervention, state law requires the Planning Department to recommend something to the Council. Planning released two early version maps yesterday. Within hours, I was hearing from neighborhood groups who don’t like the maps.)
I think we will know in the next few weeks which way this breaks. In particular, Council members were advised yesterday that CM Courtney Johnston plans to file a resolution for our March 21 meeting to set the Council size at 20, with 17 district and 3 at large members. For reasons I’ll discuss below, this resolution is premature and it should not be adopted on March 21.
(MARCH 25, 2023 UPDATE: CM Johnston did file a resolution for a 17-3 split. The Council had a specially set meeting on March 22 to consider the resolution. By the time the meeting started, there were 8 ideas on the table. They included 20-0, 17-3, 16-4, 16-4 (with regional superdistricts instead of at large members), and 15-5. Another two ideas would ask the Planning Department to draw maps for 2 configurations and 4 configurations, respectively. And the final idea was to get more, better information and public input before deciding. In total, the Council held 3 meetings in 7 days to consider all of this…and it was clear there was no consensus around any one specific breakdown. In fact, informal polling suggested that no configuration idea had the support of more than 20% of the Council. This should not be a surprise. When people predicted “chaos” from trying to do a forced once-every-60-year process in a matter of days, this is what it looks like. The reality is that we should be in the “no idea is a bad idea” phase at this point. In the end, the only consensus we could find was to gather more and better information. The decision was to defer all of the specific configuration ideas until our regularly scheduled April 4 meeting, and also to set a public hearing on April 4 so we could hear from all of you about this important process.)
The first day to pick-up a qualifying petition from the Davidson County Election Commission is March 20, 2023. The qualifying petition has a blank to fill in for what race you are entering.
If a candidate picks up a form on March 20, they will have no ability to know what district they live in — is it their current district or an unknown future district?
It is also not clear to me whether the Davidson County Election Commission will accept a completed qualifying petition for the current districts. I think Election Commission professional staff will be as helpful as they can be to assist candidates in understanding the latest information. But the Republican control over the Davidson County Election Commission suggests to me that the commission will stick hard to the idea that there is no 40-member election in August 2023, absent a court order to the contrary.
I imagine that some candidate will pick-up a petition on March 20, write in the name of a current district, get the necessary signatures, and try to return the completed petition to the Election Commission. We’ll all be interested to see what happens with that. I suspect that the commission will not accept a completed petition for a current district (absent a court order striking the new state law).
(MARCH 25, 2023 UPDATE: The Election Commission decided to provide qualifying petitions for the current Council configuration. They are having candidates sign written acknowledgements that the law may change and they may have to start over again. That is allowing Council candidates who want to start the process in the face of uncertainty to do so. Whether they’ll have to re-do the work later remains an open question.)
While all of this is playing out, I expect the Council to have limited bandwidth to deal with other issues. I think that may play out in unpredictable ways. The main thing we need to watch out for is to make sure that something of real substance doesn’t slide by and become law while we are distracted with this force-fed redistricting.
Core principles to guide decision-making
(MARCH 25, 2023 UPDATE: Everything from here to the end remains unchanged. These have been my core principles over the last few weeks and I expect them to remain unchanged.)
My top core principle is that the new district map must be the best it can be including full attention to ensuring racial and ethnic representation that matches the population in Nashville. Unless a court strikes down the state law, we will have a new map setting Council representation through 2031, and that map will have ripple effects for decades to come. Hurrying or cutting corners at the cost of getting the right diversity in representation is not acceptable under any circumstances.
In practice, it would be a mistake for the Council to decide on the breakdown between district and at large members without getting input from Planning about the impact of different choices on representation in the Council. Consider this data about the impact of the at large seats on fair representation:
If you go back and look at the at large members since 1999, they’ve been 26.7% black (8 out of 30). Since 2015, they’ve been 40% black (4 out of 10). During this period, the five at large seats have increased overall racial fairness in the Council.
If there had been only four at large seats instead of five since 1999, the black representation in the at large seats would have been 20.8% (5 out of 24).
If there had been either two or three at large seats since 1999, the black representation in the at large seats would have been 16.7% (3 of 18, 2 of 12).
If there had been one at large seat since 1999, the black representation would have been 0% during that time.
This is only one factor that will impact racial fairness when a new map is adopted. A core principle for me is that I cannot support any particular breakdown between district and at large members without a full understanding of the options and the implications of each.
Another core principle for me will be to understand what additional resources are going to be made available to district members. If we were to pick 20 districts and no at large members, for example, I’d want to see the salary increased a lot as well as dedicated office space and staff members for each council member. Otherwise, I just don’t think they’d have the ability to be an appropriate counterweight to the Mayor’s Office. The district council members can be leveraged by any Mayor’s Office much more than at large members can. In a 20 district member scenario, they would need adequate resources to push back on that leverage. I am not prepared to decide on the split between district and at large members without having some sense of what the resources will be.
Way down the list of considerations is whether the current Council has to serve an additional year. I believe the term limited members (like me) are united in not wanting the extra year in office. Due to existing term limits, we have all had to make life and career plans based on exiting Council service in a few months. Changing that is not our first choice and, if the extra year gets added, some may resign. More will serve the additional year. This factor introduces more chaos and more unknown, but it can’t be a consideration that causes us to shortchange the core principles.
To wrap up — during the coming months, we’ll have to deal with lots of uncertainty. I’m not expecting everyone to agree with my core principles. I would encourage everyone in a position to make decisions, whether it is the Planning Department, Planning Commission, Mayor’s Office, Metro Legal, or the Council, to think through your principles for this process. The high uncertainty and rapidly changing landscape will be overwhelming without a North Star to follow. I think the goal of achieving fully vetted, fair representation with adequate input from the public has got to be that North Star.