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By Marilyn Odendahl

The Indiana Citizen

August 29, 2023

The city of Anderson Common Council and the Madison County Board of Elections say the lawsuit filed against them for failing to redraw the council maps last year should be dismissed because the plaintiffs have not shown that voters have been disenfranchised because of their race.

 However, the plaintiffs accuse the defendants of erecting a straw man argument, asserting their lawsuit does not make any claim of racial discrimination. Rather, their argument is the electoral districts are malapportioned in violation of the equal protection clause of the 14^th Amendment.

Every 10 years after the release of the new U.S. census numbers, state legislatures and city councils across the country are required by law to redraw their voting districts.

In other redistricting cases, lawsuits sometimes break out over redrawn maps and accusations of unfairly drawing new districts to disenfranchise certain voters.

But Anderson stands out because the redistricting dispute is about the lines not being redrawn. The city has not redistricted since 1980, and in December 2022, the Common Council members voted unanimously to keep the old maps in place.

In their lawsuit,  – Common Cause Indiana et al. v. City of Anderson Common Council and the Madison County Board of Elections, 1:23-cv-1022 –  the plaintiffs claim the Anderson maps have a population deviation of 46%, well above the cap of 10% the courts have set. As a result, the districts in Anderson vary widely in size from 7,490 people to 11,644.

The plaintiffs assert the residents in the overpopulated District 3 have been deprived of their votes being “approximately equal in weight” to the votes of the residents in other districts. This violates the equal protection clause.

They filed their lawsuit in June, asking the U.S. District Court for the Southern District of Indiana to declare the Common Council has violated the Constitution and state law. Also, they want the court to order a remediation plan that complies with the 14^th Amendment and Section 2 of the Voting Rights Act of 1965 which prohibits racial discrimination in voting.

 The Common Council and the election board do not use their motion to dismiss to directly respond to the plaintiffs’ allegations. Instead, they argue that the plaintiffs failed to show the maps used in the May primary caused any race or color discrimination in violation of Section 2 of the Voting Rights Act.

In a footnote, the defendants assert if the plaintiffs could have drawn upon census data to prove their argument that votes were diluted on the basis of race, they would have. “Its absence from the Plaintiffs’ Complaint speaks volumes,” the defendants say.

Moreover the defendants attack the plaintiffs’ proposed solution. The Common Council and the election board assert such the remedy “will strip the rights of voters and candidates who have already participated in the electoral process.”

The plaintiffs, in their complaint, call for stopping all elections in the malapportioned districts after the November 2023 contest. Then the terms of the council members in the single-member districts should be shortened and they should run again in their new districts in special primary and general elections held coterminous with the May and November elections scheduled for 2024.

Pointing to the plaintiffs’ court filings, the defendants charge their opponents are using “conclusory labels” like “malapportioned” and “invoke an inflammatory” remedy for relief.

“Anderson Council reiterates nowhere in the Complaint do Plaintiffs actually allege that the Anderson Council Districts used in the May 2, 2023 Primary Election actually yielded an election outcome indicative of racial or color discrimination,” the defendants argue in their motion. “Choosing to ignore that fatal error, Plaintiffs demand that this Court enter drastic injunctive relief, including shortening the terms of duly elected officials and essentially asking for a ‘do-over’ by ordering special election in 2024, ignoring how voters and the candidates who won the May 2, 2023 Primary Election are currently preparing to participate in the November 7, 2023 General Election.”

Claiming the defendants have mischaracterized the complaint, the plaintiffs respond their lawsuit does not contend the defendants have violated the Voting Rights Act. Instead, they argue exclusively that the malapportioned electoral districts violate the equal protection clause.

The plaintiffs also maintain they have proposed a “cognizable and firmly-established constitutional” solution.

“Plaintiffs here are not seeking to have candidates removed from the ballot three weeks before an election,” Common Cause and the other plaintiffs assert. “Rather, the relief sought by Plaintiffs would in no way interfere with the administration of the upcoming November 2023 election. Instead, Plaintiffs request injunctive relief that would go into effect in 2024, including ordering special elections to be held coterminous with the May and November 2024 elections.”

Separately, the defendants question why the plaintiffs waited until after the May primary to file their redistricting lawsuit. The plaintiffs answer, in a footnote, the complaint was filed after the Indiana Senate failed to advance a bill that would have reset the deadline for redistricting from Dec. 31, 2022, to May 15, 2023.

The Common Council and the election board seize upon their opponents’ arguments in their reply brief. The defendants assert the plaintiffs have pleaded themselves out of court by raising new claims in their response brief they did not raise in their complaint.

Again, the defendants claim the plaintiffs “slept on their rights” by filing their complaint after the May 2023 primary, even though the Common Council had given advance notice it would be discussing redistricting at the December meeting. The plaintiffs’ argument that they were waiting to see if the Indiana General Assembly would extend the deadline was not made in the complaint.

“Plaintiffs had clear and unequivocal notice of Anderson Council’s decision on the redistricting and the time to take action was effective December 11, 2022 – not six months later, after a primary election had already been held,” the defendants assert.

Also, the defendants maintain the plaintiffs did not show racial discrimination. They assert since the plaintiffs are requesting the court enjoin future elections pursuant to Section 2 of the Voting rights Act of 1965 which prohibits racial discrimination in voting, the plaintiffs had to show racial discrimination occurred in the May 2023 primary.

As part of their reply, the defendants swipe back at the plaintiffs’ accusation they did not read the complaint.

 “Somebody obviously did not closely read Plaintiffs’ Complaint, but it wasn’t Anderson Council,” the defendants contend. “In this instance, Plaintiffs seek to excise their race discrimination allegation from the Complaint to avoid the obvious embarrassment that they are requesting an injunction to bar race discrimination in voting practices, but cannot allege the predicate existence of race discrimination.”

The Southern Indiana District Court has not indicated when it will issue a ruling on the motion to dismiss.

Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.